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Sudeten restitutions could bypass Lisbon

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Prague – According to MEP Jan Březina, Sudeten Germans have a chance to seek the restitution of property they had to give up after the second world war at European courts.

And this has nothing to do with the Lisbon Treaty, which President Václav Klaus is refusing to sign for this very reason. Instead, it’s tied to an April ruling of the European Court of Justice in the case of Apostolides. The ruling made the British owners of a house that they bought legally give ti back to its original owner, a citizen of Cypress, from whom the house was confiscated.

The house was confiscated in 1974, 30 years before Cypress joined the EU.

Březina: Klaus sees a threat where there is none
“The case created a precedent, that Sudeten Germans could use in making their property claims and thus completely bypass Czech courts and institutions. If they were to succeed in with the case with a German court and then were to ask a Czech court to carry out the ruling, the Czech court would be facing a finished case and would need to simply carry it out,” says Březina.

Ivo Šlosarčík, an expert on European law, says it’s not so clear cut, and that this procedure doesn’t necessarily need to automatically apply to the the post-second world war situation in Europe. “The [ Apostolides] case has to do with the acceptance of the rulings made by a court in a foreign country. In order for Sudeten Germans to file claim for property in the Czech Republic, they a German court would first need to rule that such a claim is justified. That’s not happening right now,” says Šlosarčík.

At the same time, Šlosarčík says that the recent ruling by the European Court of Justice was a surprise for many legal experts. “But it is just one case, pertaining to the specific situation of northern Cypress,” he adds.

But Březina says he believes that Klaus’s refusal to sign the Lisbon Treaty will not resolve anything.

“I think that President Klaus’s condition that an exception be made to the Charter of Fundamental Rights is meaningless and will not protect anyone. I’m afraid that it could only create the illusion of security, and waking up to reality would be all the harsher.”

That’s why Březina is asking Czech PM Jan Fischer to try to “fix the hole in European laws”.

“The government should entrust the Czech justice minister to negotiate a change in the charter, so that the acceptance of rulings would only apply to cases that involve European law. That could help ward off the danger of going against the Beneš decrees,” says Březina, noting that if the Czech cabinet uses this condition in trying to negotitiate the ratification of the Lisbon Treaty, it has a greater chance of success.

Jiří Přibáň, who specialises in European law at Cardiff University, notes that the Apostolides case cannot be interpreted as a precedent for the potential restitution claims of Sudeten Germans expelled from Czechoslovakia after 1945.

“It is necessary to remember that generally the Charter of Fundamental Rights does not work retroactively and that the Beneš decrees, based on which the expulsion took place, has nothing to do with European laws. The Frowein report for the European Parliament states that,” says Přibáň. “How many Sudeten Germans, whose property was confiscated, are even still alive? And I think that their grandchildren probably don’t have much interest in this. They’re living their own lives now.”

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