The European Parliament discussed on September 21 the so-called Frowein Report completed on September 12. The report including the legal analysis of the Beneš Decrees and the criteria of the Czech Republic’s accession to the European Union has not evoked so much attention as it has been expected.

The Beneš Decrees, however, have been put under different spotlight after the concerns of the new Dutch cabinet about the accession of the Czech Republic to the European Union and the following cabinet crisis. All EU countries in line with their legal order must ratify the accession of a new member to the European Union. We must, however, distinguish the legal aspects of the issue from the political ones. If a EU country’s law making authorities or a referendum in these countries will not ratify Slovakia’s (or the Czech Republic’s) accession to the European Union, it is still not evidence that the Beneš Decrees are controversial with the law of the European Union, but is a clearly political decision. The German parliament could this way theoretically easily veto the accession of Slovakia or the Czech Republic to the European Union, considering certain regulations of the Slovak or the Czech laws (decrees) illegal even contrary to the official stance taken by EU legal experts.

The experts’ report made at the request of the European Union has been prepared by three legal experts: Jochen Frowein from Germany, Ulf Bernitz from Sweden and Lord Kingsland from Great Britain. The first curiosity of the report is that the compliance of the Beneš Decrees with the European laws was examined only in the case of the Czech Republic, Slovakia was omitted by the mandate given to the three experts by the European Union. Although according to the finding of the examination of the Czech legislation could be also applied mutatis mutandis to the Slovak legal system because of the similarity of the cases, the mandate of the report did not allow the examination of the Slovak law. The omission of Slovakia from the reports is likely due to political causes: on one hand Slovakia is not as highlighted because of the Beneš Decrees as the Czech Republic, since the fate of the German ethnic minority in Czechoslovakia after the WWII could hardly be compared to that of the Hungarian ethnic minority. On the other hand the issue of the Benes decrees are emphasized by the Bayer CSU, which nearly won the elections, in the favor of its voters who are descendants of the Sudeten Germans ones living on the territory of Czechoslovakia. Edmund Stoiber, leader of CSU and candidate for the post of chancellor, devoted a part of his election campaign to the Beneš Decrees, moreover, he had two German legal experts worked out a report on the basis of which- contrary to the Frowein-report- Stoiber initiated the abrogation of the Beneš Decrees. The report by German legal experts Rudolf Dolzer and Martin Nettesheim, according to which the Beneš Decrees are contrary to the legal order of the European Union, has not been so far published in full extent.

Since Slovakia is not a member of the European Union neither the founding treaties nor the secondary laws based on them are binding for Slovakia. The main obligation of Slovakia towards the EU is keeping to the Association Agreement signed on October 4, 1993 and published in the collection of laws as law No. 158/1994. From Slovak point of view it is a “traditional” international agreement, which according to the Vienna Convention on the Law of Treaties and the international unwritten law, is binding for Slovakia and overrules the Slovak law in a sense that a contracting part violating the agreement on the basis of a Slovak law will not be exempt from its obligation to keep to the agreement.

From the viewpoint of the EU the association agreement is a so-called mixed agreement signed by the EU as a legal entity and by all member countries. The agreement itself does not give a large space to the human rights. According to the Article 6 of the agreement, among its basic principles are the respect for the democratic principles and human rights established by the Helsinki Final Act and the Charter of Paris for a new Europe.

According to the Slovak and the Czech system of compensation, as it has been pointed out by the United Nations Commission on Human Rights, applies discrimination in some field, but it cannot be questioned on bases of the EU legal order. As it issues from previous reports, it is questionable whether those who had been sentenced for collaboration with the Nazi Germany, but have not been punished can be punished. One cannot revise the cases of those who have been granted a pardon in 1946, because if they were found guilty, they should have been punished in a defined term from sentencing them. The team of the EU legal experts considers the more questionable the law on restitution from 1992, because it allows compensation only for Slovak citizens. It does not apply to those who have been deprived of their citizenship after had been deprived of their rights to it. According to them it could be debated whether this law is in line with the principle that people cannot be discriminated on the basis of their nationality. Several former reports state that the confiscation of the properties of Sudeten Germans and Hungarians living in Czechoslovakia could not be considered a violation of the European legal order, since the EU did not exist at that time, and the European law does not concern property or citizenship issues (except for some special cases).

Before we would make any conclusion, a basic fact should be pointed at: the principle of the collective guilt, depriving people of their property on the ethnical basis is contrary to any democratic principle based on human rights. The legal theory, however, apart from the valid, i.e. legally passed and published, therefore applicable law and the illegal, i.e. ones applied but later legally abrogated law; also knows the notion of the so called obsolete, or not used legal norms. These are legal norm which have not been abrogated in a way prescribed by law, i.e. they are formally valid, but the courts do not apply them in decision making, so they have no effect in the practice. However several questions arose, some courts would still refer to these “ norms out of use” in their decision-making. Due to lack of space will deal with these issues in a more detailed analysis.

Some Austrian media have disputed the professionalism of the report by Jochen Frowein, several other organizations, among them also the CLA-Kalligram, pointed at the discrepancies between the Beneš Decrees and the European law. The legal reports does not rule out that some cases will have a continuing at several European court, so it is probable that these lawsuits could bring the remedy for the collective guilt declared by the Beneš Decrees.