Memorandum on the Beneš Decrees

Center for Legal Analyses-Kalligram Foundation




Institutional Statement

The Center for Legal Analyses-Kalligram Foundation tries to outline such cases that could have an impact on the present Slovak legal system and on the Hungarian ethnic minority in Slovakia. The aim of this brief is explore the issue from an exclusively legal point of view; from the frameworks of both Slovak and European legislation. CLA-Kalligram emphasizes the lack of sufficient data and documentation, which have an impact on the issue.



I. Slovak Legislation



The Beneš decrees issued in the period between 1940 and 1945 had a power of law or constitutional law in inevitable cases and on the recommendation of the cabinet. Their effect was later approved ex tunc by the Temporary National Assembly: the one-chamber lawmaking body of Czechoslovakia, exercising its power from October 1945 until May 1946, by constitutional law No 57/1946, collection of laws.


As for the legislative process, it is necessary to mention that the decrees had been prepared by the cabinet and discussed, as was usual, by the State Council before they were declared by the President. According to the regulation of Article 3 of the constitutional decree from October 27, 1942 No. 12/1942 Ur, Vest csl, the president of the republic in the frame of the preparation of draft decrees was obliged, when executing legislative power, “to ask for an advisory report from the State Council, if the cabinet did not do so”. After the State Council was dismissed  as of April 4, 1945 (order of the prime minister from April 4, 1945 No 2/1945 Collection of Laws) the decrees, depending  on  their character and territorial range of their effect, were discussed also in the Slovak National Council. In accordance with these rules, the decrees were always referred to with annotation that they had been issued “on the recommendation of the cabinet” or “after agreement with the Slovak National Council.” Similarly to other laws the prime minister and the relevant members of the cabinet and in the case of the constitutional decrees they had to be signed by every member of the cabinet signed these decrees.  The proceedings of governments in exile were similar, when the legislative and executive power was in a state of emergency during occupation (as in the Netherlands).


The decrees President Beneš issued in the midst of emergency are still a part of the Slovak legal order. The temporary and final resolutions of the Slovak Constitution resolve the relation of the legal order of the Slovak Republic with the legal order of the former Czechoslovak Federative Republic. Naturally the approval of the Slovak Constitution on September 1,1992, in the conditions of the existing Czechoslovak Federative Republic, did not mean an immediate introduction of those legal ordinances which would have regulated legal relations in all fields and aspects. The legislative power  inclined to the adoption of the legal ordinances. Article 152 of the Slovak Constitution stipulates that constitutional laws (those laws that need a super-majority to pass), general laws and other generally binding regulation remain valid if they do not contradict the Constitution. The body competent to decide these cases is the Constitutional Court of the Slovak Republic. When the Czechoslovak Republic was established in 1918, law No. 11 from October 28, 1918 also applied the principle of legal ordinance adoption. Since the Constitutional Court of Slovakia has not yet ruled on a decision made under the Beneš decrees, these decrees remain part of our legislation.


The Most Disputed Decrees

According to many Slovak and Czech experts, the demands to abrogate the Beneš decrees are unjustified. They argue that most of these decrees have lost their meaning and have been amended by several laws (legal norms). Only about one-tenth of the decrees evoke political disputes: mainly those that regulated the post-war statute of the persons of German and Hungarian nationality in Slovakia. In evaluating the decrees, it is necessary to differentiate between those that are no longer valid (and therefore have no legal effect), and those that have retained their effect. It is disputable whether those which have retained their effect can create new legal relations, i.e. whether they have a constitutive character. However, nowadays there do occur some cases in which the courts rely on the Beneš decrees in their decision-making; these are mainly for restitution issues. These decrees are the following:


·        5/1945 Decree of the President of Invalidity of Some Regulations of Properties from the Period of the Occupation and on National Management of the Properties of Germans, Hungarians, traitors and collaborators, and certain organizations and institutions

·        12/1945 Decree of the President on Confiscation and Urgent Distribution of Agricultural Land of Germans, Hungarians, Traitors, and Enemies of the Czech and Slovak Nations

·        16/1945 Decree of the President on Punishment of Nazi Criminals, Traitors and their Helpers and on Special People’s Courts

·        27/1945 Decree of the president on the unified administration of the Internal settlement (abrogated by law No. 18/1950)

·        28/1945 Decree of the President on the Settlement on the Agricultural Lands of Germans, Hungarians and other Enemies of the State by Czech, Slovak and Other Slavic Farmers

·        33/1945 Constitutional Decree of the President on the amendment of the Czechoslovak citizenship of persons with German or Hungarian nationality.

·        71/ Decree of the President on Obligation to Work of those Persons who lost their Czechoslovak citizenship (abrogated by law No. 65/1965)

·        88/ 1945 Decree of the President on the General obligation to Work (abrogated by law No. 65/1965)

·        108/1945 Decree of the President on Confiscation of the Property of Enemies and on Funds of the National Reconstruction)


Decrees Concerning the Confiscation of the So-called Property of Enemies

There are included several decrees. The two basic decrees creating basis for the confiscations are the decree No 2/1945 from February 1, 1945 and mainly the decree No. 1945 from June 3, 1945 stipulating that: “any property transfers and any agreements on property ownership, if they concern movable or immovable, private or public properties, are invalid if they have been signed after September 29, 1938, under pressure of occupation or persecution based on nationality, race or ethnicity.” At the same time national management was imposed on the assets of the unreliable persons for the state (residents of German and Hungarian nationality), which in reality meant confiscation.


This decree was linked with series of other measures; first of all decree No. 108/1945 from October 25, 1945 on Confiscation of the Property of Enemies and on Funds of the National Reconstruction, paragraph 1 section 1, which stipulated the confiscated property as follows: “ There is confiscated, without any compensation…the movable and immovable properties and also property rights (claims, securities, deposits, intangible rights) which are owned by 1. The German Empire; the Hungarian Kingdom; persons of public law according to the Hungarian or German law; German and Hungarian political parties and other organizations, companies, associations, funds, as well as by other German and Hungarian legal entities, and 2. Private persons of German and Hungarian nationality, except for persons who have proved that they kept loyal to the Czechoslovak Republic, have never trespassed against the Czech or the Slovak nations, and have actively participated in the fights for the freedom of Czechoslovakia, or have suffered from the nazi or fascist terror, or 3. Private persons who have performed activities against independence, autonomy, integrity and the democratic- republican regime, security and defense of the Czechoslovak Republic….”


The confiscation of the properties of enemies had a legal basis in decree No. 108/1945 from October 1945, allowing rebuttal of the assumption of responsibility of the hostile persons operating ex lege. Apart from this, the confiscation was based on the international consensus declared in the documents of the Potsdam Conference and the 1946 Paris Agreement.


The discriminative character of decree No. 108/1945 is also reflected in other articles of it as well. According to Article 2 section 5: “ If the persons, the property of whom is subject to confiscation, are in joint ownership in associations with persons who are not subject to the regulation according to Article 1, and their share in the joint property is more than half of the property, the whole property is subject to confiscation.” However, to the joint owners who have not trespassed against the Czechoslovak Republic, from whom according to the Article 2 section 5 of the decree No. 108/1945 property has been confiscated, compensation is granted.


The Question of Collective Guilt from the Viewpoint of International Law

As for the claims for reparations concerning the confiscation of the property of the Sudeten- Germans and Hungarians, Czechoslovakia refers to the Potsdam Agreement regulating this issue. Article XIII of the Potsdam Agreement mentions deportation, but does not mention its consequences on property rights. Neither the reparation provided by the defeated powers according to Article IV, nor further resolutions of the Potsdam Conference mention this issue. According to Article XIII of the Potsdam Agreement, the conference came to an agreement on the removal of Germans from Poland, Czechoslovakia and Hungary: “Three governments have examined this question thoroughly and came to the conclusion that the German inhabitants or its parts remaining in Poland, Czechoslovakia and Hungary, will have to be moved to Germany. They all agree that any relocation has to be carried out in a humane and organized way.”


The confiscation of the property of the Sudeten-Germans and Hungarians was justified on the basis of collective guilt for a disloyal attitude to the Czechoslovak state. The idea of the ban on collective guilt cannot be restricted only to martial law. General human rights forbid such a collective accusation that omits any hearings and that bears serious consequences, without examining guilt on an individual basis. The measures are not justifiable in international law even from the viewpoint of legal reprisals. A legal reprisal occurs when one country intervenes in the legal means of another country that is violating international law; the purpose is to force the country in violation either to change the offensive actions or to make reparations. After the capitulation of  the defeated countries it was not assumed that these countries would violate this law.


The confiscations were contrary to international law, since they violated the prohibition on discrimination: the  purpose of the land reform act of June 21, 1945 was not a general reform of the ownership of the agricultural land, but its measures concerned only the citizens of German and Hungarian nationality, respectively those who had been declared by the state to be “ traitors and enemies”. German and Hungarian citizens were treated equally; however, both ethnic minorities were disadvantaged compared to other Czechoslovak citizens or foreigners for unjust reasons. The confiscation of property discriminated against the Sudeten-Germans and Hungarians on an ethnic basis. Since the confiscation measures were without compensation, it was a violation of the international law associated with confiscation and obligations concerning compensation: international law allows lesser obligations only in the case of nationalization. The confiscations carried out in the case of the citizens of German and Hungarian nationality could not be considered as legal nationalization. Governmental measures cannot discriminate against certain groups of foreigners in favor of local inhabitants or other foreigners. Since the confiscations were targeted mainly against the Hungarian and German ethnic groups (the domestic residents and foreigners were affected by it only if they committed some offenses) they were discriminative.


After the communist regime took over power in Czechoslovakia, and after the transformation of the society as a result of the communist regime, the property of ethnic Czechs and Slovaks was also nationalized without any exemption. When these measures were introduced, the property of the Sudeten-Germans and Hungarians had already been confiscated. Since those earlier confiscations had a punitive character, they were fundamentally different from traditional condemnation of property. The aim of condemnation is usually to acquire property, and thus condemnation does not violate human rights; however, if it is linked with punishment and deportation, human rights are violated. The confiscations were carried out on the basis of discrimination of a certain group.


On the basis of Article 6 b) of the resolution of the Nuremberg International Military Tribunal, the murder, torture or deportation to or from occupied territories for forced labor is considered a criminal offence. According to Article 6 c), the murder, massacre, enslavement, deportation or other inhumane treatment of civilians in, before or after the war is classified as a criminal offense against mankind. The Convention on Genocide of 1978 and the Geneva Convention on the Protection of Civilians during War of 1949 formally codified the ban on deportation. Though these were all enacted after the deportation of Germans and Hungarians had begun, it cannot be overlooked that customary international law had long banned such deportation as a crime against mankind. The basic principles stipulated in Nuremberg took general effect on December 11, 1946 on the basis of resolution No. 95 (1) of the General Assembly of the United Nations.


Confiscation of Land

In the first stage of land reform in 1946, it was decided that the land and agricultural estates of “ the traitors of the Slovak nation”, would be confiscated. These traitors were defined as the persons of Hungarian and German nationalities who by November 1, 1938 did not have a Czechoslovak citizenship or who owned more than 50 hectares of land. On the basis of the resolution from June 21, 1945, in the frame of the land reform the government ordered to confiscate the agricultural estate of persons of Hungarian and German nationality without  any recompensation and regardless of their citizenship. According to Section 2.1, those persons were considered as citizens of Hungarian or German nationality who in any census conducted since 1929 declared themselves as belonging to the German or Hungarian community, or to other groups of these nationalities, or who were members of a political party made up of persons of these nationalities. Simultaneously with this order, there was issued an order according to which all the municipalities, cooperative farms and persons of Slovak nationality could lay claim to the confiscated property. With this decree was associated the regulation of the Finance Ministry from June 22, 1945 on blockage of  the property of Hungarians and Germans put into investments and bank deposits.    


The confiscated land was transferred under the administration of the Slovak Land Fund, and more than 66% of the confiscated land was distributed in private ownership to persons not owning land and to small farmers. Mainly the confiscation of estates of Hungarians, Germans, traitors, Hungarian corporate entities and those Hungarians who were sentenced by the People’s Court were carried out consistently. The land was confiscated regardless of citizenship. In the first stage of the land reform, over 540,000 hectares of land was confiscated. Of this, 246,000 hectares were agricultural land. Through the renewal of civil rights, the lands of the small and medium-sized farmers of Hungarian nationality were exempt from confiscation after 1948. In the second stage of the land reform (the law passed on July 11, 1947) the upper limit of the estate was set at 150 ha of agricultural land and 250 ha of total land area.


In the third stage of land reform, the whole system of ownership relations changed after  the communist regime became to power. There were two groups of landowners who were affected: owners of farms over 50 hectares and any landowner who hired land out to tenants, regardless of the property’s size. None of this land was assigned to private farmers; rather, it was collectivized as state property. The change in ownership became a part of the collectivization (nationalization) processes.


Often as a consequence of the confiscation regulations, land reforms respectively distribution of estates arose the problem of the duplicate ownership, since due to the incorrect or incomplete records in the land register sometimes parcels of unidentified ownership were distributed. Further there arose the question how to resolve the restitution claim of those owners of estates confiscated and according to the land register records (ROEP). In consequence of the records the rights of the original owners to property  did not cease, but they were deprived of their right of disposal.


Decrees Regulating the Loss of Citizenship and Transfer of Inhabitants

Already the so-called Kosice Government Program from April 1945 included a plan for deportation of Germans and Hungarians deprived of their franchise and right for education in mother language.  The program divided Germans and Hungarians into guilty and loyal ones and stipulated the following: “Each Hungarian or German individual who has been accused and found guilty of trespasses against the Czechoslovak Republic, respectively against the Czech or Slovak nation, except for those who have been sentenced to death, will be deported from the territory of the Czechoslovak Republic.” However, the confiscation and nationalization did not apply only to the property of persons of Hungarian or German nationality and was not based on the collective guilt and if their property was to be confiscated their guilt had to be proven. Generally, the property that was confiscated was that of persons who willingly acted against the independence and security of the Czech and Slovak nations. The private persons of Hungarian and German nationality had a chance to prove that they had been loyal to the Czechoslovak Republic and were antifascists. If they succeeded in proving this, their property was not subject to confiscation.


However, the Beneš decrees from 1945 far exceeded the frame of the Košice Government Program. President Eduard Beneš, after an agreement with the Slovak National Council on August 2, 1945 issued decree No.33 on the regulation of Czechoslovak citizenship of those persons of German and Hungarian nationality. This constitutional decree deprived the Germans and Hungarians of their citizenship and civil rights. According to Article 1 of the latter decree: “Those Czechoslovak citizens of German of Hungarian nationality who, according to the regulations of the alien occupational power, were given a German or Hungarian citizenship, lost their Czechoslovak citizenship on the day they gained this other citizenship.” According to Article 2 of the quoted decree: “The other Czechoslovak citizens of German or Hungarian nationality will be deprived of their Czechoslovak citizen ship on the day this decree becomes effective.” The only exemptions to this rule were those Germans and Hungarians who declared themselves officially for Czechs or Slovaks during the time of increased endangerment to the Czechoslovak Republic. 

 Regulation No.33 of the decrees did not apply to those who remained loyal to the Czechoslovak Republic, and had never trespassed against the Czech or the Slovak nation, and who actively participated in the fights for its freedom or had suffered from Nazi or fascist terror. However, the decree included all those persons of Czech or Slovak nationality who endeavored to gain German of Hungarian citizenship during the time of occupation (from May 1938 until the end of the WWII).


The decree on the Regulation of Citizenship was approved one day after the representatives of the three victorious powers signed the Protocol of the Potsdam Conference, which approved the deportation of the German-nationality inhabitants from the Czechoslovak Republic. While the Potsdam Conference legalized the deportation of the Germans, the measures that affected the Hungarian minority were based mainly on the Beneš decrees.


The citizens of Hungarian nationality were treated differently during the exchange of inhabitants between Czechoslovakia and Hungary , i.e. of Slovaks living in Hungary for the Hungarians living in the territory of Czechoslovakia. There came the international and local acts regulating the exchange of the inhabitants: on February 27, 1946 an agreement was signed on the exchange of the inhabitants between the Czechoslovak Republic and Hungary. In June 1946, the cabinet issued a resolution on the “ reslovakization” (regaining of the Slovak nationality), after the exchange of the inhabitants turned out to be difficult. It was also planned that part of the inhabitants of Hungarian nationality would be deported to the Czech frontier area along the borderline with Germany.


The most outstanding injustice against the Hungarian nationality was the deportation called labor recruitment. On the basis of the confidential report of the Ministry of Social Affairs on the period between November 1946 and February 22, 1942, 44,129 persons of Hungarian nationality and 11,769 families were deported to forced labor in the Czech agricultural companies (farms). This deportation to forced labor was carried out officially on the basis of decree No. 88/1945 on the General Obligation to Work. The decree stipulates a period of obligation to work limited by age and marital status. In fact, under the supervision of the armed forces and the police, whole families were deported, including women, children, ill and old people. Thus these deportations in fact were carried out in contradiction with the above-mentioned decree. The prevailing majority of the deported persons after 1948 returned to Slovakia and they became Czechoslovak citizens. Those citizens who in the frame of the “exchange” of inhabitants got into Hungary could take with them their moveable property ands received real estate for what they left behind in Slovakia. In contrast, those who were deported to the Czech Republic lost all their properties and received negligible compensation.


Taking into consideration the abovementioned facts, it would be ethically and morally appropriate if a symbolic financial compensation was granted to each deported family. In other cases a moral satisfaction would be appropriate, which would be a declaration of regret over the harms and sufferings issuing from the collective guilt assumed of the Hungarian minority. The Czech Republic already issued such a declaration in the form of the common Czech-German declaration on mutual relation in 1997, and many countries welcomed this declaration as a positive step towards a mutual European understanding.


The Beneš Decrees and the Verdicts of the Constitutional Court

Since we have no information about whether the Constitutional Court has dealt with and decided on the motions filed on the compliance of the Beneš decrees with the Constitution of the Slovak Republic, we look to the verdicts of the Constitutional Court of the Czech Republic. We have to mention the fact that the decrees of the Constitutional Court of the Czech Republic have no legal effect in Slovakia, however they are not negligible from the viewpoint of the continuity between the legal order of the Czechoslovak Republic and the Slovak Republic, since the legal relations arising and ceasing on the basis of the Beneš decrees have been a part of the Czechoslovak legal order and on the basis of adoption of the legal order they form a part of the Slovak legal order. The file in question contains more than 80 resolutions concerning these issues and is a part of the appendix attached to this analysis.


The most frequently quoted verdict of the Constitutional Court of the Czech Republic on this issue is the finding from March 8, 1995 issued under number Pl. ÚS 14/94. The plaintiff in his motion stated that the Regional Court, in contradiction with valid constitutional law and also with constitutional law valid in 1945, declared decree No. 108/1945 Collection of Laws on Confiscation of Property of Enemies as a valid part of “our legal order.” At the same time, the plaintiff declared this decree to be a legal act on the basis of which property was confiscated. The co-plaintiff in his motion for abrogation of the Article 2 section 5 of the decree No.108/1945 Collection of Laws (on confiscation of joint ownership share, see above) stated that this law, by its character and aim, was antidemocratic and inhumane in principle. On the basis of Article 2 section 5, the aggrieved co-owner was deprived of the chance to defend him or herself. The principle of the decree in question, according to the co-plaintiff, is in direct contradiction with Article 17 sect. 2 of the General Declaration of Human Rights linked to Article 55 c) of the Charter of the United Nations, Article 1 subsection 1 of the Additional Protocol from March 20, 1952 to the Agreement on Protection of Human Rights and Basic Freedoms, as well as in contradiction with the Declaration of Children’s‘ Rights, since at the time of confiscation, the plaintiff was underage.


The Constitutional Court of the Czech Republic dismissed the motion. In justification, the court said: “Decree No. 108/1945 of President Beneš on Confiscation of the Properties of the Enemy and Fund of National Reconstruction, was in the time of its issuing not only a legal but a legitimate act. Taking into account that this normative act has already fulfilled its purpose and for more than 40 years has not given a legal basis for any legal action and therefore has no constitutive character, it is impossible today to examine its conflict with constitutional law or international agreement, according to the Article 10 of the Constitution (Article 87 section 1 letter a) of the Constitution of the Czech Republic, since this action would lack any legal function. The inverse action would question the principle of peace, which is one of the basic principles of the present democratic legal systems.“


In response to a further statement of the plaintiff, according to which the decree No. 108/1945, like other decrees issued by Dr. Eduard Beneš, contradicted the legal principles of civilized European societies and therefore could not be considered as a legal act. According to the statement, the decree must be considered acts of violence; in other words, they absolutely do not have the character of law. it is necessary , even in general sense, to underline the basic moment concerning any judgment of the past: „ what comes from the past must  preserve its values even facing present requirements. This evaluation of the past cannot be a judgment of the present over the past. In other words, the laws of the past cannot be judged on the basis of present laws, which have already been amended by the experiences learnt of the past and which judge many phenomena from a certain time distance. From this point of view and in the context of all relations and events during the nazi occupation and in the subsequent period, it is necessary to evaluate decree No. 108/1945 from October 25, 1945 on confiscation of properties of the enemy and Funds of National Reconstruction as a measure based on the historical situation and on regulations valid that time, responding to the previous liquidation of the independence, integrity and democratic-republican regime, liquidation of the principles of the democratic, legal state, included in the Constitutional Bill of the Czechoslovak Republic from 1920 by the nazi regime, and its terror based on ideology of world supremacy of the ruling race destroying millions of human lives.“


In this context, states the Constitutional Court of the Czech Republic, it is necessary to decide whether the objection to the conflict with “the legal principles of the civilized countries of Europe,” cannot be found in the fact that decree No. 108/1945 Collection of Laws was evidently based on the presumption of responsibility of persons of German and Hungarian nationality. In contrast, in the case of persons of other nationalities a burden of evidence to prove that the criteria for property confiscation were or were not met was on the courts. “Already in the beginning it is necessary to underline, that even in the case of persons of German nationality there is no presumption of “guilt,” but a presumption of “responsibility.” The category of „ responsibility“ refers apparently beyond the limits of „guilt“ and in this connection they have a much broader value, social, historical but also legal dimension. The fact that decree No. 108/1945, on Confiscation of Properties of Enemies and Funds of National Reconstruction, is based on the presumption of the responsibility of persons of German nationality, considering the facts, is not discriminative, represents no national revenge, but is a mere appropriate response to the aggression of Nazi Germany, a reaction which aimed to reduce the economic and political consequences of the occupation, prevent a possible new succession of a totalitarian regime and strengthen the social and moral consciousness by confirming that any violation of the responsibility involves a sanction. Therefore it is not a case of arbitrary deprivation of property, which is declared by the Article 17 of the Universal Declaration of Human Rights.“


There is a significant difference between the two lines of arguments, even though the above finding was that of the Constitutional Court of the Czech Republic and has no legal effect in the Slovak Republic. In this concrete case, similarly to the other cases of the jurisdiction, the Constitutional Court of the Czech Republic rejected the abrogation of the Beneš decrees. This fact, however, does not change that the above-mentioned decrees of president Beneš are in significant conflict with the principles of democracy and humanism; so far, however, they have not been challenged at the Constitutional Court of the Slovak Republic. Furthermore, it is hard to imagine that a declaration of the Beneš decrees’ incompatibility with the mentioned constitutional principles would occur if they were challenged through legal channels. When local, legal remedies fail, our legal order allows reliance on the verdicts of the European Court of Human Rights in Strasbourg as well as those of the European Commission for Human Rights. In practice, this means that if the criteria are fulfilled, an individual, a group of individuals, or an organization which considers itself a victim of the violation of rights acknowledged by international norms included in the legal system of Slovakia can apply to the latter institutions for legal remedy.

The Question of Abrogation of the Decrees

From a viewpoint of  to what  extent  is a  legal act cancelled we can differentiate derogation and abrogation. Derogation means cancellation of part of a normative legal act, while abrogation means cancellation of the whole act. The essence of the derogative element is based on the fact that the rulemaking power usually, without any exceptions, includes also the power to cancel legal acts or their parts and regulations. The Constitutional Court of the Slovak Republic can only rule whether an act or a portion of one is in conflict with the Constitution of the Slovak Republic (or other acts or treaties, considered supreme in relation). It is the task of the body that issued the regulation to amend it so that it is in compliance with the constitution (or other acts or treaties) within a period of six months. Apart from amendment, the relevant body can cancel the effectiveness of the act; if it doesn’t, the laws lose their validity. Naturally, even in the case of the Beneš Decrees, this power is given to the National Council of the Slovak Republic. Recently the voices calling for revision and derogation of the Beneš decrees have strengthened. They point out the discrepancy with the principles of humanity, the European way of legal thinking, legislation of the European Union, etc. The mentioned objections, however, do not take into account the jural side of the derogation, which is of key importance in this case.

The derogation of a law can be carried out in two ways: it is either considered cancelled from the very beginning of its effectiveness or else from the date when the law annulling it came into effect. A concrete solution in the case of the Beneš decrees is to have the cancellation of their validity and effectiveness defined by a law that sets the term of effectiveness (e.g.“ This decree came into effect on the day of its issuing and ceases to be effective on December 31, 2002).

By derogation of the decrees from the time they came into effect, however, there could arise a state of unclearness, with conflicts in personal relations and property rights. It is assumable that by the time passing by the legal effects of the Beneš decrees will have a historical significance only. At the present, however, these are legal norms, which in certain cases do have their legal consequences.

At some courts, there are currently trials concerning the return of property originating from the confiscations after 1945 (decree No. 108/1945). If decree No. 1908/1945 was canceled ex nunc, current ownership of confiscated would lose their legal rights to the property. Therefore the statement that the decrees are ineffective, obsolete en bloc is not feasible from this point of view. To cancel a valid law would be feasible, but only on the principle ex nunc.

It is worth considering setting up a special team under the aegis of the cabinet, which in cooperation with the Czech Republic would develop a survey on what has been abolished and what is still formally valid. This could serve as a base for the potential derogation ex nunc.



II.  European Legislation and International Documents


The compatibility of the Beneš Decrees with the Acquis Communautaire

As we look for an answer to the question of whether the existence of the Beneš decrees in the Slovak legal order complies with Slovakia’s membership in the European Union, it is worth making clear one basic fact: the principle of collective guilt that was used is contrary to any democratic perception of human rights. The theory of law, however, besides the legally approved and published, thus applicable, and the invalid, that is derogated laws, introduced the term of the so-called obsolete legal norms, which are not applied in legal practice. These are regulations, which have not been canceled in a way prescribed by the law, so they are formally valid, but the authorities do not apply them; therefore they have no practical effect.


Since at present Slovakia is not a member of the European Union, neither the founding agreements nor the so –called secondary regulation based on them are binding for Slovakia. The most important commitment of Slovakia towards the EU is the so-called association agreement, signed on October 4, 1993 and issued in the legal code under the number 158/1994. From a Slovak point of view it is a “traditional” international agreement, which, according to the Vienna agreement on contractual law and the customary international law, is binding even for Slovakia. It thus overrules Slovak laws in the sense that violation of the agreement because of some internal law does not exempt the violator from its obligation.[1]


The association agreement itself does not devote a large space to the human rights issue. Article 6 of the agreement, however, stipulates that the basic principles of the agreement are respect for democratic principles and human rights as they are embedded in the Helsinki Final Act and the Charter of Paris for a New Europe.


Another document worth mentioning is the final document of the Copenhagen EU summit, embedding the so-called Copenhagen Criteria of the EU which are compulsory for candidate countries. Of these criteria, the first is keeping in existence a democratic legal state, including respect for human rights and the rights of minorities.


Slovakia is legally bound by international law to comply with the criteria set up by the Organization for Security and Cooperation in Europe on the one hand and the criteria set up by the European Union itself on the other hand. The competent bodies of these organizations can find out whether these criteria are met. From this point of view, the statements of political representatives of certain non EU-member countries on whether the Beneš decrees are in compliance with the law of the European Union can be perceived only as diplomatic gestures without any legal relevance.2

The agreement of the European Union does not regulate expropriations or the effects of the invalidity of legal regulation on the continuity of ownership rights, nor does it settle the questions of restitution or privatization, and it leaves the field of legal relations fully in the control of the member countries. The law of the European Union “does not concern changes in ownership within the member countries”(Article 295 of the Agreement of the European Union). It is, according to the constant case law of the European Court, received as a basic part of their economic and social systems and national identity. The question whether the state reserves the ownership of certain objects or restricts respectively cancels the property rights of an individual is left in the discretion of the national bodies, when these measures do not concern the matter regulated by the European Union to an extent that it could endanger the objectives of the EU Agreement. However, the confiscation of the properties of the Sudeten-Germans and Hungarians was justified on the basis of collective guilt. It can be stated that the system of human rights protection in the European Union and the multilateral international agreements based on it are in sharp contradiction with the principle of collective guilt. The decrees of President Beneš are contrary to the law of the European Union also from the viewpoint of ban of discrimination.


Under the same conditions, in order not to endanger the aims of the Agreement, it is a matter of independent jurisdiction of an EU member country how the expropriation measures are carried out. For example, a national legal order, which apparently or in a hidden form, really or potentially, would prevent or hamper the citizens of the EU countries or a certain group to acquire real estates, would be a violation of the ban on discrimination on the basis of citizenship (Article 12), on ethnic or other bases (Article 14 I of the Agreement of the European Union). It is true mainly, if the acquisition of these real estates was an inevitable condition of a business activity for which the EU citizens had been registered in Slovakia as individual entrepreneurs. This measure would obstruct the right to freedom of business guaranteed by the Agreement of the European Union.


In the case of a potential conflict of law of a member country with that of the European Union, the law of the European Union has an application priority over the internal law, regardless of when it took effect. Regarding the principle of peace, which is one of the basic principles of the law of the European Union, the priority of the EU law will not concern the annihilation of legal relations which took place before a member country adopted  the  law of the European Union, in line with the national law, which at the moment of its assessment is already useless.


The rule lex posterior is valid in this case only in favor of communitarian law. The law of the country does not lose its effectiveness as a part of the legal order of the member country (it is not derogated), but it becomes inapplicable (at least for legal relations within the European Union). This principle applies only against those internal laws of the member country, which had been, until the issuance of the law valid in the European Union, valid, applicable, i.e. which had constitutive effects, and not against those, which, although had not been canceled by the member country, but had become invalid due to any other reason. Since some decrees of President Beneš have kept their effectiveness so far (see above), it is questionable whether they will be in harmony with the legislation of the European Union if Slovakia integrates into the European Union.


On the other hand it is important to point out that other EU-bodies also pay attention to the issue of the enlargement: most of all the European Parliament. Naturally, the European Parliament, as an organic part of the EU legislation, has effect on the enlargement process, since it is possible that an expert team set up by the European Parliament will recommend the abolishment of the Beneš decrees before accession to the European Union.


The legal aspects of this issue however, must be strictly distinguished from its political aspects. The possibility that the legislation of an EU country, or through a referendum its citizens, would not ratify Slovakia’s accession to the European Union because of the Beneš decrees is still not proof that they are contrary European Union law; this would be a clearly political decision.


The Beneš Decrees in the Context of International Documents on Protection of Human Rights- Conclusion

When issued, the decrees of President Beneš interfered with human rights as defined at that time. It is necessary to mention that the course and the consequences of World War II led to a fundamental change in approach to issues of human rights protection. The protection provided by the legislation of some turned out to be insufficient and unreliable. However, all the international documents on the protection of human rights, beginning with the Universal Declaration of Human Rights and followed by the International Covenant on Civil and Political Rights and agreements against discrimination, have been adopted only in the post-war period.


A negative feature of the Universal Declaration of Human Right adopted on December 10, 1948 by a resolution of the United Nations (the Czechoslovak Republic abstained from voting) was the absence of an international mechanism for the enforcement of rights and freedoms from the resisting country. The member countries were allowed to decide on the conditions under which they countries would fulfill their international commitments. It is however true that the greatest injustices committed against the Hungarian ethnic minority were completed by 1948. Since a ban on retroactivity has been included in the legislation of the particular countries since the 18th century, it was not possible to judge the effects of the presidential decrees on the basis of the Universal Declaration of Human Rights. Such judgment would be relevant from a legal point of view only after the adoption of this declaration into our legal order. Of course, the creation of new rights and obligations issuing from the Beneš decrees after the Declaration came into effect would have been in conflict with the Declaration.


The Federal Assembly of the Czechoslovak Federative Republic, on January 9, 1991, approved constitutional law No. 23/1991 Collection of Laws, declaring the Charter of Human Rights and Freedoms as a constitutional law of the Czechoslovak Federative Republic. After the establishment of independent Slovakia in 1993, the National Council of the Slovak Republic chose to create a direct amendment on human rights and freedoms in an individual chapter of the Constitution of the Slovak Republic. The constitutional amendment on human rights and freedoms is based on international agreements on the protection of human rights and freedoms that the Czechoslovak Federative Republic joined and ratified, and the obligations of which are taken over also by the Slovak Republic. The Constitution of the Slovak Republic, in Article I, section 2 stipulates: “The Slovak Republic acknowledges and keeps the general rules of international law, international agreements by which Slovakia is bound and its other international obligations.” From the viewpoint of constitutionality and the implementation of the constitutional amendment to basic human rights and freedoms it is extremely important that the principle based on that constitutional laws, laws and other legal regulations including their interpretation and application, must be in accordance with the constitution, its meaning and content.


As it was mentioned in the beginning it is necessary to distinguish decrees when evaluating them, since some of them are not valid anymore and have no legal effect, other decrees have maintained certain effects, although it is questionable whether they can create a basis for a new legal relation, i.e. whether they have a constitutive character. Taking into account this and the fact that these decrees are part of the legal order of the Slovak Republic, - since we cannot exclude without any doubt that the courts in Slovakia in their application practice make decisions (and will make decisions) on the basis of the Beneš decrees, - (i.e. there are new legal relations established on the basis of these decrees), we can state that these legal acts are contrary to the abovementioned international agreements and the Constitution of the Slovak Republic. The protection of basic human rights and freedoms by the Constitutional Court of the Slovak Republic, respectively by the relevant bodies of the European Council or the European Union, has a great significance from the viewpoint of guarantees for the implementation of rights and freedoms. Therefore it would be appropriate and desirable to adopt a derogative clause with a dated legal norm to limit their effects in the future.



[1] From EU viewpoint the association agreement belongs to the so-called mixed agreements, signed by the European Union as a corporate entity and all its member countries.