The "Benes decrees" - a historian's point of view

During the past few years, the two words "Benes decrees" have been ubiquitous in the Czech media. Most recently the term has been used in connection with the case of Franz Ulrich Kinsky, a member of an aristocratic family with long roots in Bohemia, who has filed a total of 157 lawsuits asking the Czech courts to confirm that he is the rightful owner of large amounts of property which were confiscated from him as a child after the war. The so-called "Benes decrees" that politicians, journalists, lawyers and property claimants frequently refer to, are in simple terms usually described as "post-war legislation that sanctioned the expulsion of ethnic Germans and Hungarians from Czechoslovakia and the confiscation of their property". But of course, matters are much more complex. Historian Jan Kuklik, who is assistant professor at the law faculty in Prague, specialises in the history of law. I spoke to him about the origins of the so-called "Benes decrees".

The "Benes decrees" - a historian's point of view

Signing of the so-called 'Benes decrees'

"The so-called "Benes decrees" are in fact laws which were issued during the Second World War and immediately after the war by at first by our exile government in London and then by the first post-war government in Czechoslovakia. So these acts were issued during the period of the Second World War when there was no Czechoslovak Parliament, when the country was occupied by Nazi Germany, when it was divided into the so-called "Protectorate" occupied by Germany and the independent puppet Slovak State. The Czechoslovak exile government represented the continuity of the Czechoslovak state during the war. It was almost the same government as other states established in wartime London, like the Polish exile government, Yugoslav or Belgian government. Also the so-called "Benes decrees" were in fact similar acts that were produced by these exile representations and also by first post-war governments all over Europe. So in my view, the so-called "Benes decrees" were in fact emergency legislation for the duration of the war and the period immediately after the end of the war."

The official title of the legislation is the Decrees of the President of the Republic. The popular term "Benes decrees" seems to suggest that Czechoslovak President Edvard Benes was the only person responsible for the acts, but as Dr Jan Kuklik says, this is not the case.

"Of course, President Benes was the head of the first exile government and then of the whole representation of the Czechoslovak Republic in exile, that's why these acts are named after this president. But of course, the preparation of the legislation was in the hands of the government. And also the ministers were responsible for the legislation so I think it is not correct to use the name "Benes decrees". But they were called "Benes decrees" by the opponents of President Benes and that's why I think it is now very common to use this name "Benes decrees" especially in Czech-German relations."

In recent years, the validity of the presidential decrees has often been questioned, particularly by the Czech Republic's neighbours. So what is the status of the decrees within Czech law, are they still part of it?

"A part of this legislation is still valid because these acts were never approved after the war by the first Czechoslovak parliament in 1946 and then became just constitutional and ordinary laws of Czechoslovakia. Of course, there are some decrees, now laws, still valid but, I think that the problem of the validity of the so-called "Benes decrees" is in fact connected with the Czechoslovak restitutional laws after 1989 which opened some questions of our history. The people who were deprived of property not only according to the "Benes decrees" but also during the communist time, then claimed their property back. And of course, they used the legislation which was valid during the time they lost their property. So for me this problem is really the connection between these so-called restitutional laws and post-war legislation. There is a second problem to it and it is that the so-called "Benes decrees" are a kind of symbol or the wartime and post-war development in the Czechoslovak-German relations. Because especially for the Germans who were expelled from Czechoslovakia, these so-called "Benes decrees" are symbols of the expulsion and then transfer from Czechoslovakia. But in fact, it is a combination of international decisions and our post-war legislation, so again, it is not very accurate to say that it is only a case of the so-called "Benes decrees"."

Some groups in neighbouring Austria and Germany wanted to see the decrees abolished as a precondition for the Czech Republic's accession to the European Union. Last November, the Foreign Affairs Committee of the European Parliament approved a resolution, stating that the so-called "Benes decrees" did not present an obstacle to the Czech Republic's accession to the EU. The verdict was based on the outcome of a legal expertise commissioned by the European Parliament which concluded that the decrees are not in violation of EU law. So how does international law in general look on the decrees? Historian Jan Kuklik.

"According to international law, the "Benes decrees" are, of course, a part of Czech, or Czechoslovak legislation, because in 1991, a special constitutional bill was adopted which said that also those parts of the "Benes decrees" are not in force that are in contrary to human rights principles. So I think that this so-called "problem of the Benes decrees" according to international law is solved because there is really no contradiction between Czech legislation and international law, especially from the point of view of human rights in the Czech Republic. And I think the process of accession of the Czech Republic to the EU proved that our position towards this problem is right and that of course, from our point of view the "Benes decrees" are not an obstacle for the Czech Republic to become a part of the EU."

The economic and human rights situation of the deported and their families in Austria and Germany was very likely incomparable to the life they would have led had they stayed in communist Czechoslovakia. Still, for the survivors and their descendants, the post-war transfer apparently remains a very emotional issue.

"I think I can understand the feelings of the people who after hundreds of years of their settlement in the Czech Lands were expelled or transferred to Germany or Austria after the end of the war. Personally, I can really understand their feelings. From the point of view of individuals it was very difficult to accommodate with this new situation but, of course, it was a situation which was not created by Czechoslovakia itself. It was really a situation which was an outcome of the Munich decision, the Protectorate, six years of German occupation and the Second World War and the situation after the end of the Second World War. And I think it is really necessary to understand it also from this Czech point of view. That it was a kind of very tragic end of the coexistence of the two nations in the Czech Lands. But of course, it is a problem which, in my view, is very difficult to solve now, after fifty years or so."

The European Parliament has stated the "Benes decrees" are not in breech of EU law, but does Jan Kuklik think the debate will continue even after the Czech Republic joins the European Union in May next year?

"Well, I think that of course, there will still be discussions among historians, politicians and also among the public. I think there will also be some legal disputes. But I think that the importance of these discussions and claims will decrease - and I hope it will decrease in the future. But I think it remains to be seen."