SECOND SECTION
DECISION
Application no. 32834/18
Loloah AZIZ THAMER AL-EBRAH
against Denmark
The European Court of Human Rights (Second Section), sitting on 22 June 2021 as a Committee composed of:
Carlo Ranzoni, President,
Valeriu Griţco,
Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 6 July 2018,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mrs Loloah Aziz Thamer Al-Ebrah, is an Iraqi national who was born in 1976 and lives in Copenhagen. She was represented before the Court by Mr Bjørn Dilou Jacobsen, a lawyer practising in Copenhagen.
2. The Danish Government (“the Government”) were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Ms Nina Holst‑Christensen, from the Ministry of Justice.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is an Iraqi national who entered Denmark in 2000. She was granted a residence permit in Denmark in October 2005. She is married and has five children.
5. In 2014 she applied for Danish nationality under the Act on Danish nationality and Circular 10873 of 13 October 2015. She enclosed two medical certificates stating that she suffered from chronic schizophrenia, for which reason it would be impossible, permanently, for her to learn Danish to the level required for being granted citizenship and to take the special citizenship test. On 16 February 2016 her request was refused by the Ministry (Indfødsretskontoret, Udlændinge, Integrations - og Boligministreriet) since she did not fulfil the requirements regarding skills in the Danish language and a certificate in the special citizenship test set out in section 24, subsections 1 and 3 of Circular 10873 of 13 October 2015, and since the Naturalisation Committee of the Danish Parliament had found that she could not, by virtue of section 4 of the Circular, be dispensed from these requirements.
6. Section 4 set out that, where exceptional circumstances made it appropriate, the question of whether exemption from the conditions of subsections (1) and (3) may be granted will be submitted to the Naturalisation Committee of the Danish Parliament. The question will be submitted if the applicant certifies that he or she suffers from a physical or mental illness of a very serious nature and consequently finds him or herself to be incapable – or to have no reasonable prospects – of satisfying the conditions.
7. The applicant brought the decision before the courts submitting that, being disabled, she had been discriminated against, inter alia, in breach of Article 14, in conjunction with Article 8 of the Convention, and that she should be granted compensation for non-pecuniary damage.
8. By a judgment of 25 September 2017 the District Court (Københavns Byret) found that the applicant had been discriminated against in breach of Article 14, in conjunction with Article 8, but refused her claim for compensation, stating that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. As to the former, the District Court stated:
“An applicant who has not been listed in a naturalisation bill can obtain a judicial review of whether any obligations under international law have been violated and, if so, whether the applicant is entitled to damages or compensation.
When applying for Danish nationality, [the applicant] appended a medical certificate completed by K.H., General Practitioner, and she subsequently submitted a psychiatrist’s certificate issued by S.K., a Psychiatric Specialist, for the purpose of the processing of the application for Danish nationality by the Danish Ministry of Justice. It appears from both medical certificates that [the applicant] suffers from schizophrenia, that she is capable of passing neither the Danish 2 Exam nor the naturalisation test or the nationality test, not even with the use of assistive devices, and that [the applicant] suffers from a long-term chronic impairment. On this basis, and in conjunction with the fact that, during the trial, the Ministry of Immigration and Integration has not contested that [the applicant] suffers from a serious impairment and, in consequence, meets the requirements for being granted an exemption, the Court finds that [the applicant] has substantiated that, at the time of the decision, she suffered from a long-term impairment and, accordingly, she was incapable of or had no reasonable prospect of meeting the requirements of passing the Danish 3 Exam or the naturalisation test, see section 6(1) of the Danish Nationality Act, read with section 24(1), read with section 24(4), read with section 24(6), read with section 24(7), of Circular Letter No. 10873 of 13 October 2015 on Naturalisation.
Differential treatment because of a disability, including mental disorders such as schizophrenia, is contrary to Denmark’s international obligations and requires that persons suffering from a disability are entitled to nationality on an equal basis with others, see Article 14, read with Article 8, of the European Convention on Human Rights, Article 1, read with Articles 2, 4 and 5, and Article 18 of the UN Convention on the Rights of Persons with Disabilities, and Article 26 of the International Covenant on Civil and Political Rights.
Accordingly, when the Nationality Division (Indfødsretskontoret) refused her application for Danish nationality of 16 February 2016, [the applicant] was subjected to differential treatment due to her disability, which is a violation of Denmark’s international obligations, see Article 14, read with Article 8, of the European Convention on Human Rights, Article 1, read with Articles 2, 4 and 5, and Article 18 of the UN Convention on the Rights of Persons with Disabilities, and Article 26 of the International Covenant on Civil and Political Rights.”
9. On 3 November 2017 the applicant re-applied for Danish nationality and enclosed an updated medical certificate of 24 October 2017 stating that it was highly likely that she suffered from schizophrenia. The psychiatrist could not make any eye contact with her, and only her husband spoke. The latter explained that the applicant needed constant supervision at home. The certificate concluded that the applicant was far too ill to participate in a Danish course or to attempt to take the special citizenship test.
10. Her request was refused on 6 April 2018 by the Ministry (Indfødsretskontoret, Udlændinge- og Integrations Ministeriet) since she did not fulfil the requirements regarding documentation for skills in the Danish language and the certificate in the special citizenship test, set out in section 24, subsections 1 and 3 in Circular 10873 of 13 October 2015. It was added that the judgment of 25 September 2017 was enclosed with her application, when the Parliamentary Naturalisation Committee assessed whether the applicant could be exempted from the said conditions. However, at a meeting on 15 March 2018 the Parliamentary Naturalisation Committee found that the applicant should not be listed for the coming naturalisation bill.
11. The applicant did not bring this decision before the court.
12. On 6 July 2018 the applicant lodged her application with the Court.
13. On 20 December 2019, having re-opened the applicant’s case, the Parliamentary Naturalisation Committee granted the applicant dispensation from the usual requirements for listing in a naturalisation bill. Before it, the Committee had access to the same documents as in the applicant’s previous applications, but also a new medical report of 8 October 2019.
14. On 3 July 2020, the applicant was granted Danish nationality by virtue of Act No. 180 of 23 June 2020.Relevant domestic law and practice
15. The following appears from Part 7 of Circular Letter No. 10873 of 13 October 2015 on Naturalisation, which was applicable at the time of the consideration of the applicant’s application on 16 February 2016 and 6 April 2018:
Part 7, section 24
Danish language skills and knowledge of Danish society, culture and history
“(1) It is a condition for being listed in a naturalisation bill that the applicant provides evidence of his or her Danish language skills by a certificate of having passed the Danish 3 Exam (Prøve i Dansk 3) of the Danish language training programme or one of the tests listed in Appendix 3.a, but see subsection (2).
(2) For applicants who comply with the requirement of self-support under section 23(1) and who have not, at the introduction of a naturalisation bill, received any public benefits as referred to in section 23(1) for an aggregate period exceeding six months during the past nine years, it is a condition for listing in a naturalisation bill that the applicant provides evidence of his or her Danish language skills by a certificate of having passed the Danish 2 Exam (Prøve i Dansk 2) of the Danish language training programme or one of the tests listed in Appendix 3.b.
(3) It is further a condition for listing in a naturalisation bill that the applicant provides evidence of his or her knowledge of Danish society, culture and history by a certificate of having passed the 2015 Naturalisation Test (Indfødsretsprøven af 2015), but see Appendix 4.
(4) Where exceptional circumstances make it appropriate, a proposal to grant an exemption from the requirement of providing evidence of having passed the Danish 3 Exam, see subsection (1), and the 2015 Naturalisation Test can be submitted to the Parliamentary Naturalisation Committee (Folketingets Indfødsretsudvalg). A proposal will be submitted if the applicant is medically diagnosed with a long-term physical, mental, sensory or intellectual impairment and is consequently incapable of – or has no reasonable prospect of – meeting the requirement of providing evidence of having passed the Danish 3 Exam and the 2015 Naturalisation Test, even if the test is taken on special conditions and with the use of assistive devices. It is moreover a condition for the submission of a proposal that the applicant makes a solemn declaration that he or she has attended Danish language programmes 1, 2 or 3 and has attempted to take the Danish 3 Exam and the 2015 Naturalisation Test. However, if the applicant has not attended Danish language programmes 1, 2 or 3 and has not attempted to take the Danish 3 Exam and the 2015 Naturalisation Test, not even on special conditions and with the use of assistive devices, the proposal will be submitted to the Parliamentary Naturalisation Committee if the applicant can provide evidence that both the failure to attend the Danish language programmes and the failure to attempt to take the Danish 3 Exam and the 2015 Naturalisation Test are attributable to a long-term physical, mental, sensory or intellectual impairment.
(5) For applicants who comply with the requirement of self-support under section 23(1) and who have not, at the introduction of a naturalisation bill, received any public benefits as referred to in section 23(1) for an aggregate period exceeding six months in the past nine years, a proposal to grant an exemption from the requirement of providing evidence of having passed the Danish 2 Exam, see subsection (2), and the 2015 Naturalisation Test can be submitted to the Parliamentary Naturalisation Committee where exceptional circumstances make it appropriate. A proposal will be submitted if the applicant is medically diagnosed with a long-term physical, mental, sensory or intellectual impairment and is consequently incapable of – or has no reasonable prospect of – meeting the requirement of providing evidence of having passed the Danish 2 Exam and the 2015 Naturalisation Test, not even if the test is taken in special conditions and with the use of assistive devices. It is moreover a condition for the submission of a proposal that the applicant makes a solemn declaration that he or she has attended Danish language programmes 1, 2 or 3 and has attempted to take the Danish 2 Exam and the 2015 Naturalisation Test. If the applicant has not attended Danish language programmes 1, 2 or 3 and has not attempted to take the Danish 2 Exam and the 2015 Naturalisation Test, not even in special conditions and with the use of assistive devices, the proposal will be submitted to the Parliamentary Naturalisation Committee if the applicant can provide evidence that both the failure to attend the Danish language programmes and the failure to take the Danish 2 Exam and the 2015 Naturalisation Test are attributable to a long-term physical, mental, sensory or intellectual impairment.
(6) The circumstances referred to in the second and fourth sentences of subsection (4) and the second and fourth sentences of subsection (5) must be substantiated by a certificate from a medical professional, but see subsection (7). The certificate must state, inter alia, whether the treatment options have been exhausted, whether the relevant applicant is incapable of passing a test as referred to in subsections (1) or (2) and (3), and whether the relevant applicant will become capable of learning the Danish language at the required level in future.
(7) Where the applicant suffers from a long-term mental impairment, the circumstances referred to in the second and fourth sentences of subsection (4) and the second and fourth sentences of subsection (5) must be substantiated by a certificate from a psychiatric specialist or another healthcare professional based on a prior psychiatric assessment of the applicant.
(8) The submission of a proposal to the Parliamentary Naturalisation Committee for the Committee to consider whether to grant an exemption from the requirement of providing evidence of Danish language skills and of having passed the 2015 Naturalisation Test cannot be taken to mean that an exemption will be granted to the applicant.”
16. By virtue of Article 63, section 1, of the Constitution, review by the courts of the administration’s general and specific decisions is a common legal remedy. The courts cannot review the exercise of administrative discretion (see, for example, Weekly Law Report (Ugeskrift for Retsvæsen) for 1973, p. 897 (U.1973.897H)), but they can conduct a judicial review of the competence of the authority, the observance of formal rules and the legal basis of an administrative decision, including whether it is in accordance with Denmark’s obligations under the Convention.
17. On 13 September 2013, the Danish Supreme Court (Højesteret) passed a judgment (U.2013.3328H) concerning the right to judicial review under Article 63 of the Constitution relating to the process of granting nationality. The Supreme Court stated, among other things:
“The Supreme Court agrees with the view that the Minister’s decisions to refrain from listing an applicant in a naturalisation bill or to refrain from submitting an application to the Parliamentary Naturalisation Committee are elements of the legislative process. Article 63 of the Constitution, according to which the courts are empowered to decide any questions relating to the scope of the executive authority, does not apply to such decisions as no authority is exercised by the executive, see in this respect the Supreme Court’s judgment, reproduced on page 903 of the Danish Weekly Law report (UfR) 1972.
Denmark has acceded to the European Convention on Human Rights and several other international conventions that may be significant to the processing of applications for or to the grant of nationality. Accordingly, Denmark has assumed a number of obligations under international law, compliance with which is assumed, also in the preparatory works of the Danish Nationality Act (Indfødsretsloven), when Parliament and the Parliamentary Naturalisation Committee exercise their discretion as to whether Danish nationality should be granted to an applicant, see in this respect Bill L 69, Official Report on Parliamentary Proceedings (Folketingstidende) 1998-99, supplement A, column 1794. An applicant who has not been included in a naturalisation Act can therefore request the courts to review whether obligations under international law have been breached, and whether the applicant has a claim for damages or compensation in that connection. Such judicial review will not be contrary to the authority of the Government or Parliament under Articles 21 and 41(1) of the Danish Constitution, regarding the introduction of bills, or under Article 44(1) on naturalisation by law. By contrast, these provisions precluded any judicial review of claims to the effect that the applicant must be listed in a naturalisation bill or must be granted nationality by an Act. ...
In the case in question, the Supreme Court ruled in favour of the appellant and remitted the case to the High Court for retrial on the merits (whether the appellant, on the ground of his diagnosis (PTSD), had suffered discrimination in violation of Article 14 of the Convention in conjunction with Article 8).”
18. In a recent judgment of 7 February 2020 (U.2020.1753) a Turkish national living in Denmark, who had been granted early retirement benefits on account of disability, was refused Danish citizenship because he did not fulfil the requirement of being self-supporting. The High Court of Western Denmark (Vestre Landsret) found that the refusal was in breach of, inter alia, Article 14 read, in conjunction with Article 8 of the Convention, and awarded compensation in the amount of 10,000 Danish Kroner (DKK).
COMPLAINT
19. The applicant complained that the Danish authorities’ refusal of 6 April 2018 to grant her Danish citizenship was in breach of Article 14, read in conjunction with Article 8 of the Convention.
THE LAW
20. The applicant relied on Article 14, read in conjunction with Article 8, which provides as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
21. The Government submitted that the application should be declared inadmissible.
22. They pointed out that the applicant had been granted Danish citizenship on 3 July 2020. In their view, therefore, she could no longer claim to be a victim within the meaning of Article 34 of the Convention. She had not submitted any information demonstrating that not obtaining Danish nationality at an earlier point had had consequences warranting further redress. In this regard it was stressed that, for years, the applicant had had permanent residence in Denmark and received early retirement benefit.
23. Moreover, the Government submitted that the applicant had failed to challenge the refusal of 6 April 2018 before the courts. Accordingly, the application should be dismissed for non-exhaustion of national remedies within the meaning of Article 35 § 1 of the Convention.
24. The applicant maintained that the application should be declared admissible.
25. She could still claim to be a victim since, although she had now been granted Danish citizenship, the Danish authorities had neither acknowledged a violation of the Convention, nor afforded her redress for such a breach. In addition, there had been a substantial delay in processing the applicant’s re-application for Danish citizenship of 3 November 2017. It had not been granted until 3 July 2020.
26. The applicant also insisted that she had exhausted domestic remedies. She had brought the refusal of 16 February 2016 before the District Court, which had found for her by judgment of 25 September 2017. Nevertheless, her subsequent request for Danish citizenship was also refused, namely on 6 April 2018. In this respect, and since only Parliament has the competence to grant a person Danish Citizenship, and the Parliamentary Naturalisation Committee was not bound by a judgment finding a refusal to grant citizenship in violation of the Convention, the possibility of bringing a new claim before the courts would not constitute an effective remedy. The applicant also pointed out that it was only after she lodged a complaint with the Court that her case had been re-opened and she was granted Danish Citizenship.
27. The Court finds it unnecessary to determine whether the applicant can still claim to be a victim, since in any event it finds that she has failed to exhaust domestic remedies for the following reasons.
28. The purpose of the obligation to exhaust domestic remedies is to afford the Contracting State the opportunity of preventing or putting right the violation alleged against them before those allegations are submitted to the Court. It refers to the principles set out, inter alia, in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).
29. The Court has already had the opportunity to assess whether, in the Danish context, bringing a refusal to be granted Danish citizenship before the courts constitutes an effective remedy. The question was answered in the affirmative in the case of Nazari v. Denmark ((dec.), no. 64372/11, §§ 33‑36, 6 September 2016) in which the Court stated as follows:
“33. On 13 September 2013 the Danish Supreme Court issued a judgment, in another case, concluding that an applicant who has not been included in a naturalisation Act can request the domestic courts to review whether obligations under international law have been breached, and whether the applicant has a claim for damages or compensation in that connection.
34. That finding is in line with long-standing case-law by the Supreme Court on the right to judicial review under Article 63 of the Constitution of the legality of an administrative decision, including a review of whether such a decision is in accordance with Denmark’s obligations under the Convention (see paragraphs 23-25 above). Accordingly, although the said Supreme Court judgment was the first judgment on judicial review under Article 63 of the Constitution in relation to the process of granting nationality, the Court is satisfied, in the particular circumstances of the present case, that a court review under Article 63 of the Constitution is a remedy which is sufficiently certain not only in theory but in practice. Moreover, this remedy was available to the applicant for the purposes of Article 35 § 1 at the time when the application was lodged with the Court. The Court notes in this context that had the applicant brought his complaint before the domestic courts, the courts would have had jurisdiction to assess the merits of his complaint, that is whether the refusal to put him on the list for naturalization without providing any reasons amounted to a breach of obligations under international law, including the invoked provisions of the Convention, and they could have provided the applicant with redress in the form of damages or compensation. Furthermore, the Court notes that such a ruling in favour of the applicant would be binding on the authorities, including the Ministry, if a renewed request for naturalization were to be submitted by the applicant.
35. In light of the foregoing, the Court considers that the said remedy existed with sufficient certainty, as stated above, and was effective within the meaning of Article 35 § 1 of the Convention (see Vučković and Others, cited above, § 74).
36. It follows that the Government’s objection must be accepted and that this part of the application be declared inadmissible for non‑exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.”
30. Be that as it may, the Court considers that a court ruling in favour of an applicant would be binding on the authorities, including the Ministry, if a renewed request for naturalisation were to be submitted.
31. In the present case, however, it is impossible for the Court to know whether the Ministry, when refusing to grant the applicant a residence permit on 6 April 2018, found that there were new circumstances in the case or found, based on the material already submitted, that Danish citizenship could still not be granted. As the Court has consistently emphasised in its case-law, the national authorities are better placed than the international judge to evaluate the available material and evidence in a particular case. By virtue of the subsidiarity principle, the Court must be cautious in taking on the role of a first‑instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, among others, S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 154, 22 October 2018).
32. It is undisputed that the applicant could not bring the new refusal of 6 April 2018 before the Danish courts with a claim that Parliament should grant her Danish nationality. This is due to the fact that, according to Article 44 of the Danish Constitution, only Parliament has the competence to grant a person Danish nationality by law (naturalisation).
33. The Court is fully convinced, however, as was confirmed by the District Court judgment of 25 September 2017 in the present case and the recent High Court judgment of 7 February 2020 in another case (see paragraph 18 above), that the Danish courts could both have acknowledged a violation of the Convention and, if appropriate, awarded compensation for pecuniary and non-pecuniary damage. Accordingly, this remedy must be considered effective within the meaning of Article 35 § 1 of the Convention (see Vučković and Others, cited above, § 74).
34. Having regard to the above, the Court concludes that the application must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 July 2021.
{signature_p_2}
Hasan BakırcıCarlo Ranzoni
Deputy RegistrarPresident
Full & Egal Universal Law Academy