AS TO THE ADMISSIBILITY OF
Application No. 12097/86
by Veronika Magdalena KÜNZI-BRENZIKOFER
and Others
against Denmark
The European Commission of Human Rights sitting in private on
13 July 1987, the following members being present:
MM. J. A. FROWEIN, Acting President
C. A. NØRGAARD
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms ;
Having regard to the application introduced on 15 April 1986
by Veronika Magdalena Künzi-Brenzikofer and Others against Denmark and
registered on 15 April 1986 under file N° 12097/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission ;
Having regard to the observations submitted by the respondent
Government on 19 September 1986 and the observations in reply
submitted by the applicants on 4 March 1987;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
All 17 applicants are members of the Church of Scientology.
At the time of the introduction of the application they were all
living in Copenhagen, Denmark. Before the Commission they are
represented by Mr. Nourad Oussedik and Mrs. Brigitte Bouvier, lawyers
practising in Paris, France.
The application concerns the applicants' expulsion from
Denmark.
Applicable domestic law and practice
Section 63, sub-section 1 of the Danish Constitution (Danmarks
Riges Grundlov) reads as follows:
"The courts of law may determine any question relating to
the limitation of powers of the Administration. However, no
person desiring to raise such a question shall, by bringing
the matter before the courts, be excused from temporarily
complying with the decision taken by the Administration."
Section 9, sub-section 2 of the Aliens Act (Udlændingeloven) reads:
"Upon application, a residence permit may be issued to other
aliens, provided -
i. the alien, in cases not falling within sub-section
1, is closely connected through relatives or in a similar
manner with a person permanently resident in Denmark;
ii. the alien, in cases not falling within section 7,
sub-section 1, is in a situation where significant
considerations of a humanitarian nature weigh heavily
in favour of granting the application;
iii. significant employment or business considerations
make it appropriate;
iv. exceptional reasons otherwise make it appropriate."
Under section 12 of the Aliens Act the Minister of Justice
shall lay down more detailed rules on residence permits, including
more particularly on the criteria for issue of residence permits, on
the duration of their validity, and on the conditions that may be
stipulated for the stay.
Such rules are laid down in Ministry of Justice Executive
Order No. 19 of 18 January 1984. Pursuant to section 22 of the Order,
residence permits according to section 9, sub-section 2 are issued for
permanent or temporary stays in Denmark. When deciding whether to
issue residence permits for permanent or temporary stay consideration
shall be given, in particular, to the purpose of the stay and the
wishes of the applicant.
To persons affiliated to the Church of Scientology, residence
permits are issued according to the following guidelines:
To persons affiliated to the Church of Scientology residence
permits are issued for two-year periods pursuant to section 9,
sub-section 2 (iv) of the Aliens Act, provided they are doing regular
missionary work in Denmark. Regular missionary work shall be taken to
mean activities in respect of ordinary religious ceremonies or the
teaching of the religion to others. Residence permits are not issued
for the purpose of studying Scientology. After a two-year stay it
will in exceptional cases be possible, based on a case-by-case
consultation, to extend the permit, after consultation with the
Ministry of Ecclesiastical Affairs where appropriate.
Consultants, functionaries and others employed by the
Scientology organisation, who are not doing regular missionary work,
are treated as any other alien. Nationals of another EEC country
working for Scientology without doing regular missionary work are
given an EEC residence certificate provided all relevant conditions
are fulfilled. To non-EEC nationals residence and work permits are
issued only when all general conditions are fulfilled.
No new residence permit according to the rule applicable to
missionaries is granted to persons previously working with Scientology
in Denmark even if the applicants have been resident outside Denmark
for a long period. Residence and work permits, as well as EEC
residence certificates, are only issued subject to fulfilment of the
general conditions.
Until 1981 members of the Church of Scientology were granted
temporary extensions of their residence permits beyond the usual
two-year period on a larger scale than today. The standard procedure
was changed in 1981, as a result of which aliens affiliated to the
Church of Scientology will be given residence permits according to the
rules applicable to persons affiliated to officially recognised
religious communities. This change of procedure was communicated to
members of the church and their spouses when they last had their
residence permit extended.
The personal situation of the applicants
1 and 2) Veronika Künzi-Brenzikofer and Franz Peter Künzi are
both Swiss citizens, born in 1954 and 1955 respectively. They came to
Denmark in 1975 and were granted a one-year residence permit, renewed
by the Ministry of Justice each year. They have two children, both
born in Denmark in 1981 and 1982. The whole family speaks Danish and
the children attended a kindergarten in Denmark.
Mrs. Künzi-Brenzikofer's, application for a renewal of her
residence permit was rejected by the Aliens Supervisory Board
(Tilsynet med Udlændinge) on 10 August 1982. Her husband's
application for a renewal was first rejected in 1982. A new
application was rejected on 25 March 1983. Both applicants appealed
against the decisions to the Ministry of Justice.
3) Erwin Blum is a Swiss citizen born in 1950. He came to
Denmark in 1977 and received a one-year residence permit which was
renewed every year until 1982. His application for a renewal was
rejected on 7 December 1982. The decision was appealed against to
the Ministry of Justice.
4 and 5) Matthias Tinner is a Swiss citizen, born in 1950. He
came to Denmark in 1977. His wife, Renate Maria Tinner, is an
Austrian citizen, born in 1958. She came to Denmark in 1981. Both
received a one-year residence permit upon arrival and it was renewed
each year. Their applications for a renewal were rejected on 2 August
1983. They appealed against the decisions to the Ministry of Justice.
6) Heinz Martzak Görike is an Austrian citizen, born in
1944. He came to Denmark in 1977. His application for a renewal of
his residence permit was first rejected in 1982. A new application
was rejected on 18 April 1984. This decision was also appealed
against to the Ministry of Justice.
7) Rainer Johannes Gritsch is an Austrian citizen, born in
1957. He came to Denmark in 1977 and received a one-year residence
permit which was subsequently renewed at yearly intervals until 1983
when his renewal application was rejected on 7 February. The
applicant appealed against the decision to the Ministry of Justice.
8) Thomas Bucher is a Swiss citizen, born in 1958.
He came to Denmark in 1978. His application for a renewal of his
residence permit was rejected on 30 December 1982. He also appealed
to the Ministry of Justice.
9) Mohammed Laimeche is an Algerian citizen, born in 1955. He
came to Denmark in 1982 and was granted a two-year residence permit.
An extension of this permit was refused on 20 February 1984. He
appealed to the Ministry of Justice.
10) Beat Schumacher is a Swiss citizen, born in 1957. He came
to Denmark in 1978 and received a one-year residence permit which was
subsequently renewed each year. His brother and wife also live in
Denmark. The applicant's application for a renewal of the residence
permit as well as that of his wife (who is not an applicant in this
case) were rejected on 20 June 1984. Both appealed to the Ministry of
Justice.
11) Anna Maria Breuer is a Swiss citizen, born in 1956. She
came to Denmark in 1977 and received a one-year residence permit which
was subsequently renewed each year. She is divorced. On 11 May 1983
the applicant's application for a renewal of the residence permit was
rejected. She appealed against the decision to the Ministry of
Justice.
12 and 13) Anton Kinzl is a Swiss citizen, born in 1950. He
came to Denmark in 1975 and received a one-year residence permit,
which has subsequently been renewed each year. His wife, Béatrice
Renée Kinzl, is also a Swiss citizen, born in 1952. She came to
Denmark in 1977 and received, on arrival, a one-year residence permit
which has also been renewed each year. They have two children, both
born in Denmark in 1980 and 1981. On 22 June 1983 the applicants'
applications for a renewal of their permits were rejected. The
decisions were appealed against to the Ministry of Justice.
14) Joseph Augustin Burch is a Swiss citizen, born in 1947.
He came to Denmark in 1981 and received a one-year residence permit.
His request for an extension was rejected on 4 March 1983. He
appealed to the Ministry of Justice.
15) Paul Ellensohn is an Austrian citizen, born in 1961. He
came to Denmark in 1981 and received a one-year residence permit.
His request for renewal was rejected on 6 May 1983. He also appealed
to the Ministry of Justice.
16) Yves Küpfer is a Swiss citizen, born in 1956. He came to
Denmark in 1983 and received a two-year residence permit which has not
been subsequently renewed.
17) Maria Madeleine Thut is a Swiss citizen, born in 1925.
She came to Denmark in 1976 as a student and received a student
residence permit. In 1982 she applied for an ordinary residence
permit but this was rejected on 14 October 1982. She appealed against
the decision to the Ministry of Justice.
As set out above it appears that all applicants, except for
Yves Küpfer (No. 16), appealed against the decisions of the Aliens
Supervisory Board, subsequently called the Directorate for Aliens
(Direktoratet for Udlændinge), to the Ministry of Justice.
Furthermore, after the change of procedure introduced in 1981 the
applicants contested its lawfulness, submitting the question to
various authorities. For this reason, and after consultations with,
inter alia, the Church of Scientology, the Ministry of Ecclesiastical
Affairs and the Ministry of Education, the decisions on the
applicants' appeals were not given by the Ministry of Justice until 28
June 1985. All appeals were rejected and all applicants, who had
appealed, were requested to leave Denmark no later than 1 September
1985.
The applicants did not comply with this request. Instead, on
12 September 1985, with the assistance of their Danish lawyer, L, they
all, except for Yves Küpfer (No. 16) but including other persons,
lodged a complaint with the Parliamentary Ombudsman. For this reason
the Ministry of Justice by letter of 11 November 1985 postponed the
deadline for leaving the country until further notice.
Having examined the case the Ombudsman in his report of
6 March 1986 found no reason to criticise the decisions taken.
Regarding the applicants in the case which is now before the
Commission, the Ombudsman suggested that they be given at least a
month to prepare their departure. Accordingly, the Ministry of
Justice decided on 11 March 1986 that the applicants, except for Yves
Küpfer (No. 16), should leave the country on 10 April 1986 at the
latest.
The applicants did not comply with this order either. Instead,
through another Danish lawyer, A, the applicants, except Yves Küpfer
and Marie Madeleine Thut, on 10 April 1986, asked the Directorate for
Aliens and the Ombudsman for a reconsideration of their case. A
meeting between representatives of the Church of Scientology and the
Minister of Justice furthermore took place on 9 April 1986. However,
by letters of 10, 11 and 14 April the Ministry of Justice, insofar as
it concerned the applicants of the present case, found it unwarranted
to change the date of departure.
On 15 April 1986 all applicants, except Yves Küpfer (No. 16),
through their Danish lawyer, L, instituted proceedings in the High
Court (Østre Landsret) against the Ministry of Justice in accordance
with their constitutional right set out in section 63 of the
Constitution. They argued that the Ministry of Justice should be
compelled to repeal its decisions of 28 June 1985 and grant the
applicants residence permits as requested. They referred inter alia
to the long period of time they had already lived in Denmark. This
case has subsequently been withdrawn by the applicants.
After having left Denmark, Veronika Künzi-Brenzikofer, Franz
Peter Künzi, Renate Maria and Matthias Tinner, Beat Schumacher, Anna
Maria Breuer and Marie Madeleine Thut submitted to the Directorate of
Aliens a request to have the Ministry of Justice's administrative
decision concerning their residence permits brought before the courts
in accordance with section 52 of the Aliens Act which provides for a
special procedure whereby an alien has the right to have certain
specific decisions concerning residence permits and expulsion set out
in this section brought before the court by the Directorate of Aliens
at the request of the alien concerned.
By letter of 17 July 1986 the applicants were informed that
they had all previously been granted a residence permit under
section 9, sub-section 2 no. 4 of the Aliens Act which, however, was
not mentioned in section 52 of the Act. Accordingly a decision taken
in accordance with this provision could not be brought before the
courts according to the Aliens Act.
COMPLAINTS
The applicants invoke Articles 6 para.1, 8 and 11 in
conjunction with Articles 9 and 14 of the Convention as well as
Article 4 of Protocol No. 4 to the Convention.
Under Article 6 para. 1 of the Convention the applicants
complain that, although they could bring their case before the High
Court, this remedy could not be taken into consideration for the
purpose of Article 6 para. 1 since this action had no suspensive
effect. Regarding the applicants' complaints, they did not therefore
have at their disposal an impartial tribunal which could, in a fair
hearing, determine the civil rights which allegedly were at stake.
The applicants also complain under Article 8 of the Convention
that the decisions rejecting their applications for residence permits
violate their right to respect for their family life. Many of the
applicants came to Denmark in the mid 70s and the Government's
decisions are without motivation. None of the applicants have been
found guilty of any criminal offence or otherwise acted in a way which
could allow the application of Article 8 para. 2.
The violation under Article 8 is particularly grave in regard
to those applicants who have small children, all born in Denmark and
with no ties with any other country.
In conjunction with Articles 9 and 14 of the Convention the
applicants furthermore invoke Article 11 alleging that the Church of
Scientology in Denmark is one of only four Mother Churches and the
existence of this religious association constitutes the very reason
for their settling in Denmark. The departure of the applicants from
Denmark would rupture the longstanding links with their numerous
friends united in this association.
Finally, under Article 4 of Protocol No. 4 the applicants
allege that the motives behind the refusals to renew the residence
permits were merely to get rid of persons belonging to the Church of
Scientology. The measure taken, in particular by the Ministry of
Justice on 28 June 1985, rejecting all appeals should be considered as
a collective expulsion of the applicants.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced and registered on 15 April
1986.
On the same day the Commission decided, pursuant to Rule 42
para. 2 (a) of its Rules of Procedure, to invite the Government to
submit certain information as to the facts of the case.
The Government submitted this information on 30 April 1986 and
the applicant's comments thereon were submitted on 2 July 1986.
On 18 July 1986 the Commission decided to invite the
respondent Government to submit written observations on the
admissibility and merits of the application.
The Government's observations were submitted on 19 September
1986 and the applicant's observations in reply were submitted on
4 March 1987.
SUBMISSIONS OF THE PARTIES
The Government
As to the admissibility of the case, the Government have
submitted that the activities of the Danish public administration are
subject to a legality principle under which regulations and decisions
of the administration are not allowed to violate the Danish
Constitution and statutes passed by the Danish Parliament, nor are
they allowed to interfere in the sphere of private citizens'
activities, except where specifically authorised by law.
Under the provisions of the Danish Constitution, the courts
are expressly and directly authorised to review administrative
regulations and decisions, cf. section 63 of the Danish Constitution.
In court practice, judicial review of administrative acts
takes place both in regard to general regulations and to concrete
decisions made by the Administration.
If, on the basis of a general administrative regulation
authorised by statute, the Administration has issued a concrete
restrictive or mandatory injunction, or a rejection, the addressee of
such injunction etc. will be entitled to go to court, even if the
injunction etc. simply represents a correct application of the
standard rule. By these means the addressee may not only cause the
discretion of the Administration in a particular case to be reviewed
but also the general regulations.
The Danish Constitution contains no express provision with
regard to the effect of a validly concluded treaty on domestic law.
The legal principles governing this question are, however, quite
clear.
Under Danish law provisions of a treaty, which are binding
upon Denmark, are, generally speaking, not directly enforceable by
Danish courts of law or by Danish administrative authorities.
However, when in doubt about the interpretation of a legal
provision, the law-enforcing authorities shall prefer the
interpretation that will best comply with existing treaty
obligations. This principle is known as the rule of interpretation.
Furthermore, in the absence of any special indications to the
contrary, a conflict between a treaty provision that has previously
been observed in Denmark, and a provision in legislation enacted
later, should be solved by applying the new provision in a manner that
will respect the treaty provision, even if the tenor of the new
provision is clearly at variance with the treaty. This is known as
the rule of presumption: the courts should "presume" that it has not
been the intention of Parliament to pass legislation contrary to
Denmark's international obligations.
An extensive formulation of the rule of interpretation is
given in a memorandum from the Ministry of Justice:
"... In the Ministry's view, Danish law courts
would in all probability prefer a mere ad hoc
application of a law to a literal interpretation
if the latter would make the state of Denmark
responsible under international law for an
unintentional violation of a treaty."
This formulation of the rule of interpretation was accepted by
the Danish Government when evaluating the questions of constitutional
law raised in regard to the Danish entry into the European
Communities.
In the present context one aspect of the widening of the rule
of interpretation is particularly worth noting, i.e. its consequences
for the exercise of discretionary powers by administrative
authorities. On this point the memorandum from the Ministry of
Justice states that administrative authorities should exercise
discretionary powers in such a way that the administrative acts - be
it decisions or general regulations - conform to validly contracted
international obligations. This should be regarded as a legal
obligation enforceable by judicial review under section 63 of the
Danish Constitution.
In Denmark, review by the courts of the Executive's general and
specific decisions pursuant to section 63 of the Constitution is a
common legal remedy. In the opinion of the Government, this legal
remedy should ordinarily have been tried prior to the filing of an
application with the Commission even though institution of proceedings
has no suspensive effect, cf. section 63 of the Constitution.
That section 63 of the Constitution concerning court
supervision of the Executive is a legal remedy which must have been
exhausted appears to have been assumed also by the Commission in
the case of Kjeldsen, Busk Madsen and Petersen v. Denmark (Comm.
Report 21.3.75 Eur. Court H.R., Series B No. 21).
However, in two cases involving expulsion of aliens, the
Commission assumed that institution of proceedings pursuant to section
63 of the Danish Constitution is not effective within the meaning of
Article 26 of the Convention and need not be exhausted because such
proceedings do not suspend the duty to implement the administrative
order in question (No. 7011/75, Dec. 3.10.75, D.R. 4 p. 215 and No.
7465/76, Dec. 29.9.76, D.R. 2 p. 153).
In cases involving expulsion of aliens, the reason why the
alien wishes to remain in Denmark will frequently be his fear of
returning to his home country, for instance on account of war or fear
of reprisals from the authorities of his home country. Such was the
situation in both the above quoted cases in which the value of
proceedings might consequently be dubious once the aliens in question
had left Denmark.
But in the present case the reason why the applicants wish
to remain in Denmark is not any fear of returning to their home
country but solely their links with Denmark and with the Church of
Scientology. Moreover, the applicants could have pursued the
proceedings by returning to Denmark themselves because six months
after their departure from Denmark they would be allowed to enter
Denmark according to the general rules and to stay there for up to
three months without a visa. It might also have been possible for
them to obtain permission to stay for a brief period for the purpose
of looking after their interests during court proceedings.
As mentioned above, Danish courts are expressly and directly
authorised to review administrative regulations and decisions, and as
stated in the foregoing, it is an element of the so-called rule of
interpretation that Danish administrative authorities are considered
under an obligation to exercise discretionary powers in such a way that
administrative acts, whether decisions or general regulations,
conform to international obligations. In fact the Danish courts have
in several cases examined the conformity of administrative acts with
the European Convention on Human Rights. Hence the Government do not
accept the non-suspensive effect of proceedings under section 63 as an
argument for considering that the legal remedy should not be effective
within the meaning of Article 26.
In the opinion of the Danish Government the application must
therefore be declared inadmissible.
As to the merits of the case, the Government have furthermore
submitted that the Commission has constantly held that the right of a
person to enter and to take up residence in a country of which he is
not a national is not as such guaranteed by the Convention but an
expulsion of a person from a country where close family members reside
may raise an issue under Article 8 of the Convention.
However, as far as the Danish Government are aware, the case
at hand holds no examples of family separation. Those applicants who
are married are the spouses of aliens whose residence permits have not
been extended either, and with one exception, there are no known
family ties with Denmark. The applicants moreover held temporary
residence permits only and therefore they had never had grounds for
counting on staying in Denmark indefinitely.
Hence, without any family ties with Denmark on behalf of the
applicants and without any justified expectation of being allowed to
stay in Denmark, and since there appear to be no obstacles to the
applicants effectively establishing their family life in their home
countries, the Government find that this part of the application
should be dismissed as manifestly ill-founded.
As to the questions raised under Article 4 of Protocol No. 4
to the Convention, the Government have submitted that each of the
applicants' cases was dealt with separately and an evaluation was made
on a case-by-case basis to determine whether under the provisions of
the Aliens Act and the Executive Order the persons in question were
entitled to additional extension or, perhaps, permanent residence
permits. That the outcome of the applicants' cases turned out to be
identical is thus due only to the fact that none was covered by any
of the provisions of the Act, such as the provisions on close family
or similar ties to a person permanently resident in Denmark.
Finally, the Government have rejected the applicants'
allegations concerning discrimination, since persons affiliated to the
Church of Scientology are treated according to precisely the same
guidelines as are persons affiliated to other religious communities.
The applicants
As to the admissibility of the case, the applicants have
submitted the following:
The Danish Government admit that any proceedings instituted in
accordance with section 63 of the Constitution have no suspensive
effect. They claim that this would not be a barrier to the existence
of an effective and adequate remedy due to the fact that the
applicants' wish to remain in Denmark is not caused by any fear of
returning to their home countries, for instance, on account of war or
reprisals from the authorities of their home countries, but solely
by their links with Denmark and with the Church of Scientology
in Denmark.
The rule that the non-suspensive effect of an appeal of an
administrative decision would preclude the existence of an effective
and adequate remedy cannot be subordinated to any condition of
personal threat or danger to the applicant.
The Commission has upheld as constant case-law that not only
are proceedings that do not suspend the duty to implement the
administrative order in question, to be considered as ineffective or
inadequate remedies, but such proceedings need not be exhausted if
they are certain not to be effective or adequate.
More directly pertinent to the present case, the Commission
has in several instances found that a foreigner who submits a
complaint concerning a final administrative decision on deportation
need not take steps to have the matter tried in court on the basis of
section 63 of the Danish Constitution. It was decided that the
possibility of the courts to review the legality of the
administrative decision in accordance with section 63 could not be
considered as an effective legal remedy since filing suit had no
suspensive effect (cf. No. 7011/75, Dec. 3.10.75, D.R. 4 p. 215 and
No. 7465/76, Dec. 29.9.76, D.R. 2 p. 153).
It follows from this case law that the conditions of
exhaustion of domestic remedies as laid down in Article 26 of the
Convention are not applied blindly.
The Commission has considered that the Convention is intended
to guarantee not theoretical or illusory but practical and effective
rights. This condition will be found to be particularly difficult to
apply to the letter when one is faced with administrative decisions,
immediately enforceable, which would result in immediate and
irreversible damage, suffered despite any internal avenues of recourse
being pursued.
In the present case it is clear that the applicants have been
compelled to leave Danmark by a given date, and that the police have
been ordered to ensure that such be carried out no matter what, in
spite of any internal remedy that could have been engaged, and while,
in fact, most of the applicants, due to their length of stay in
Denmark, were entitled to permanent resident status.
This brutal rupture with their legitimately established home
has created certain immediate and irreversible damage for these
applicants.
Contrary to the Danish Government's allegations, it is not
sufficient that the applicants could pursue the proceedings by
returning to Denmark six months after their departure and stay there
for up to three months without a visa, for the Danish Government to
claim that it provides an effective and adequate remedy.
Furthermore, as concerns the Government's assertion that it
might also have been possible for them to obtain permission to stay
for a brief period for the purpose of looking after their interests
during court proceedings, the Danish Government show themselves to be
of particularly bad faith. The applicants had indeed submitted
requests for such permission to the Ministry of Justice on 14 April
1986, indicating therein their intention to go before the High Court
pursuant to section 63 of the Danish Constitution and the need for
suspensive effect of this appeal in compliance with Article 13 of the
Convention. Nevertheless the Ministry of Justice instructed the
competent police authorities to ensure that the applicants left the
country immediately.
Finally, in order definitively to refute the affirmations of
the Danish Government as to the existence of a certain effective and
adequate remedy, the applicants refer to the Directorate of Aliens'
reply of 17 July 1986 to each of their applications (filed after
having followed the administrative order, thus while being outside
Danish territory) for leave to appeal the administrative decision to
the court as set out in THE FACTS (p.6 above). It is clear from this
that the applicants could not bring their case before the courts.
The Danish Government are therefore ill-advised to claim before
the Commission that an avenue of recourse was available to the
applicants, and to conclude the inadmissibility of their application
before the Commission, when, in reality, this Government have expressly
denied these same applicants any right to an action against the
administrative decisions before the Danish jurisdictions.
Thus this document, which the Danish Government had wittingly
omitted to mention before the Commission, irrefutably demonstrates
that the recourse allegedly open to the applicants does not in fact
exist, nor, consequently, the possibility for the applicants to
complain of violations of the Convention before the Danish
jurisdictions.
The applicants consider they have demonstrated that a recourse
pursuant to section 63 of the Danish Constitution could not be
considered as an effective and adequate remedy, firstly, because of
its non-suspensive effect, secondly, because, as made clear by the
Ministry of Justice itself, this same recourse was not even open to
the applicants. The applicants submit that, in any event, such a
recourse would not have been an effective remedy as it would have
offered no chances of success.
In more general terms concerning the interpretation of
section 63 of the Constitution, the situation is that this section
does not leave open the possibility of control of the Ministry's
discretionary evaluation. The outcome of a supposed court case,
which would have been wholly concerned with the correctness of the
Ministry's discretionary evaluation, would have been certain
beforehand.
The applicants maintain that the principle upheld by the
Commission as regards the effectiveness of a remedy appears to be
relevant to the present case: an appeal is ineffective and does not
therefore have to be pursued if it is certain that, considering the
constant case-law, it does not offer any chance of success (cf. No.
7705/76, Dec. 5.7.77, D.R. 9 p. 196 (203)).
As to the merits of their complaints, the applicants have
submitted the following:
The Commission and the Court of Human Rights have found with
regard to Article 8 that its object is essentially that of protecting
the individual against arbitrary interference by the public
authorities in his private or family life.
The Court and the Commission have thus intended to guarantee
individuals the freedom to organise their private and family life as
they see fit on the conditions that, firstly, they establish
themselves within a given country, secondly, that they conduct
themselves as law-abiding citizens. These two conditions being
fulfilled and respected, the public authorities are bound not to
interfere arbitrarily within this sphere.
In the present case, the applicants as individuals have each
fulfilled and respected the above conditions. They were accepted
within the Danish territory and granted residence permits in
accordance with the law, they established their proper private and
family lives each in his own way, which could not in any manner be
censured by the public authorities in a democratic society. This was
even more so as no activity contrary to the public order could be
reproached to any of the applicants. In consequence, the applicants
submit that they should not have been deported without any
consideration given to the arbitrary interference in the private and
family life they had established.
In this case, it is clear that the Danish authorities gave no
due attention to the applicants' association to Danish society,
including the length of stay in Denmark as well as the strain
resulting from the deportation as demonstrated in the application.
Had the authority given due attention to the applicant's
situation, it is incontestable that the applicants had a legitimate
expectancy to be allowed to stay in Denmark and to found their
private and family life in conformity with the general practice there.
The applicants maintain, therefore, that their rights and
freedoms under Article 8, which are to be guaranteed whether they be
nationals or not of a given state, have been violated by the Danish
Government who have, in pursuing their intention to restrict the
growth of the Church of Scientology in Denmark, arbitrarily interfered
in their individual private and family lives and the organisation
thereof.
As concerns the question of a violation of Article 4 of
Protocol No. 4, the Danish Government allege that no such violations
have occurred.
However, contrary to the affirmations of the Danish
Government, the expulsion of the applicants cannot be qualified as
the result of a series of concrete individual decisions taken upon an
objective basis. The applicants strongly protest against these claims
from the Danish Government according to which their individual
situations would have been taken into consideration.
No real evaluation on a case-by-case basis has been made to
determine whether, under the provisions of the Aliens Act and the
Executive Order, the persons in question were entitled to additional
extension or perhaps permanent residence permits.
In an attempt to have their individual situations taken into
account by the Ministry of Justice, the applicants each submitted
information concerning their personal situations, their links with and
their social and family life in Denmark. This they did on
10 April 1986. The collective response from the Ministry of Justice
was received within a period of less than 24 hours and stated
essentially that the information was irrelevant to the decisions. It
is thus not admissible that the Danish Government continue to allege
that even a hasty examination of each of the individual cases had
been carried out.
As regards the question of discrimination, the Danish
Government base their argumentation exclusively on the fact that the
new rules, though clearly less favourable to the members of the Church
of Scientology, could not be considered as discriminatory as,
according to the Government, they resulted in an equalisation of
treatment with the members of other religious communities. These
allegations are, however, contrary to reality which is shown in the
way members of the Catholic Church are treated by the authorities.
Consequently, the Danish Government can maintain only with
great difficulty that the Church of Scientology alone escaped
application of the two-year rule since the Catholic Church had
benefited before 1985, and benefits today, from a much more
favourable treatment.
It is therefore incontestable that the expelled applicants
have been subjected to arbitrary and highly discriminatory
treatment because of their association with the Church of Scientology.
This special treatment reserved for the applicants constitutes not
only violations of Articles 8 and 11 of the Convention and Article 4
of Protocol No. 4, in that the interference in their private life,
their freedom of association and their collective expulsion is
patent, but also violations of the same Articles taken together with
Articles 9 and 14, in that the treatment by the Danish Government was
founded on the applicants' belonging to a determined religion and
differs from their treatment of members of other religions.
THE LAW
1. Under Article 6 para. 1 (Art. 6-1) of the Convention the applicants
have complained that, although they could bring their case before the High
Court, this remedy could not be taken into consideration for the purpose of
Article 6 para. 1 (Art. 6-1) since this measure had no suspensive effect. They
did not therefore have at their disposal an impartial tribunal which could in a
fair hearing determine the civil rights which allegedly were at stake.
Under the above provision of the Convention everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal in the determination of his civil
rights and obligations or of any criminal charge against him.
The applicants have not alleged that what is being determined
in their case is a criminal charge and neither has the Commission
found room for such an interpretation. Accordingly, Article 6 para. 1
(Art. 6-1) would only be applicable in the present case if the dispute
related to the applicants' "civil righs or obligations".
In this respect the Commission has found Article 6 para. 1 (Art. 6-1)
to be inapplicable to proceedings regarding immigration and deportation matters
(e.g. No. 7289/75 and 7349/76, Dec. 14.7.77, D.R. 9 p. 57 (76) with further
references, No. 7729/76, Dec. 17.12.76, D.R. 7 p. 164 and No. 8244/78, Dec.
2.5.79, D.R. 17 p. 149).
In the present case the Commission recalls that the questions
the applicants raise relate to their alleged right to remain in
Denmark and not to be expelled from that country. Consequently, in
view of the said case-law, they do not involve the determination of civil
rights or obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
It follows that Article 6 para. 1 (Art. 6-1) is not applicable in the
present case and this part of the application must therefore be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention as incompatible
ratione materiae with the Convention.
2. The applicants also complain under Article 8 (Art. 8) of the Convention
of the decision rejecting their applications for residence permits.
Under Article 11 (Art. 11+9+14), in conjunction with Articles 9 and 14, they
furthermore allege that their departure from Denmark has ruptured the
long-standing links with their numerous friends united in the Church
of Scientology and, finally, they complain, under Article 4 of
Protocol No. 4 (P4-4) to the Convention, that the measure taken constitutes
a collective expulsion, directed at the collective membership of this
Church.
The Commission recalls that it is not required to decide
whether or not the facts submitted by an applicant disclose any
appearance of a violation of the provisions referred to if, inter
alia, the requirement under Article 26 (Art. 26) of the Convention as to the
exhaustion of domestic remedies has not been complied with. In other
words, under Article 26 (Art. 26) of the Convention, the Commission may only
deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case the respondent Government have argued that
the decisions to which the applicants refer can be challenged by them
before Danish courts of law under section 63 of the Danish
Constitution. As they have failed to seek judicial review of any of
these decisions they have not, in the Government's view, exhausted the
domestic remedies at their disposal.
The applicants have argued, on the other hand, that it is not
possible for them to challenge the decisions in question before the
courts, firstly because they did request that their case be brought
before the courts under section 52 of the Aliens Act but were told
that this was not possible and secondly since the courts can only
examine the validity of an administrative act in case of formal
errors, incompetence or disability. To review discretionary decisions
such as those in their case would fall outside the competence of the
courts.
The Commission first recalls that it has frequently held that,
in order to comply with the requirements of Article 26 (Art. 26) of the
Convention, an applicant is obliged to exhaust every domestic remedy
which cannot clearly be said to lack any prospect of success (see
e.g. No. 6271/73, Dec. 13.5.76, D.R. 6 p. 62).
In the present case it is true that the applicants could not
have their case brought before the courts under section 52 of the
Aliens Act. However, this does not mean that they were prevented from
bringing their case before the ordinary courts of law in accordance
with section 63 of the Danish Constitution. It furthermore appears
that in fact they did institute proceedings in the High Court, but at
a later stage withdrew the case without obtaining from the High Court
a ruling on their complaints.
The Commission therefore finds it established that the
applicants have not exhausted a domestic remedy at their disposal.
It now remains to be considered whether this remedy can be considered
to be an effective one which the applicants would have to exhaust in
order to comply with the requirements set out in Article 26 (Art. 26) of the
Convention. In this respect the Commission recalls that it has found,
in two cases covering deportation, that the remedy under section 63 of
the Danish Constitution could not be considered effective (No.
7011/75, Dec. 3.10.75, D.R. 4 p. 215 and No. 7465/76, Dec. 29.9.76,
D.R. 7 p. 153). Both cases, however, raised issues of persecution
in the countries to which the applicants were to be expelled.
Furthermore, once expelled, these applicants would not have been able
to return to Denmark even if they had been successful in the court
proceedings. This is not the situation in the present case. The
applicants are, with one exception, Austrian and Swiss citizens who
would later be free to leave Austria and Switzerland to return to
Denmark if they obtained a favourable court decision. The only
exception could be the applicant Mohammed Laimeche, who is an Algerian
citizen, but there is no evidence in regard to him either which shows
that he would be prevented from leaving Algeria to go back to Denmark.
Moreover, the Commission recalls that it has on several
occasions held that proceedings under section 63 of the Danish
Constitution otherwise constitute a remedy which must be tried in
order to comply with Article 26 (Art. 26) of the Convention (cf. No.
5095/71, Dec. 16.12.75, Collection 43 p. 44, Nos. 5920/72 and 5926/72,
Dec. 29.5.73, Collection 44 p. 93, No. 6854/74, Dec. 29.9.76, D.R. 7
p. 81 and No. 7639/76, Dec. 5.10.77, D.R. 11 p. 169).
Although in proceedings under section 63 of the Danish
Constitution the court examines primarily the questions of legality,
the Commission is satisfied that if there are elements of
discrimination, as alleged in the present case, these matters can be
reviewed by the court. As referred to by the respondent Government
the Commission has also noted that it is a widely held view in Denmark
that the court would examine whether the administrative discretion has
been exercised in conformity with the principles of the Convention.
The Commission therefore finds that the remedy concerned
cannot be said to have been clearly without any prospects of
success. Consequently, the applicants cannot be considered to have
exhausted the effective remedies available to them under Danish law.
Moreover, an examination of the case as it has been submitted does
not disclose the existence of any other special circumstances which
might have absolved the applicants, according to the generally
recognised rules of international law, from exhausting this remedy.
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies and this part of
the application must therefore be rejected under Article 27, para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
(H. C. KRÜGER) (J. A. FROWEIN)