Indfødsretsudvalget 2014-15 (2. samling)
IFU Alm.del Bilag 35
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United Nations
CCPR
/C/113/D/2001/2010
Distr.: General
19 May 2015
Original: English
International Covenant on
Civil and Political Rights
Human Rights Committee
Communication No. 2001/2010
Views adopted by the Committee at its 113th session
(16 March–2 April 2015)
Submitted by:
Alleged victim:
State party:
Date of communication:
Document references:
Q (represented by the Documentation and
Advisory Centre on Racial Discrimination)
The author
Denmark
15 July 2010 (initial submission)
Special Rapporteur’s decision under rules 92 and
97, transmitted to the State party on 21 April
2010 (not issued in document form)
1 April 2015
Refusal to grant nationality through naturalization
Claim outside the scope of the Covenant
Right to equal protection of the law
Article 26
Article 2
Date of adoption of Views:
Subject matter:
Procedural issues:
Substantive issues:
Articles of the Covenant:
Articles of the Optional Protocol:
GE.15-10053 (E)
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Annex
Views of the Human Rights Committee under article 5 (4) of
the Optional Protocol to the International Covenant on Civil
and Political Rights (113th session)
concerning
Communication No. 2001/2010
*
Submitted by:
Alleged victim:
State party:
Date of communication:
Q
(represented by the Documentation and
Advisory Centre on Racial Discrimination)
The author
Denmark
15 July 2010 (initial submission)
The Human Rights Committee
,
established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting
on 1 April 2015,
Having concluded
its consideration of communication No. 2001/2010, submitted to
the Human Rights Committee by Q under the Optional Protocol to the International
Covenant on Civil and Political Rights,
Having taken into account
all written information made available to it by the author
of the communication and the State party,
Adopts
the following:
Views under article 5 (4) of the Optional Protocol
1.
The author of the communication is Q, an Iraqi citizen born on 2 May 1971. He
claims to be a victim of a violation by Denmark of article 26 of the Covenant.
1
The author
is represented.
Facts as presented by the author
2.1
The author arrived in Denmark on 15 October 1997 and was granted humanitarian
protection. On 30 April 1998, he obtained a residence permit and on 9 May 2001 he was
provided with a residence permit of indefinite duration. The author is married and has three
children. He is illiterate in Danish and in Arabic, his mother tongue.
*
The following members of the Committee participated in the consideration of the present
communication: Yadh Ben Achour, Lazhari Bouzid, Sarah Cleveland, Ahmed Amin Fathalla, Olivier
de Frouville, Yuji Iwasawa, Ivana Jelić, Duncan Laki Muhumuza, Photini Pazartzis, Mauro Politi,
Sir Nigel Rodley, Víctor Manuel Rodríguez-Rescia, Fabián Omar Salvioli, Dheerujlall Seetulsingh,
Anja Seibert-Fohr, Yuval Shany, Konstantine Vardzelashvili and Margo Waterval.
The Optional Protocol entered into force for Denmark on 23 March 1976.
1
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2.2
On 12 May 2005, the author applied for Danish naturalization before the
Copenhagen police. In that connection he was summoned for a police interview on 16
January 2006. The Ministry of Refugee, Immigration and Integration Affairs received the
application from the police on 17 January 2006. On 27 January 2006, the Ministry informed
the author that his application had been received and that the examination procedure would
start within 12 to 16 months. On 25 June 2007 the author was requested to submit
information on, inter alia, his Danish language proficiency and any criminal record and
public debts. The author submitted the requested information on 2 July 2007.
2.3
On 4 July 2007, the Ministry informed the author that the documentation he had
submitted regarding his participation in language courses did not satisfy the requirement of
language proficiency contained in the Guidelines on Naturalization, section 24 of which
indicates that the applicant should be proficient in the Danish language and have knowledge
of Danish society, culture and history. The author then requested to be exempted from the
language requirement for medical reasons, pursuant to section 24, paragraph 3, of the
Guidelines.
2
On 5 October 2007, the Ministry notified the author that his request for
exemption had been rejected and that no proper basis had been found to bring it to the
attention of the Parliament’s Naturalization Committee, since the author had failed to
document severe physical or mental illness.
2.4
The author then provided a medical opinion from his psychiatrist, Dr. S.B.J., and
requested a reconsideration of his exemption request. As a result, his case was brought
before the Naturalization Committee. On 3 June 2008, the Ministry informed the author that
2
Section 24 of Circular Letter No. 61 of 22 September 2008 containing the Guidelines on
Naturalization reads as follows:
(1) It is a condition for listing in a naturalisation bill that the applicant documents skills in the
Danish language by a certificate of the Danish 3 Examination of the Danish language centres
or one of the examinations listed in Schedule 3.
(2) It is furthermore a condition for listing in a naturalisation bill that the applicant documents
knowledge of Danish society, culture and history by a certificate of a special citizenship test.
(3) Where exceptional circumstances make it appropriate, the question of whether exemption
from the conditions of subsections (1) and (2) hereof may be granted will be submitted to the
Naturalisation Committee of the Danish Parliament. The question will be submitted if the
applicant documents that he or she suffers from a physical or mental illness of a very serious
nature and consequently finds himself or herself to be incapable — or to have no reasonable
prospects — of satisfying the conditions of subsections (1) and (2) hereof.
(4) The circumstances referred to in subsection (3) hereof must be documented by a certificate
from a medical professional. The certificate must state whether the treatment options are
exhausted and whether the person will become able to acquire skills in the Danish language at
the required level in future.
The footnote to paragraph 3 indicates: “The Ministry of Integration is assumed to submit the question
of exemption from the requirement of skills in the Danish language, etc., to the Naturalisation
Committee in cases where the applicant, for example, suffers from a severe physical disability (such
as Down’s syndrome), is brain damaged, blind or deaf or suffers from a severe mental disorder such
as (paranoid) schizophrenia, a psychosis or a severe depression. The Ministry of Integration is further
assumed to refuse the application of applicants who suffer from [post-traumatic stress disorder], also
where the condition is chronic and this is documented by a certificate from a medical professional.”
The footnote to paragraph 4 states: “As in the case of residence permits issued on humanitarian
grounds, a certificate may be disregarded if the medical professional in question requests on his or her
own initiative that naturalisation be granted and has become personally involved in the case in such
manner that it may be considered doubtful whether the certificate reflects an impartial assessment of
the applicant’s health. In such cases, the applicant for naturalisation is requested to submit a
certificate from another medical professional.”
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the Committee had found no basis on which to grant the exemption. No explanation was
given as to the reasons for the denial.
2.5
On 9 September 2009, Dr. S.B.J. wrote to the Ministry about his medical assessment
of the author. He indicated that he had been following the author since December 2007; that
the author suffered from a severe chronic mental disorder in the form of paranoid psychosis
and depression; that he was being treated with medication and that there was no prospect of
improvement of his condition. As a result, the Ministry examined the case again. However,
on 6 November 2009 the author was informed that Dr. S.B.J.’s letter did not contain new
information and therefore the Ministry had not found grounds to resubmit the case to the
Naturalization Committee.
2.6
On 12 November 2009, Dr. S.B.J. wrote to the Ministry requesting a detailed
reasoning of the rejection so that he could integrate that information in the treatment of his
patient in the best possible manner. He also indicated that, from a medical perspective, the
denial was unfounded, since it was well established that the author suffered from the above-
mentioned disorders and thus satisfied prima facie the conditions for exemption from the
language requirement. He also indicated that the decision “made the continued treatment
difficult, where the established medical treatment is of crucial significance for the patient to
be capable of acting simply normal around his family and in social context”. On
8 December 2009, the Ministry replied that there was no basis for bringing the case before
the Naturalization Committee again, that the exemption provision was open to
interpretation and that the mere presentation of a case before the Naturalization Committee
did not mean that the exemption would be granted.
The complaint
3.1
The author claims that, by refusing to grant him the exemption from the language
requirement that would enable him to become naturalized, the State party violated article 26
read in conjunction with article 2 (1) of the Covenant. He provided ample medical evidence
regarding the severe mental ailments he suffers and which make it impossible for him to
learn Danish at the required level. The refusal to grant such exemption is therefore
arbitrary. The failure to treat the author as a person with mental and learning disabilities
and thus acknowledge the need to grant him the exemption contained in the law is a
discriminatory measure and a violation of his right to equality before the law. The author
adds that the measure is disproportionate to any legitimate goal.
3.2
The footnote to section 24, paragraph 4, of Circular Letter No. 61 indicates that a
medical certificate may be disregarded if the medical professional in question requests on
his or her own initiative that naturalization be granted and has become personally involved
in the case in such a manner that it may be considered doubtful whether the certificate
reflects an impartial assessment of the applicant’s health. The author claims that the
authorities should have informed him about the relevance of this rule in his case and given
him the opportunity to produce an opinion from a different medical professional. Since that
was not done, the decision to disregard relevant and available medical information cannot
be deemed a legitimate one.
3.3
The authorities did not explain the grounds for the denial, since Danish
administrative law does not apply to decisions formally placed under the competence of the
legislature. This circumstance has been used as a measure to hide an illegal decision behind
a veil of the separation of powers. The Naturalization Committee has previously admitted
exemptions from the language requirement in similar cases involving physical or mental
illnesses.
3.4
The author further contends that the criteria included in section 24 of the Guidelines
are drafted in an opaque way, which opens the door to discrimination. Danish law provides
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no legal guarantee that the criteria are applied objectively and there is no monitoring of the
objective application of the exemption of the language requirement. Irrelevant factors, such
as the ethnic origin of the author, may have influenced the Naturalization Committee in its
assessment.
3.5
Regarding exhaustion of domestic remedies, the author claims that there is no
possibility to appeal a decision of the Naturalization Committee denying nationality.
Consequently, the author has no possibility to challenge the decision in the domestic courts.
State party’s observations on admissibility and merits
4.1
On 17 May 2011, the State party submitted its observations on admissibility and
merits. The State party refers to the author’s application for naturalization and indicates that
by letter of 25 June 2007 the Ministry advised the author that a new agreement on
nationality had been concluded on 8 December 2005 (Circular Letter No. 9 of 12 January
2006 on new guidelines for naturalization), and that it applied to applications submitted
from 12 December 2005. As the author had submitted his application on 12 May 2005 it
fell within the scope of Circular Letter No. 55 of 12 June 2002 on new guidelines for listing
in a naturalization bill. However, section 24, paragraph 3, of Circular Letter No. 9,
concerning the exemption from the condition of skills in the Danish language, applied
regardless of the application date. The Ministry therefore requested the author to provide
proof, inter alia, of his Danish language skills. As the author did not submit such
information, the Ministry requested it again on 4 July 2007.
4.2
On 10 August 2007, the author submitted a medical certificate dated 9 August 2007
in which Dr. A.R. and Dr. N.J. stated that the author suffered from post-traumatic stress
disorder and had severe sequelae from imprisonment, torture and interrogations; that this
had caused concentration difficulties, depression, anxiety and agitation; and that the author
was consequently unable to participate in learning activities. On 20 August 2007, the author
applied for exemption from the requirement of Danish language skills. He enclosed with his
letter a medical certificate dated 10 August 2007 from S.K., a psychiatric consultant, stating
that the author suffered from post-traumatic stress disorder involving personality changes,
severe depressive episodes/chronic state. The author also suffered from pain in both knees,
respiratory problems and curvature of the spine.
4.3
On 5 October 2007, the Ministry informed the author that it had found no basis for
submitting his application to the Naturalization Committee and asking the Committee to
decide whether he could be exempted from the language requirement, as he had provided
no evidence showing that he suffered from a physical or mental illness of a very serious
nature, as provided by section 24, paragraph 3, of the Guidelines. The Ministry based its
decision on the fact that the author suffered from post-traumatic stress disorder involving
personality changes, moderate depressive episodes and congenital weakness down the right
side of his body, and that, according to the Guidelines, those were not diseases that
warranted submission of a case to the Naturalization Committee.
4.4
On 24 January 2008, the Ministry received a letter from the author that included a
medical certificate dated 10 January 2008 signed by Dr. S.B.J., who stated that the
applicant suffered from psychotic symptoms in the form of loss of reality with aural
hallucinations and paranoid delusions, as well as organic brain damage that might be
congenital. The Ministry considered this letter as an application to reopen the proceedings
related to the author’s application for Danish nationality and informed the author that his
application would be submitted to the Naturalization Committee for a decision on the
exemption of the language requirement. The author would be listed in a naturalization bill
only if such exemption was granted.
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4.5
The Ministry submitted the application to the Naturalization Committee at its
meeting on 22 May 2008. The submission was accompanied by various certificates stating
that, at that time, the author suffered from severe psychosis with aural hallucinations and
paranoid delusions, organic brain damage, moderate to severe depressive periods, post-
traumatic stress disorder involving personality changes and various physical disorders in
the form of pain in both knees, respiratory problems, curvature of the spine and congenital
hemiparesis. The Committee concluded that it could not grant the exemption on the basis of
the documents available. Accordingly, by letter of 3 June 2008, the Ministry informed the
author that his application for naturalization had been refused.
4.6
The Ministry reopened again the application proceedings following Dr. S.B.J.’s
letter dated 9 September 2009 (see para. 2.5 above). By a letter dated 6 November 2009, the
Ministry informed the author that it appeared from the certificate signed by Dr. S.B.J. that
he suffered from a chronic mental disorder in the form of a paranoid psychosis, and that the
Ministry thus found that the certificate did not provide any decisive new information
compared with the certificates that had formed the basis of the decision by the
Naturalization Committee not to grant the exemption.
4.7
Following Dr. S.B.J.’s request for clarification (see para. 2.6 above) the Ministry
replied, on 8 December 2009, that the competence to decide who can be listed in a
naturalization bill was vested in the Danish Parliament and that the majority in Parliament
had, in accordance with section 44 of the Constitution, laid down the guidelines according
to which the Ministry administered the law. It stated that the guidelines for listing in a
naturalization bill had been agreed upon by the parties in Government, that the agreement
was published in Circular Letter No. 61 of 22 September 2008 and that it was the opinion
of the parties to the agreement that it must be a reasonable requirement that applicants for
Danish nationality can manage life in Danish society, including speaking, reading and
understanding Danish. The language requirement was thus one of the decisive conditions
for naturalization. Only exceptional cases of physical or mental illness of a very serious
nature were submitted to the Naturalization Committee for its decision as to whether an
exemption could be granted. The exemption provision was open to interpretation, meaning
that practice was laid down by the majority of the Naturalization Committee at any time.
The fact that an application had been submitted to the Committee for a decision on the
exemption did not mean that the Committee would grant the exemption. Furthermore, the
decisions of the Committee did not fall within the rules of the Public Administration Act on
disclosing reasons for written decisions, but the Ministry did ensure good administrative
practice throughout the proceedings related to the examination of applications. If possible,
the Ministry would inform persons applying for nationality of the reasons why their
application had been refused. However, as Committee proceedings were confidential, the
Ministry was unable to give further details about the reason for a decision made by the
Committee. Those decisions could not be appealed to any other authority. Following his
request, the Ministry granted the author’s counsel access to the documents related to his
application for nationality on 31 May 2010.
4.8
As a consequence of section 44, paragraph 1, of the Danish Constitution,
naturalization is the exclusive prerogative of the legislature. The system whereby
nationality is granted by Act of Parliament thus implies that administrative or judicial
authorities cannot decide at their own discretion whether foreigners can obtain Danish
nationality through naturalization, and Parliament does not leave any discretion to the
central administration in this regard. Accordingly, the process cannot be characterized as an
administrative one. The debates and votes of the Committee in cases regarding exemption
are confidential and only Committee members can participate in the meetings. This is
because, during its assessment of the individual applications for nationality, the Committee
deals with sensitive personal information that is not considered suitable for discussion in
open meetings in Parliament out of concern for the applicant.
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4.9
The initial examination of applications for naturalization by Act of Parliament
carried out by the Ministry, including refusals of applications from persons who do not
meet the requirements and decisions to submit or refuse to submit cases to the
Naturalization Committee, as well as the decisions of the Committee, are not made pursuant
to a statute, but are classified as preparation of a statute. When preparing naturalization bills
and assessing whether applicants can be listed in a naturalization bill, the Ministry is
obliged to adhere to the Guidelines on Naturalization contained in Circular Letter No. 61,
as agreed by the majority in Parliament. This also implies that the procedure with regard to
naturalization by Act of Parliament is not governed by the general principles of
administrative law.
4.10 Neither the applicants nor the Ministry are given the reasons why the Naturalization
Committee grants or does not grant exemption from the requirements for listing in a
naturalization bill. Nevertheless, Parliament has declared that, to the extent possible,
decisions taken in the process of naturalization by Act of Parliament must be made with due
consideration of the rules of the Public Administration Act and other principles of public
administration during the examination of applications by the Ministry. Parliament stated
this view in its Decision No. V 36 of 15 January 1998, according to which Parliament
instructs the Ministry to comply with international conventions and to ensure that the rules
of the Public Administration Act and other principles of public administration are observed
when naturalization bills are prepared.
4.11 The Guidelines on Naturalization contained in Circular Letter No. 61 stipulate the
requirements that must be satisfied in order for applicants to be listed in a naturalization bill
without prior submission of their application to the Naturalization Committee. Applicants
listed in a naturalization bill therefore either have satisfied the requirements of the
Guidelines or have been exempted from certain requirements following the submission of
their application to the Committee. On this basis, the parties in Government who agreed on
the Guidelines will vote in favour of the Government’s naturalization bill at the readings of
the bill in Parliament. If an applicant fails to meet one or more of the requirements set out
in the Guidelines on Naturalization, the Ministry will refuse the application in accordance
with the authorization given to the Ministry by Parliament. If such applicant meets the
requirements at a later stage he or she may ask the Ministry to reassess the application. If at
that time all the requirements are met the applicant will be listed in a naturalization bill.
4.12 If an applicant does not meet the requirements set out in section 24, paragraphs 1
and 2, of the Guidelines the question of whether an exemption should be granted must be
submitted to the Naturalization Committee when exceptional circumstances warrant it. If
the Committee finds that an exemption should be granted, the applicant will be listed in a
naturalization bill. If it finds that no exemption should be granted, the application will be
refused. If, at a later stage, the applicant meets the requirements or if new information on
the applicant’s health is provided, the applicant may ask the Ministry to reassess the
application. The Ministry cannot, at its own discretion, list an applicant who does not meet
the requirements. The applicant in question can be listed only if the Committee has granted
an exemption.
4.13 Persons holding a valid permanent residence permit have the same rights as Danish
nationals in most aspects of life in Danish society, such as the right to a pension if they are
unable to work owing to ill health and other relevant social benefits. The decision to grant
social benefits also to non-nationals is based on one of the objectives of the Danish
integration policy, which is to ensure that everyone, regardless of nationality, can
participate and contribute to society on an equal footing and has the competences necessary
to make use of his or her abilities and resources. This includes access to language training,
the labour market and education. On this basis, most rights and responsibilities set out in
Danish legislation are conditional on residence in Denmark and not on the nationality of the
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person in question. Naturally, however, some rights and responsibilities require Danish
nationality. Thus, only Danish nationals can hold a Danish passport and vote in general
elections for Parliament, just as appointment to certain public offices, such as judge, police
officer or juror, requires Danish nationality. Danish nationals are also granted the right to
diplomatic protection and cannot be expelled from Denmark.
4.14 The State party provides statistics on the number of cases submitted to the
Naturalization Committee for assessment of exemption from proof of Danish language
skills and proof of the special citizenship test, from 2005 to 2010. The number of
exemptions granted were as follows: 65 out of 540 cases requested in 2005; 103 out of
359 cases requested in 2006; 37 out of 108 cases requested in 2007; 32 out of 168 cases
requested in 2008; 72 out of 187 cases requested in 2009; and 118 out of 234 cases
requested in 2010.
4.15 Regarding the admissibility of the present communication, the State party submits
that the author’s claim falls outside the scope of the application of article 26 of the
Covenant and that the communication should therefore be declared inadmissible under
article 2 of the Optional Protocol. While the Covenant does not contain any provision
guaranteeing a right to nationality, article 26 does apply to the enforcement of statutes on
nationality since it guarantees equality before the law and prohibits discrimination. Thus,
public administrative authorities and the judicial system are under an obligation to ensure
that all statutes are administered and enforced in a way that is not arbitrary or
discriminatory. However, as indicated above, the granting of nationality through
naturalization is a legislative process, according to section 44, paragraph 1, of the
Constitution, not an administrative one. The Circular Letter containing the Guidelines on
Naturalization regulates the role performed by the Ministry in its capacity as the body
preparing the meetings of the Naturalization Committee, but does not confer any rights or
obligations on the citizens. Applicants thus have no legal claim to Danish nationality, nor
any claim to exemption from the requirement of proof of Danish language skills. The
author has not, by definition, been deprived of his right to equality before the law or equal
protection of the law. The granting of Danish nationality is the exclusive prerogative of the
legislature and article 26 does not apply to such a constitutional system. In this respect, the
present communication is distinguishable from communication No. 1136/2002,
Borzov v.
Estonia,
which was declared admissible by the Committee. In contrast to the Danish
procedure for obtaining nationality by Act of Parliament, nationality in Estonia was granted
on the basis of a citizenship statute in the form of a general legislative act with specific
criteria and subject to legal scrutiny.
4.16 Concerning the merits of the communication, the State party submits that, should the
Committee find the communication to be admissible, there is no violation of article 26.
International law does not give rise to any free-standing obligation of States to grant
nationality to persons permanently residing in their territory. Rather, States are entitled
under international law to determine those persons upon whom the States will, by means of
naturalization, confer their nationality and, in that regard, to define the requirements for
obtaining nationality.
4.17 The Danish procedure for granting nationality by Act of Parliament has been firmly
established in constitutional practice since the adoption of the Constitution in 1849.
Furthermore, in its Decision No. V 36 of 15 January 1998, Parliament instructed the
Ministry to comply with international conventions and to ensure that the rules of the Public
Administration Act and other principles of public administration were observed when
naturalization bills were prepared.
4.18 The State enjoys a wide margin of discretion when laying down such requirements
for nationality as it considers necessary to ensure a genuine link between the State and
individuals applying for nationality. Danish language skills and knowledge of Danish
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society, culture and history are considered crucial for integration into Danish society and
therefore must be considered as legitimate requirements. For the same reason, exemption is
granted only in exceptional cases. Furthermore, the requirements must generally be
considered proportionate.
4.19 The State party contests the claim that the author has been deprived of equality
before the law or has been subject to discrimination in relation to the equal protection of the
law. The author has not presented any evidence indicating that other persons in a similar
situation have been treated more favourably than him. His application for nationality was
dealt with in the same manner as all other applications from persons in a situation similar to
his. During the examination of his application, all available information was thoroughly
assessed. By providing all relevant information on his health, the author had full knowledge
of the documentation in his case and the basis of the assessment of his application.
4.20 The author has not substantiated his claim that the assessment by the Naturalization
Committee was arbitrary. Neither has he indicated the grounds on which the alleged
discrimination took place. He bases his allegation of discrimination on the sole fact that the
Naturalization Committee did not have the same view on the possibility of granting
exemption to the author as the author himself.
4.21 The State party is aware that traumatized refugees may be in need of special
assistance to complete their Danish language training. In such cases, the teaching methods
are especially designed for this group of applicants. The Ministry has implemented a
number of initiatives with the aim of strengthening the participation of traumatized refugees
in Danish language training.
Author’s comments on the State party’s observations
5.1
The author submitted comments on the State party’s observations on 11 July 2011.
The author holds that no State may derogate from its international law obligations on the
basis of its domestic law, nor upon the basis that the acts in question are those of the
legislature or the executive. By ratifying the Covenant and other human rights instruments,
the State party undertook an obligation to ensure persons under its jurisdiction equality
before the law pursuant to, inter alia, article 26. As no specific reservation has been made in
this respect, no internal provision can be invoked to exonerate the State party from such
obligation. Thus, the State party cannot rely on the argument that the Guidelines in Circular
Letter No. 61 are not administrative guidelines in the traditional meaning of this term, but
rather a set of principles agreed to by the majority in Parliament in order to guide its
legislative work. Article 26 is an international standard that applies also to the
constitutional system.
5.2
In 2011, the issue of naturalization garnered much attention in the Danish media in
connection with unlawful administrative practices of the Ministry in cases of naturalization
of stateless persons. In that context, legal experts raised serious concern in connection with
other aspects of the naturalization procedure in general. For instance, they expressed doubts
as to the compatibility with the Convention on the Rights of Persons with Disabilities of the
clause in Circular Letter No. 61 excluding persons suffering from post-traumatic stress
disorder from exemption from the language requirement. The media also referred to
statements made by some members of the Naturalization Committee that basic principles of
the rule of law are disregarded in decisions concerning exemptions from the language
requirement.
5.3
The author rejects the State party’s argument that his claim falls outside the scope of
article 26 of the Covenant. He recalls the Committee’s jurisprudence that the principle of
non-discrimination contained in article 26 is not limited to the rights provided for in the
Covenant and that the principle applies to both the adoption of legislation and its
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application. Furthermore, the decision-making in cases of naturalization falls within the
field regulated and protected by public authorities, even though the authority issuing the
rules and the authority applying them are one and the same. It would be strange if a State
could elude its treaty obligations regarding the rule of law in respect of such fundamental
principles as equal protection and non-discrimination by referring unlawful decisions to a
field where such legal guarantees do not apply according to domestic law. If the State
party’s argument in this respect was to be accepted, it would imply a carte blanche for
States to circumvent any international standard by giving the competence in question,
within the domestic constitutional system, to an authority that is not traditionally concerned
with decision-making. The author therefore concludes that the Danish naturalization
procedure falls within the scope of article 26.
5.4
Concerning the merits of the case, the author states that he is not claiming the
existence of a free-standing right to nationality through naturalization. He acknowledges
the sovereign prerogative of the State to decide on the requirements to grant nationality and
does not dispute the substance of the requirements set forth in Circular Letter No. 61.
Neither does he contest that the decision to place particular emphasis on, among others, the
Danish language is within the State’s margin of appreciation, or that it is disproportionate to
grant exemption only in exceptional cases. His claim concerns solely whether the
requirement has been applied in an arbitrary or discriminatory manner.
5.5
The author has established a prima facie case through a number of strong, clear and
concordant inferences and unrebutted presumptions of the fact that the rejection of his
application was arbitrary and discriminatory, namely that the disregard of the medical
evidence submitted by him was in direct conflict with the wording of Circular Letter No. 61
and that the members of the Naturalization Committee are unqualified to adjudicate and do
so in an arbitrary and, in the circumstances, discriminatory manner.
5.6
It cannot be expected of the petitioner that he advert to another applicant who suffers
from the same illness as he does and who has been granted exemption. For the purposes of
establishing a prima facie case of discrimination, it should suffice that the relevant
authorities have acted
contra legem
in the processing of the application. If the State party
wishes to plead that no applicant for nationality through naturalization has ever been
exempt from the language requirement for reasons of conditions such as the author’s or any
other listed as a ground for exemption in Circular Letter No. 61, it is incumbent upon the
State party to demonstrate that it is the case. As opposed to the State party, the author does
not have access to that information.
5.7
Regarding the State party’s argument that the author has not indicated the grounds
on which the alleged discrimination has taken place, the author argues that a person who
has been treated unfavourably in a process that is arbitrary has been deprived of equal
protection of the law irrespective of any suspect ground. The Danish naturalization
procedure is of such a capricious nature that the petitioner does not need to adduce any
specific ground on which the random rejection of his application has been based.
Furthermore, the denial of equal protection of the law has been based on grounds such as
race, colour, language, religion, national or social origin and/or status as a refugee and a
victim of torture. These suspect grounds have been recognizable factors in the
Naturalization Committee’s assessment of the author’s application for exemption. In fact,
besides the medical assessments confirming his suffering from an illness listed in Circular
Letter No. 61 and warranting exemption, the Committee’s only basis for the rejection has
been information about the author’s country of origin and other such information. This
gives rise to a very strong inference that the unwarranted rejection was based on racial,
ethnic or similar considerations.
5.8
Finally, the author states that section 44, paragraph 1, of the Constitution does not
impose any limitation regarding the preparation of bills of naturalization. The provision
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contains merely a competency rule. It does not constitute a hindrance to the observance of
basic principles of the rule of law in the preparation of the bills.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Human Rights
Committee must decide, in accordance with rule 93 of its rules of procedure, whether the
communication is admissible under the Optional Protocol to the Covenant.
6.2
As required under article 5 (2) (a) and (b) of the Optional Protocol, the Committee
has ascertained that the same matter is not being examined under another procedure of
international investigation or settlement, and that it is uncontested that domestic remedies
have been exhausted.
6.3
The Committee notes the State party’s challenge to the admissibility of the
communication on the basis that the author’s claims of discrimination related to his
naturalization procedure do not fall under the scope of article 26 of the Covenant, as
naturalization is granted by Act of Parliament, to which article 26 does not apply. The
Committee recalls, however, that article 26 provides for equality before the law and equal
protection of the law without any discrimination; that this provision concerns the
obligations imposed on States parties in regard to their legislation and the application
thereof;
3
and that it prohibits discrimination in any field regulated and protected by public
authorities.
4
In this connection, the Committee recalls that all branches of government
(executive, legislative and judicial) at whatever level — national, regional or local — are in
a position to engage the responsibility of the State party.
5
Furthermore, the Committee
notes that the author’s claim that the rejection by the State authorities to grant him an
exemption from the language requirement for his severe chronic mental disorder was
discriminatory has been sufficiently substantiated for the purposes of admissibility.
Accordingly, the Committee considers that the communication is admissible under
articles 2 and 3 of the Optional Protocol.
6.4
As all admissibility requirements have been met, the Committee declares the
communication admissible and proceeds to its examination on the merits.
Consideration of the merits
7.1
The Committee has considered the present communication in the light of all the
information made available to it by the parties, as required under article 5 (1) of the
Optional Protocol.
7.2
The issue before the Committee is whether, by refusing to grant the author an
exemption from the language requirement in order to become naturalized, the State party
violated article 26 of the Covenant. The Committee notes that the author does not challenge
the language requirements for naturalization in general but only that the requirement has
been applied to him in an arbitrary or discriminatory manner. The Committee recalls that
article 26 provides an autonomous right prohibiting discrimination in law or in fact in any
field regulated and protected by public authorities and that the application of the principle
of non-discrimination contained in article 26 is not limited to those rights which are
3
4
5
See general comment No. 18 (1994) on non-discrimination, paras. 1 and 12.
Ibid., para. 12.
See general comment No. 31 (2004) on the nature of the general legal obligation imposed on States
parties to the Covenant, para. 4.
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provided for in the Covenant.
6
When legislation is adopted by a State party, it must comply
with the requirement of article 26 that its content should not be discriminatory.
7
In the
context of the present communication, this means that the Committee must examine
whether the consideration of the author’s application for an exception was carried out by
the competent Danish authorities in a manner that guaranteed the author’s right to equality
before the law and equal protection of the law without any discrimination.
7.3
The Committee recalls that neither the Covenant nor international law in general
spells out specific criteria for the granting of citizenship through naturalization and that
States are free to decide on such criteria.
8
However, when adopting and implementing
legislation, States parties’ authorities must respect the applicants’ rights enshrined in
article 26. The Committee recalls in this respect that article 26 requires reasonable and
objective justification and a legitimate aim for distinctions that relate to an individual’s
characteristics enumerated in article 26,
9
including “other status” such as disability.
7.4
The Committee notes the author’s claim that the failure to treat him as a person with
mental and learning disabilities and thus acknowledge the need to grant him the exemption
contained in the law is a discriminatory measure. The Committee notes that the author
applied to be exempted from the requirement of submitting proof of skills in the Danish
language on the basis of section 24, paragraph 3, of the Guidelines on Naturalization. His
application was accompanied by medical reports indicating that, at that time, he suffered
from severe psychosis with aural hallucinations and paranoid delusions, organic brain
damage, moderate to severe depressive periods, post-traumatic stress disorder involving
personality changes, and various physical disorders in the form of pain in both knees,
respiratory problems, curvature of the spine and congenital hemiparesis. The application
and accompanying documentation, after the initial refusal on 5 October 2007, was
submitted by the Ministry to the Naturalization Committee of the Danish Parliament, which
rejected it on 22 May 2008. However, the Committee notes that the letter of the Ministry
informing the author about the Naturalization Committee’s decision does not contain any
indication regarding the substantive grounds for the refusal. Subsequent letters from the
Ministry responding to the author’s requests for reconsideration equally lacked justification
for denying the exemption contemplated in the Guidelines.
7.5
The Committee considers that the State party has failed to demonstrate that the
refusal to grant the exemption was based on reasonable and objective grounds. The
Ministry was unable to give details about the reasons for the Naturalization Committee’s
decision to deny the author’s request since the Committee proceedings were confidential.
According to the State party’s own submission, the exemption provision was open to
interpretation and practice was laid down by the majority of the Naturalization Committee
at any time. Furthermore, the lack of motivation for the decision and transparency of the
procedure makes it very difficult for the author to submit further documentation in order to
support his request, as he does not know the real reasons for the refusal and the general
trends regarding decisions of the Naturalization Committee in applying section 24,
paragraph 3, of the Guidelines. The Committee considers that the fact that the
Naturalization Committee is part of the legislature does not exempt the State party from
taking measures so that the author is informed, even if in brief form, of the substantive
grounds of the Naturalization Committee’s decision. In the absence of such justification the
State party has failed to demonstrate that its decision not to accept the author’s mental
disability as a basis for a language exception provided for in the law and to require from
6
7
8
9
See general comment No. 18, para. 12.
See communication No. 172/1984,
Broeks v. Netherlands,
Views adopted on 9 April 1987, para. 12.4.
See communication No. 1136/2002,
Borzov v. Estonia,
Views adopted on 26 July 2004, para. 7.4
See general comment No. 18, para. 13, and
Borzov v. Estonia,
para. 7.3.
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him language proficiency despite his learning disabilities was based on reasonable and
objective grounds. The Committee therefore concludes that the facts before it reveal a
violation of the author’s right to equality before the law and equal protection of the law
under article 26 of the Covenant.
8.
The Committee, acting under article 5 (4) of the Optional Protocol to the
International Covenant on Civil and Political Rights, is of the view that the information
before it discloses a violation of article 26 the Covenant.
9.
In accordance with article 2 (3) (a) of the Covenant, the State party is under an
obligation to provide the author with effective remedy, including compensation and a
reconsideration of his request for exemption of the language skills requirement through a
procedure that takes into consideration the Committee’s findings. The State party is also
under an obligation to avoid similar violations in the future.
10.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether or not there has
been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory or subject to its
jurisdiction the rights recognized in the Covenant, the Committee wishes to receive from
the State party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State party is also requested to publish the present Views and to
have them translated in the official language of the State party and widely distributed.
13