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)