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the Government.7 The appellants had argued ECHR Art. 8 in conjunction with art. 14 and one question was whether this prohibition was supplemented by other human rights prohibitions of discrimination of a broader scope. The Crown Counsel rejected ICERD as not incorporated and no comments on this were offered by the courts. Also ICCPR Art. 26 was mentioned, but attention centred on the European Convention on Nationality [ECN, 1997, E.T.S. No. 166], which did not encounter any argument on not being directly applicable as a non-incorporated Convention. The dividing line in the case was the requirement of equal treatment of nationals in Art. 5.2 of the ECN no matter “whether they are nationals by birth or have acquired its nationality subsequently”. The majority of the Supreme Court (p. 1060) joined the High Court (at 1052) in finding a narrow (and non-binding) scope of the rule which did not give any better protection than that flowing from ECHR Art. 14. The minority of 3 judges, however, found (at 1061f) that art. 5.2 after its wording as a starting point entails a general rule that differentiation between different groups of own citizens is prohibited, and that the 28 year rule could not be reasonable justified. [In the factual part of the judgment the concern of European Commissioner of Human Rights, Gil-Robles, upon his visit to Denmark in 2004 was noted to the effect that the rule in question did not guarantee the principle of equality before the law”.8 For the present purposes on commentary DACoRD draws attention to the traditional Danish rules of interpretation that Danish law should be applied in harmony with Denmark’s international obligations. Even if doubts could be raised as to the binding effect of art. 5.2 of ECN then the legal binding quality of art. 26 of ICCPR, requiring equal treatment and protection before and in the law is binding on Denmark. However, this legal obligation was not discussed neither by the High Court nor the Supreme Court. (For further comments on the substance, see below under Article. 5 (d) (iv) on family reunion)


One derived effect of the above discrepancy between incorporated and non-incorporated human rights treaties and their domestic application is that it is difficult for a victim of a violation to obtain an effective remedy in two ways. First, because it is difficult to vindicate your right before the authorities, and secondly because it is difficult to gain access to a remedy. One general principle of the Danish rules on free legal aid before the courts is that the applicant must have a reasonable prospect of winning the case. That decision is made inter alia based on the practice of the courts. In this light one may understand that judicial tests of non-incorporated human rights conventions are relatively rare and that exhaustion of local remedies meets with extreme difficulties.

Effective implementation of the Convention and of remedies against violations


In its 2006 Concluding observations, para. 11, the Committee recommended the State Party to take resolute action to counter any tendency to target, stigmatize, stereotype or profile people on the basis race, colour, decent, and national or ethnic origin, especially by politicians. In her additional report, CERD/C/DEN/CO/17/.Add.1, para. 3f, the Government took note of the concerns but explained the reluctance of the of the police and the prosecuting authorities to effectively investigate and prosecute acts falling under Section 266b of the Danish Criminal Code by a reference to Art. 10 of the European Convention for the Protection of Human Rights

7 Supreme Court judgment of 13 Jan. 2010 upholding the High Court Eastern Division judgement of 25 September 2007, reported in U.2010.1035H.  For a critical commentary, see senior researcher Eva Ersbøll, Institute for Human Rights, “Det lige statsborgerskab” (On Equal Citizenship) in Juristen No. 4, 2010, pp. 121-127.

8 COE doc., Office of the Commissioner for human Rights, CommDH (2004)12, original version, para. 10, p. 7.

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