The applicant's naturalisation request was denied due to a criminal record, even though he has resided in Luxembourg for decades and is a stateless person. The Court rules that the principle of avoidance of statelessness does not prevent States from setting conditions on access to naturalisation even for stateless persons.
Article 15 UDHR
Article 8 ECHR
Article 4 of the European Convention on Nationality
Constitution of Luxembourg
The applicant, a stateless person, applied for Luxembourgish nationality on 16 November 2004. On 6 August 2010 the application was refused on the grounds that he had been convicted of homicide in 1993. Earlier in 1975 the applicant was already been offered Luxembourg nationality by naturalisation, but he failed to submit the declaration of acceptance within the 3 months deadline, which is required by law to complete the naturalisation process. The applicant appealed against the 2010 refusal.
The lower instance court declared the complaint admissible, but unfounded. It found that the conditions on acquisition of Luxembourgish nationality were not contrary to the Constitution or the ECN, the latter not yet having been ratified by Luxembourg. It also found that the ECHR rights of the applicant have not been violated, as the applicant failed to explain how exactly the refusal of access to nationality impacted his personal and family life. The applicant’s constitutional right to equality was not violated either, as his situation cannot be compared to that of a Luxembourg national in the issue of access to Luxembourg nationality.
The applicant argued that the refusal to grant him a nationality amounts to a violation of his human rights as protected by Article 11(1) of the Constitution, of which the right to a nationality is an integral part, as established in the ECHR. He also argued that his right to equality as enshrined in Article 10bis of the Constitution has been violated, since a Luxembourg national who has committed an equivalent criminal offence would not have been deprived of the Luxembourg nationality as a result. The refusal to grant him a nationality violates Article 8 ECHR, as well as Article 14. Moreover, customary international law establishes an obligation on states to avoid statelessness. The argued that the principle of the European Convention on Nationality that statelessness should be avoided should be applied, despite Luxembourg’s failure to ratify the Convention, since it was signed by Luxembourg already in 2008. The applicant also argued that his right to a nationality under Article 15 of the UDHR has been violated.
The authorities requested for the lower instance court’s decision to be confirmed.
The Court reasoned as follows:
“Regardless of the fact that the European Convention on Nationality has not yet been ratified by Luxembourg more than 3 years after signing it, this Convention has not yet entered into force, and [the applicant] cannot reply on it’s relevant provisions […]. Article 4 of this Convention does not in any case prevent a State from laying down conditions for the acquisition of its nationality. Indeed, the general obligation to avoid statelessness enshrined in Article 4 of the European Convention on Nationality cannot mean that any stateless person automatically obtains the nationality of a state by simply indicating that they fulfil the residence condition of the relevant legislation. More specifically, while Article 4(b) of the European Convention on Nationality sets out the principle that statelessness should be avoided, Article 6(4) of this Convention imposes on States merely an obligation to facilitate in its internal law the acquisition of its nationality for stateless persons who are legally and habitually resident in its territory. In this context, reference should be made to the Explanatory Report on the European Convention on Nationality, according to which “this right [to a nationality] can be seen as a positive formulation of the duty to avoid statelessness and is thus closely related to paragraph b of the same article. While there is a recognition that a right to a nationality exists, the right to any particular nationality is determined by the rules on nationality of each State Party, consistent with Article 3 of the Convention which provides that States shall determine who are their nationals” (see Explanatory Report, point 32) and “a State Party may, in addition, fix other justifiable conditions for naturalisation, in particular as regards integration” (see Explanatory Report, point 51).”
Based on the above, the Court concludes that the applicant cannot invoke the European Convention on Nationality to substantiate the unlawfulness of the authorities’ decision.
“Next, regarding the alleged violation of Article 10bis of the Constitution, the [lower instance court] rightly held that the implementation of the constitutional rule of equality presupposes that the categories of persons between whom alleged discrimination took place are in comparable legal situations with regard to the contested measure, and that specifically the situation of [the applicant] cannot be compared to that of a Luxembourg national by origin who cannot lose their Luxembourg nationality because of a judicial conviction.”
“The Court, just like [the lower instance court], cannot find a violation of applicant’s private and family life protected under Article 8 ECHR in the authorities’ refusal to grant him the nationality of Luxembourg. The statement concerning alleged difficulties in being able to freely cross borders, without any specification as to the difficulties this causes, is clearly not sufficient to substantiate a violation of Article 8 ECHR by Luxembourg.”
“Finally, concerning the new plea raised during the appeal process and based on the alleged violation of Article 15 UDHR, the [authorities] were right to point out that Luxembourg law, by setting certain conditions on obtaining Luxembourgish nationality relating in particular to the criminal record of the applicants, does not violate anyone’s right to obtain this nationality, and therefore does not violate the principle enshrined in Article 15 UDHR, according to which everyone has the right to a nationality.”
The Court rejected the appeal, leaving the applicant stateless.