Ghoumid v. France: the French Law on Deprivation of Nationality is not Contrary to Human Rights

On June 25, 2020, the European Court of Human Rights (ECHR) published a decision on the loss of nationality resulting from convictions for acts of terrorism. It considered that France had violated neither article 8 of the Convention protecting the right to private and family life, nor article 4 of protocol n° 7 prohibiting double punishment. This judgment confirms the position of the ECLJ in its report published in May 2020.

Reviewing the facts

Five dual citizens, four French-Moroccans and one French-Turkish, were sentenced to prison terms of between six and eight years, each with a security period of 48 to 64 months, by the French criminal courts in 2007 for participation in a criminal association in a terrorist context. Specifically, they had provided financial and logistical support for ten years to the Moroccan Islamist Combatant Group (GICM), which is affiliated with al-Qaeda and linked to the attacks in Casablanca, Morocco, in 2003.

These applicants were subsequently released from prison between 2009 and 2010. They were deprived of their French nationality in October 2015 by decree of the Prime Minister in accordance with the French procedure governing the deprivation of nationality. After having exhausted the remedies in France, they appealed to the ECHR.

According to the applicants, the deprivation of their French nationality violated article 8 of the Convention and constituted a double penalty prohibited by article 4 of Protocol No. 7, as the applicants had already been convicted of these terrorist acts.

On these two alleged grounds of violation, the Court rejected the applicants' claims. It is appropriate to consider them in turn. 

Regarding deprivation of nationality and article 8 of the ECHR, private life section (§ 30 to 52)

As a reminder, article 8 of the European Convention on Human Rights states in its first point that "Everyone has the right to respect for his private and family life, his home and his correspondence”.

The Court first rejected the complaint concerning the family life of the interested parties, considering that these measures had not had any impact on this aspect.

The Court then recalled, in accordance with its established jurisprudence, that there was no right to nationality as such protected by the Convention, but that a measure of withdrawal of nationality such as a deprivation of nationality could be arbitrary and could have consequences on the private life of the person concerned[1].

About the first point, the Court set out precise criteria for determining whether or not the measure is arbitrary, namely its legality, the existence of procedural guarantees and whether or not the authorities acted promptly and expeditiously.

In the present case, the Court found that the administrative authorities did not initiate proceedings for deprivation of nationality following the conviction of the persons concerned but waited for more than ten years after the facts. However, the court takes into account the context of the year 2015, during which France experienced a series of terror attacks, to consider that this lapse of time does not allow for the characterization of arbitrariness.

It even clearly recognizes the political nature of nationality:

“(the Court) was, however, able to accept that, faced with events of that kind, a State might re-assess, with greater stringency, whether individuals who had been convicted of a criminal offence constituting an act of terrorism […] and that it might therefore, subject to a strict proportionality test, decide to take measures against them which it had not initially chosen” (§45). (free translation)

The Court then considered that the disqualification measure was legal, as it was provided for by the Civil Code.

With regard to procedural guarantees, the Court observed that the French authorities had, in accordance with French law,[2] informed the persons concerned of their intention to deprive them of their French nationalities and had specified the legal grounds for doing so. The latter were then given a period of one month to make their observations. The Council of State was then asked for its opinion, as the loss of nationality could only be pronounced upon its assent. The decrees were then issued with reasons in fact and in law. The persons concerned were able to appeal against the decrees, both in summary proceedings and on the merits before the Council of State.

Consequently, in light of these different criteria, the Court concluded that these measures of deprivation of nationality were not arbitrary.

About the second point, namely the consequences of such measures on the private life of the persons concerned. The Court noted that since their deprivations, their ability to remain in France has been weakened. Thus, two of the persons concerned were notified of an opinion in favor of their expulsion without a decision to expel them being pronounced. The European court concluded that "since no deportation order was forthcoming, the consequence of the deprivation of nationality for their private life had been the loss of an element of their identity.”

Although the Court made this observation, it then qualified it considerably by taking up the arguments of the French State: “As it had repeatedly emphasized in previous cases, terrorist violence in itself constituted a serious threat to human rights.”

“The Court also noted that some of the applicants had just acquired French nationality when they committed the offence in question and that the others had acquired it during the period of the offence.”

This clearly reveals that their attachment to France and its values had little or no incidence on the construction of their personal identity. It should also be recalled that their participation in the criminal association lasted ten consecutive years. In addition, the applicants all had another nationality.

The Court concludes that the measure of deprivation of nationality of the applicants did not violate article 8 of the Convention.

What can we learn from the Court's reasoning? It seems that in this decision the Court fully took into consideration the political nature of nationality, a sovereign prerogative of the State. It makes an in concreto assessment of the situation, by comparing the law with the reality of the facts. Its approach seems relevant. 

Regarding deprivation of nationality and the prohibition of double penalty for the same offence (Article 4 of Protocol No. 7) (§ 53 to 74)

According to this article in its point 1, “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

According to the applicants, the loss of nationality was in fact a "disguised" penalty aimed at punishing the same conduct for which they had been convicted in 2007 by the Paris Criminal Court.

The Court then recalled that for this provision to be applicable, the applicant must have been prosecuted or "punished in criminal proceedings" for an offence for which they had already been finally acquitted or convicted. While it is certain that the applicants were indeed the subject of a first criminal conviction, the question that arises in this case is whether the loss of nationality can constitute a criminal penalty.

To answer this question, it is worth going back to A and B v. Norway 2016 judgment[3] which clarified that in order to determine whether a proceeding is criminal, the so-called "Engel" criteria - named after a 1976 ECHR judgment - relating to the concept of accusation in criminal matters must be applied.[4]

With regard to the first Engel criterion - i.e. the legal qualification of the disputed measure in national law - this measure is codified in the French Civil Code, in the section relating to nationality. It falls under the jurisdiction of the administrative courts and in particular the Council of State. It is therefore an administrative sanction under French law.

With regard to the second Engel criterion - namely the nature of the measure - it is necessary to return to its purpose. In this case, it is a matter of drawing the consequences of the fact that a person who has acquired a nationality has, by his particularly serious behaviour, broken the bond of loyalty to that State. This measure therefore tends above all to take note of this rupture between the applicants and France.

With regard to the third Engel criterion - namely its degree of severity - the sanction is proportionate to the degree of the offences to which they were convicted, namely acts of terrorism. As the Court states: “going beyond its punitive connotation, the deprivation of nationality under Article 25 of the Civil Code pursued a specific objective, as it sought to reflect the fact that an individual who had been granted French nationality had subsequently broken the bond of loyalty to France by committing a particularly serious offence, and in the case of terrorism undermining the very foundation of democracy (§ 73).” (free translation)

It is clear from these various criteria that the measure of deprivation of nationality cannot be regarded as a criminal sanction that punishes the applicants a second time for the same terrorist offences. Consequently, the Court declared this part of the application inadmissible as incompatible rationae materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 a) and 4.

What can we learn from the Court's reasoning? The Court recalls the administrative nature of deprivation of nationality, which cannot therefore be considered as a double penalty. It ruled out any criminal characterization of deprivation of nationality. 

Some remarks on the position adopted by the ECHR

In this judgment, the Court balanced the rights of persons convicted of terrorist acts against the measures of deprivation of nationality taken by France in response to these acts. In this case, the Court rightly considered that the terrorist threat and the behaviour of the persons concerned were so serious with regard to the mere loss of a component of their identity - if French nationality can be considered to have been part of their identity at all - that it can only reject their request.

Moreover, with this decision, the Court differed from the position adopted by the Parliamentary Assembly of the Council of Europe (PACE) in a January 2019 report.[5] Indeed, according to the latter, the deprivation of nationality would in fact be a "disguised punishment".

The Court, in carrying out an assessment in concreto with the above-mentioned Engel criteria, found that deprivation of nationality cannot be likened to a disguised criminal penalty, but that by its very nature and objective, namely, to take note of the rupture of the bond of loyalty between the individual and the State, it is an administrative sanction.

In short, the Court recognized the eminently political character of nationality as well as of its deprivation. Here, "political" refers to what is related to the organization of the State's power, to its exercise. This reminder by the Court is positive and will serve as a precedent for future decisions on the deprivation and withdrawal of nationality. It seems that with this decision the Court took fully into consideration the very definition of nationality as proposed by the ICJ in 1955, according to which it is a "legal bond having at its basis a social fact of attachment, a genuine connection of existence, sentiments and interests together with the existence of reciprocal rights and duties."[6]

Furthermore, in this judgment the Court does not follow another position of the PACE, according to which "any deprivation of nationality on account of terrorist activities must be decided and examined by a criminal court".[7] In fact, according to the PACE, if the criminal court had this jurisdiction, the deprivation of nationality would not be arbitrary, because of the procedural guarantees that would surround the procedure.

However, as a reminder, the role of the criminal judge is to impose penalties for behaviours that are covered by the law. It is not the judge's role to decide whether the individual has broken their bond with the State. The fact that French law requires a conviction by a criminal judge before the government issues a decree of deprivation of nationality is a safeguard against arbitrariness. Indeed, given the independence between the judiciary and the government, a criminal conviction for acts of terrorism is not likely to be ordered to strip individuals of their French nationality. The existence of two different authorities is a real guarantee against arbitrariness and prevents the deprivation of nationality from being qualified as a criminal sentence not pronounced by the criminal judge.

In this case, the Court did not ask whether the criminal court would be more competent to pronounce a deprivation of nationality. It carried out a concrete review of the situation and found that the government could take such a measure, which was accompanied by genuine procedural guarantees.

This decision of the Court recognizing the political nature of nationality is therefore correct in the light of the situation that was submitted to it. However, in the present case, the loss of nationality has had very little effective impact on the lives of the applicants, who still live in France with their families and remain a threat to the French population.

It would therefore have been interesting to see what the Court's reasoning would have been if the deprivation of nationality had resulted in the effective expulsion of the persons concerned from France. Would it have ruled, as it did in K2 v. the United Kingdom,[8] that this deportation, or expulsion from France, did not violate their right to respect for private and family life, given the extent of their activities in connection with terrorism and the fact that they had another nationality? In view of the case, this is likely. France could therefore have proceeded with the expulsion of the applicants without fear of being condemned by the ECHR.

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[1] ECHR, Karassev and Family v. Finland, No. 3141/96, January 12, 1999, ECR, 1999, II, p. 421 and regarding deprivation of nationality in a terrorism context: ECHR, K2 v. United Kingdom, No. 42387/13, February 7, 2017.

[2] Article 61 of Decree No. 93-1362 of December 30, 1993.

[3] ECHR, A and B v. Norway, [GC], no. 24130/11 and 29758/11, 15 November 2016.

[4] ECHR, Engel and others v. The Netherlands, 8 June 1976, §82.

[5] PACE, “Withdrawing nationality as a measure to combat terrorism: a human rights-compatible approach?” report, doc 14790, 07 Jan. 2019, § 36 and 47: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=25241

[6] ICJ, 6 April 1955, Nottebohm, Recueil 1955. For developments concerning this judgment, see S. BASTID, "L'affaire Nottebohm devant la Cour internationale de Justice", Rev. crit. DIP 1956, p. 607 et seq.

[7] PACE, supra, doc. 14790, §7, §52.

[8] ECHR, K2 v. the United Kingdom, op. cit., §65 and 66.