In February and March 2020, the ECLJ was authorized by the European Court of Human Rights (ECHR) to intervene in two cases of jihadist’s expulsion: Adam Johansen (29), from Denmark to Tunisia, and Isam Al-Bayati (42), from Germany to Iraq.
Read our observations in the case of Johansen v. Denmark (No. 27801/19)
Read our observations in the case of Al-Bayati v. Germany (No. 12538/19)
Mr. Johansen has had dual Danish and Tunisian nationality since birth. After acquiring military equipment, he left for Syria in 2013 to be recruited as a “soldier” by ISIS. He returned to Denmark in 2014, was arrested in 2016, and sentenced to prison in 2017. The judges of the Danish Supreme Court unanimously decided in 2018 to withdraw his Danish nationality and to expel him with a permanent ban on his return to Denmark. To date, Adam Johansen has therefore no longer had Danish nationality since this judgment and is completing his prison sentence in Denmark in March 2020.
Mr. Al-Bayati, an Iraqi citizen, has been convicted on several charges related to terrorist activities: fundraising, money transfers to Iraq, possession of a weapon, and possession of audiotapes calling for armed jihad. His last criminal conviction dates from 2006 and the deportation order from 2009. He then brought his case before an administrative court, leading to several years of litigation. His final appeal, before the Federal Constitutional Court in Karlsruhe, was declared inadmissible in 2018. To date, 14 years after his conviction, Isam Al-Bayati has still not been deported to Iraq and is still living in Germany.
Both jihadists are married and have children. They have invoked their right to private and family life, protected by Article 8 of the European Convention on Human Rights, to reverse the decisions taken against them. The written observations submitted to the Court by the ECLJ reflect on the interaction of this right with the withdrawal of nationality and the expulsion of criminals.
The ECLJ recalled several principles relating to nationality, in the case of Mr. Johansen, and to private and family life, in both cases. These cases were also an opportunity to suggest the Court to supplement its criteria with these guidelines for assessing such cases to take better account of the needs of societies.
Nationality is not a “right” but the translation of a personal link to a State
Nationality is neither a “right” nor a duty for those who wish to acquire or retain it. It is the translation into law of reality: the personal link between a person and a State. By virtue of this very definition, the State is, therefore, sovereign to determine by its legislation who its nationals are (European Convention on Nationality, 1997, Art. 3 § 1). By their acts, Daech terrorists with European nationality themselves break this personal link or demonstrate the non-existence or disappearance of such a link. Consequently, in their case, “the deprivation of nationality merely translates into law a factual and material reality: that of a person who is a foreigner with his whole being” (Bertrand Pauvert, interview for the ECLJ).
Applications related to loss of nationality have long been considered incompatible with the European Convention because it does not guarantee a right to nationality. The ECHR now considers that an arbitrary deprivation of nationality may, in certain circumstances, violate Article 8 of the Convention because of its impact on the private and/or family life of the person concerned.
However, in all the cases hitherto decided by the Court, the applicants had been naturalized; they were therefore not nationals by birth. Adam Johansen argues that the privilege should be granted to him as a Dane by birth and as the son of a Danish mother. He thus wishes to distinguish himself from the naturalized and foreign-born nationals whose applications were rejected by the Court.
The ECLJ wished to point out that, unlike other States such as France, Denmark has ratified the European Convention on Nationality, which states that “Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.” (Art. 5 § 2). It must therefore not discriminate against its nationals depending on the acquisition of nationality. The ECHR also condemned Denmark in the Biao v. Denmark [GC] judgment of 2016 for favoring Danish nationals of Danish ethnic origin in its rules on family reunification (Article 14 combined with Article 8). Mr. Johansen cannot, therefore, enjoy the privilege over naturalized Dane.
The right to private and family life is individual and does not take precedence over common good (N.B.: meaning general interest)
Article 8 of the European Convention cannot be interpreted as enshrining a right to live in a specific place. The same applies to the right to freedom of movement, which is exercised in the context of lawful residence in a State and only within that State or in order to leave it (Article 2 §§ 1 and 2 of Protocol No. 4).
The right enshrined in Article 8 is individual, even if it may be exercised collectively (with others). The Al-Bayati and Johansen families are each composed of several members, each having an individual right to respect for family life. Therefore, it is for each of the applicants’ wives to determine their own interests and to exercise their right to respect for family life. However, unlike in other comparable cases, those women are not formally applicants. For this reason, it is not possible to prejudge their interests and those of their children.
The possibility for a State to expel foreign terrorists, such as Isam Al-Bayati and Adam Johansen (since 2018), pursues several legitimate objectives to interfere with the right to respect for private and family life (Article 8 § 2). For example, such expulsions aim at protecting national security against massive and murderous violence, to prevent further criminal offences of the same kind, and to defend the rights of potential victims, in particular their right to life.
Protecting the population against terrorist threats is also a positive obligation of States, through which they fulfill their fundamental functions and preserve common goods such as public order, national harmony, and the civil and civic spirit.
Ten criteria are used to determine whether an expulsion is proportionate
In order to determine whether an expulsion order is proportionate to the legitimate objectives set out in the European Convention (Article 8 § 2), the Court developed criteria as early as 1988 (Berrehab v. the Netherlands): eight “guiding principles” were formalized in 2001 (Boultif v. Switzerland) and two more in 2006 (Üner v. the Netherlands [GC]).
The eight Boultif criteria correspond to various factual elements to be balanced, such as legal qualifications, duration, legal affiliations, or statutes. Among these, as noted by former judges Jean-Paul Costa, Boštjan Zupančič and Rıza Türmen, the Court is “lending added weight” to the nature and gravity of the crime. It thus is using “a method which gives priority to one criterion, relating to the offence, and treats the others as secondary or marginal.” This weighting allows, when seeking proportionality, to give primary weight to national security, as a common good, and to minimize the criteria relating to individual situations.
The addition of the two Üner criteria by the Court aims for a better understanding of the complexity of the Islamism issue. By way of illustration, the Court is no longer content to determine the length of stay of the person concerned in the country from which he or she is to be expelled (Boultif criterion), but also assesses the strength of social, cultural and family ties with that country (Üner criterion). In fact, the years spent by foreigners or binational in Europe are not a sufficient guarantee to demonstrate real links with their country of residence. Sometimes, on the contrary, their stay in Europe has enabled them to develop an Islamic community that is almost autonomous from society. It is in such communities that Mr. Al-Bayati and Mr. Johansen lived, respectively, in Germany and Denmark.
The ECLJ, in its Written observations, applied the Court’s ten “guiding principles” one by one to the two cases. This allowed for a clear understanding of both the individual situation of the applicants and their families and the danger they pose to security. These ten criteria are sufficient to suggest that the expulsions of Mr. Al-Bayati and Mr. Johansen strike the right balance between the legitimate aims pursued by the authorities and the requirements of respect for their private and family life.
New “guiding principles” focused on society could be defined
Having said that, why limit ourselves to these ten criteria when realities are changing? After eighteen years (1988 - 2006) of evolution, the Court has maintained these same criteria for fourteen years. It could take the opportunity of the Al-Bayati and Johansen cases to reopen the evolution of the “guiding principles” in the light of new realities.
In particular, it would be interesting to take into account not only the capacity of an alien threatened with expulsion to integrate but also the capacity of society to integrate him or her. Indeed, between a foreigner and a society, the will to integrate must be mutual, like a bilateral contract. While assessing the willingness of a foreigner threatened with expulsion to honor this contract, it is important for the Court to assess the willingness of society to honor it.
To this end, the ECLJ suggested two new criteria to the Court:
Let us take the case of Isam Al-Bayati as an example. This criterion makes it possible to integrate several realities of the German context: at the national level, there is a growing challenge for Muslim immigration, particularly following Islamist attacks since 2016; at the local level, the Land of North Rhine-Westphalia in which Mr. Al-Bayati lives has been marked by mass attacks and rapes in the New Year 2016 committed by at least 1,500 non-European immigrants. In this context of reluctance to accept immigration, the applicant’s social and cultural integration would be difficult.
Let us continue with the same case. One-third of the Muslims living in Germany are in North Rhine-Westphalia, which allows the most radical currents of Islam to develop there. Despite the will of the authorities, sixteen Islamists had not yet been expelled from this Land by June 2018. Among them, a Salafist preacher resided in the same city as Mr. Al-Bayati (in Bochum): ‘Sami Ben Mohamed A.’, a former bodyguard presumably of Osama Bin Laden and close to the organizers of the attacks on the World Trade Center in 2001 and the Islamic State. These facts and all the controversy they have generated bear witness to the fact that the regional and local authorities currently seem powerless in the face of Islamist networks and that they will find it difficult to keep Mr. Al-Bayati away from them.
Society is at the heart of the interaction between Article 8 and security
The ECLJ concluded its intervention by recalling that the right to respect for private and family life is based, like other human rights, on human dignity. Through this right, man fulfills his nature, especially his natural aspiration to live in society. A terrorist, by his acts, does not fulfill this natural aspiration but, on the contrary, destroys society.
The right to respect for family life, national security, and the rights of society must thus be seen not as opposing but as complementary and interdependent.
N.B.: The Court’s decisions will certainly be handed down in several months’ time. Subscribe to our Newsletter at the bottom of this page to be kept informed of the outcome of these decisions and other ECLJ news.
 Ward v. United Kingdom (dec.), no 31888/03, 9 November 2004, § 2; Codona v. United Kingdom (dec.), no 485/05, 7 February 2006.
 Üner v. The Netherlands [GC], no 46410/99, 18 October 2006, Dissenting Opinion of Judges Costa, Zupančič et Türmen, § 16.