Information Note on the Court’s case-law 241
June 2020
Ghoumid and Others v. France - 52273/16, 52285/16, 52290/16 et al.
Judgment 25.6.2020 [Section V]
Article 8
Article 8-1
Respect for family life
Respect for private life
Deprivation of nationality of respondent State on the basis of a conviction for a terrorism offence committed over ten years earlier: no violation
Article 4 of Protocol No. 7
Right not to be tried or punished twice
Deprivation of nationality of respondent State on the basis of old terrorism conviction: inadmissible
Facts – The applicants were formerly dual nationals. In 2007 (2008 for those who appealed) they were convicted of conspiring to commit a terrorist act and those convictions became final. After serving their sentences, they were released in 2009-2010. Following the serious terrorist attacks in France in 2015 the authorities decided to reinforce measures against individuals convicted of terrorism offences. In that context, in October 2015, the applicants were stripped of their French nationality by orders of the Prime Minister, approved by the Conseil d’État. Their urgent applications for the suspension of the measures and for their annulment on grounds of misuse of authority were rejected.
Law – Article 8
1. Family life – The applicants’ complaint under this head had already been declared inadmissible by a single judge, as there was no interference to be found. An order depriving a person of French nationality had no effect on that person’s presence in France. Moreover, the applicants, who had all applied for “private and family life” residence permits, had been issued with acknowledgments of their applications allowing them to remain in France. If it were ultimately decided to refuse them residence and to deport them, they could appeal against those specific measures in the Administrative Court.
2. Private life – The deprivation of nationality appeared neither arbitrary nor disproportionate in its consequences.
(a) Lack of arbitrariness: time-frame, lawfulness and procedural safeguards
(i) Diligence and promptness – Admittedly, the administrative authorities had only informed the applicants of their intention to strip them of their French nationality ten years after the offences of which they had been convicted, almost eight years after the first-instance judgment and almost seven years after the judgment on appeal (for the applicants concerned).
The Court took note of the Government’s explanation that this decision had been taken after such a length of time because of the situation in 2015, when France had been targeted by a series of major terrorist attacks.
Even though the applicants argued that this delay had given a political connotation to the measure against them, the Court could accept that, faced with events of that nature, a State might re-assess, with greater stringency, whether individuals who had been convicted of a criminal offence constituting an act of terrorism still maintained a bond of loyalty and solidarity with the State, and that it might therefore, subject to a strict proportionality test, decide to take measures against them which it had not initially chosen.
Accordingly, the time which had elapsed between the applicants’ convictions and the deprivation of their nationality was not sufficient in itself to render that measure arbitrary.
(ii) Lawfulness – At the time of the offences in question, domestic law had provided that deprivation of nationality could only be ordered within ten years from the commission of the acts on which the criminal conviction was based. The decisions depriving the applicants of French nationality had been taken in 2015, whereas the most recent acts had dated from 2004. However, in January 2006 the legislature had extended that time-limit to fifteen years and, in accordance with the case-law of the Conseil d’État, this extension had become applicable with immediate effect. The Court thus concluded that the measures taken against the applicants had been lawful (also noting that this approach of the Conseil d’État was compatible with the Court’s case-law under Article 7 of the Convention).
(iii) Procedural safeguards – In accordance with the domestic law, the authorities had given the applicants prior notice of their intention to deprive them of French nationality, explaining to them the legal and factual grounds on which that measure would be based. The applicants had then been given one month to submit observations in their defence. The matter had subsequently been referred to the Conseil d’État for an opinion, which had to give its approval for any deprivation of nationality. The orders depriving the applicants of their nationality had given factual and legal reasoning. The applicants had been given the opportunity to apply to the urgent applications judge for the suspension of the measure and to seek its annulment on grounds of misuse of authority. Having legal representation, they had been able to assert their Convention rights and had had the benefit of a proportionality review with a reasoned decision, after proceedings whose fully adversarial nature they had not contested.
(b) No disproportionate consequences – It was true that the applicants’ prospect of remaining in France had consequently become more uncertain. In fact the adversarial procedure prior to deportation had been initiated against two of them and the local Deportation Board had issued an opinion in favour of the measure. Even though no decision had ultimately been taken, this showed that their deportation remained possible. A measure of that type would be likely to have an impact on their private life. However, since no deportation order had been forthcoming, the consequence of the deprivation of nationality for their private life had solely consisted in the loss of an element of their identity.
That being said, terrorist violence in itself constituted a serious threat to human rights. The Court could therefore understand the decision of the French authorities, following the attacks in France in 2015, to show greater firmness with regard to persons convicted of a terrorism offence.
The Court also took note of the Government’s position that such an offence could mean that those concerned should no longer benefit from the specific tie constituted by the nationality of their host State; and of the point raised by the public rapporteur of the Conseil d’État that the offences of which the applicants had been convicted revealed allegiances which demonstrated the scant importance to them of their attachment to France and its values in the forging of their personal identity.
The following circumstances were also taken into consideration:
– the applicants’ participation in a criminal conspiracy to commit a terrorist act, of which they had all been found guilty, had continued for 10 consecutive years;
– some of the applicants had just acquired French nationality when they had committed the offence in question and the others had acquired it during the period of the offence;
– all the applicants already had another nationality, so the decision to deprive them of French nationality had not therefore had the effect of rendering them stateless (this being a prerequisite for the measure in domestic law);
– the loss of French nationality did not automatically entail deportation from France, but if such a measure were to be decided against them they would have the appropriate remedies by which to assert their rights.
Conclusion: no violation (unanimously).
Article 4 of Protocol No. 7: Applying the “Engel criteria”, the Court concluded that deprivation of nationality was not a “criminal punishment” within the meaning of that Article, which was not therefore applicable in the present case.
(i) Classification in domestic law – The measure of deprivation of nationality was provided for in the Civil Code, not the Criminal Code, and fell within the jurisdiction of the administrative courts rather than the criminal courts; the Conseil d’État had characterised it as an “administrative sanction”.
(ii) Nature of the measure – Deprivation of nationality pursued a specific objective, as it sought to reflect the fact that an individual who had been granted French nationality had subsequently severed his or her bond of loyalty to France by committing a particularly serious offence, and in the case of terrorism undermining the very foundation of democracy. The measure was thus a solemn confirmation of the severance of the bond between the individual and France.
(iii) Severity of the measure – Notwithstanding the seriousness of the message (reflected in the term “deprivation”) that the State was thus addressing to those concerned or the potential impact of the measure on their identity, its degree of severity had to be seen in relation to the fact that it was a response to conduct which, in matters of terrorism, constituted an attack on democracy itself. Besides, this measure in itself did not entail the deportation from France of those concerned (see above). Lastly, it was not a sanction that could be characterised as “criminal by nature”.
Conclusion: inadmissible (incompatible ratione materiae).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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