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Resolution 2263 (2019)
Withdrawing nationality as a measure to combat terrorism: a human-rights compatible approach?
1. The Parliamentary Assembly recalls
its Resolution 1989 (2014) on
access to nationality and the effective implementation of the European
Convention on Nationality, Resolution
1840 (2011) on human rights and the fight against terrorism, Resolution 2091 (2016) on
foreign fighters in Syria and Iraq, Resolution 2090 (2016) on combating
international terrorism while protecting Council of Europe standards
and values and Resolution 2190
(2017) on prosecuting and punishing the crimes against
humanity or even possible genocide committed by Daesh.
2. The Assembly underlines that while Council of Europe member
States possess a legitimate sovereign right to guarantee security
on their territory, our democratic societies can only be protected
effectively by ensuring that anti-terrorism measures abide by the
rule of law. As the deprivation of nationality in the context of
counter-terrorism strategies is a drastic measure which can be extremely
socially divisive, the measure may be at odds with human rights.
In any case, the deprivation of nationality should not be politically
motivated.
3. The Assembly recalls that the right to a nationality has been
recognised as the “right to have rights” and is enshrined in international
legal instruments such as the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights and the
European Convention on Nationality (ETS No. 166). Although the European
Convention on Human Rights (ETS No. 5, “the Convention”) does not guarantee
it as such, the recent case law of the European Court of Human Rights
shows that some aspects of this right are protected under Article
8 of the Convention, which enshrines the right to respect for private
and family life.
4. The Assembly notes that although, under international law,
statelessness should be prevented and eliminated, and arbitrary
deprivation of nationality should be prohibited, States retain wide
discretion in deciding to whom they can grant nationality and who
may be deprived of it. The United Nations 1961 Convention on the
Reduction of Statelessness, which has so far been ratified by 32
member States of the Council of Europe, sets out criteria under
which a State may provide for the deprivation of nationality. The
1997 European Convention on Nationality further limits the circumstances
in which the deprivation of nationality may occur; however, this
convention has so far been ratified by only 21 member States of
the Council of Europe.
5. The Assembly is concerned that some States consider nationality
as a privilege and not a right. Many States retain the power to
deprive of nationality, inter alia,
persons whose conduct is seriously prejudicial to the vital interests
of the State and/or who voluntarily participate in a foreign military
force. Some member States of the Council of Europe have laws which
allow withdrawal of nationality from persons who have been convicted of
terrorist offences and/or are suspected of conducting terrorist
activities (for example, Denmark, France, the Netherlands, Switzerland
or the United Kingdom) and also of less serious offences. Some of
these laws have been adopted quite recently (for example in Belgium,
Norway or Turkey). In some member States, the decision to withdraw
nationality can even be made without a criminal conviction. Such
administrative decisions may be open to appeal, but without the
procedural safeguards of criminal law and mostly without the knowledge
and/or presence of the person concerned. Such procedures violate
basic elements of the rule of law. The Assembly is also concerned
about the fact that deprivation of nationality is often used for
the sole purpose of allowing expulsion or refusing re-entry of a
person who has or may have been involved in terrorist activities.
6. The Assembly considers that the application of laws such as
those mentioned above may raise several human rights concerns. First,
it may lead to statelessness. Second, it often implies direct or
indirect discrimination against naturalised citizens, which is contrary
to Article 9 of the Convention on the Reduction of Statelessness
and Article 5.2 of the European Convention on Nationality. Third,
deprivation of nationality might occur without adequate procedural
safeguards, especially if it is decided following administrative
proceedings, without any judicial control, thereby raising issues
under Articles 6 (right to a fair trial) and 13 (right to an effective
remedy) of the European Convention on Human Rights. Fourth, in certain
circumstances, the deprivation of nationality following a criminal
conviction may violate the right not to be tried or punished twice for
the same offence (ne bis in idem)
(Article 4 of Protocol No. 7 to the European Convention on Human
Rights (ETS No. 117)), if it imposes an additional sentence.
7. The use of the deprivation of nationality must be in accordance
with the standards stemming from the European Convention on Human
Rights and other relevant international legal instruments. Any deprivation
of nationality for terrorist activities shall be decided or reviewed
by a criminal court, with full respect for all procedural guarantees;
shall not be discriminatory; shall not lead to statelessness; shall
have suspensive effect; shall be proportionate to the pursued objective
and shall be applied only if other measures foreseen in domestic
law are not effective. Failure to apply these safeguards may result
in the deprivation of nationality being arbitrary. Preventive deprivation
of nationality, without judicial control, must be avoided. The deprivation of
nationality of a parent must not lead to the deprivation of the
nationality of his or her children.
8. The Assembly also notes that the practice of depriving of
their nationality persons involved in terrorist activities (including
“foreign fighters”) or suspected of such involvement may lead to
the “exporting of risks”, as those persons may move to or remain
in terrorist conflict zones outside Europe. Such a practice goes
against the principle of international co-operation in combating
terrorism, reaffirmed, inter alia,
in United Nations Security Council Resolution 2178 (2014), which aims
at preventing foreign fighters from leaving their State of residence
or nationality, and may expose local populations to violations of
international human rights and humanitarian law. It also undermines
the State’s ability to fulfil its obligation to investigate and
prosecute terrorist offences. In this context, deprivation of nationality
is an ineffective anti-terrorism measure and may even work against
the goals of counter-terrorism policy. Moreover, it may have a strong
symbolic function but a weak deterrent effect.
9. The Assembly therefore calls on the member States of the Council
of Europe to:
9.1. review their
legislation in the light of international standards prohibiting
arbitrary deprivation of nationality, and repeal any laws that would
allow it;
9.2. refrain from adopting new laws that would permit arbitrary
deprivation of nationality because, inter alia, it
does not have a legitimate objective, it is discriminatory or disproportionate
or because it lacks procedural or substantive safeguards;
9.3. ensure that any criteria similar to that of conduct seriously
prejudicial to the vital interests of the State for involuntary
deprivation of nationality uses precise terminology and is accompanied
by written (and publicly available) guidance as to their scope and
interpretation. This guidance must promote narrow interpretation
which takes into account human right standards and the duty to not
discriminate or be arbitrary;
9.4. provide for safeguards against statelessness in their
national laws;
9.5. not discriminate between citizens on the basis of the
way in which they have acquired nationality, in order to avoid indirect
discrimination against minorities;
9.6. insofar as their legislation allows for deprivation of
nationality of persons convicted or suspected of terrorist activities,
review such provisions in light of international human rights obligations,
refrain from applying this measure and envisage and prioritise wider
use of other counter-terrorism measures foreseen in their respective
national criminal and other legislation (for example, travel bans,
surveillance measures or assigned residence orders), while respecting
human rights and rule of law standards;
9.7. abolish or refrain from introducing administrative procedures
allowing for the deprivation of nationality not based on a criminal
conviction;
9.8. refrain from depriving minors of their nationality;
9.9. insofar as they have not yet done so, sign and/or ratify
the United Nations 1954 Convention relating to the Status of Stateless
Persons, the United Nations Convention on the Reduction of Statelessness
and the European Convention on Nationality.