Deprivation of Dutch Citizenship and Double Jeopardy: recent developments

By Tom Boekestein (University of Cambridge), GLOBALCIT collaborator.

About a year ago, when Dutch media first reported that the Dutch Minister of Security and Justice considered revoking the citizenship of an individual convicted of a terrorism offence, I wrote a contribution to this Blog in which I argued that this practice is likely in conflict with the prohibition of double jeopardy or the right not to be punished twice. In summary, I argued that due to its serious consequences, denationalisation is equivalent to a criminal law sanction. Thus, after being sentenced under criminal law for a specific terrorist offence, the convict is subjected to additional punishment when his citizenship is revoked. In particular, I referred to the Dutch Alcolock case, in which the Dutch Supreme Court held that imposing an administrative law sanction (the installation of an alcolock) precluded criminal law punishment (for driving under the influence) and vice versa. I argued that this ruling should be transposed to the denationalisation of those convicted of terrorist offences. Ultimately, four Dutch-Moroccans had their Dutch citizenship revoked. An appeal against one of these decisions has recently been declared inadmissible by a lower Dutch Court. The decision is significant for two reasons. Most importantly, the Court upholds the right to a fair trial, thus prima facie enhancing the legal protection of those who have their citizenship revoked. Yet, in so doing, the Court rejects the automatic review of citizenship revocation. This raises the interesting question of whether the legal protection of the individual has actually been strengthened. Furthermore, the decision is also of relevance for what I have previously argued, since the Court acknowledges the seriousness of denationalisation. This is essential for the argument that the revocation of nationality, despite being an administrative law measure, should be treated as a criminal law sanction.

The applicant in the case was identified by the Dutch Court as ‘B’, who had been sentenced to six years imprisonment in absentia in 2016 for joining a terrorist organisation. On 11 September 2017, his Dutch citizenship was revoked under Article 14(4) Dutch Nationality Act (DNA). This is somewhat peculiar, given that Article 14(2)(b) DNA specifically addresses the denationalisation of those convicted of terrorism offences. Yet, it seems that Article 14(4) DNA was opted for because B had not returned to the Netherlands after having left the country to join a terrorist organisation. B has not appealed the decision depriving him of his Dutch nationality nor that declaring him persona non grata, which prevents him from returning to the Netherlands. However, 28 days after the loss of citizenship, an automatic appeal against the decision was filed on behalf of B by the Dutch Minister of Security and Justice under Article 22a DNA – the very Minister who had previously issued the decision revoking nationality. B was represented by a lawyer his parents had chosen. Whilst it may seem unusual at first, the Article 22a procedure is intended to ensure that the severe decision to revoke someone’s nationality would be subject to judicial review. The automaticity of the procedure is important, because a decision under Article 14(4) DNA takes effect immediately and those to whom it applies are necessarily absent from the Netherlands and subsequently prohibited from returning.

The automatic appeal on behalf of B against the revocation was dismissed by the Court on 26 June 2018 on the basis that Article 22a was in conflict with the right to fair trial and effective remedy (Article 47 CFREU read in conjunction with Article 6 ECHR) and could thus not provide a legal basis for the appeal. The Court reasoned that the automatic appeal interfered with B’s right to an effective judicial remedy because it could lead to a deprivation of nationality being upheld without the individual concerned having the opportunity to be heard or present evidence. The Court further found that this interference was not justified because it was not necessary. After all, B would be able to challenge the administrative decision revoking his citizenship himself through ordinary administrative appeal once he became aware of it. B’s absence from the proceedings could thus not be justified, meaning that an appeal against the decision must be filed by B himself.

The Court’s decision addresses a fundamental dilemma that is inherent in denationalising citizens who reside abroad. On the one hand, adjudicating on the revocation in the absence of the individual concerned raises those fair trial concerns that were highlighted by the Dutch Court. On the other hand, however, the difficulties the individual concerned faces in appealing against the denationalisation should not be dismissed either. After all, it seems unlikely that an individual who has joined a terrorist organisation abroad (as is a condition of Article 14(4) DNA) will become aware thereof. Furthermore, it will be difficult for that individual effectively to challenge the decision, given that the individual will also have been declared persona non grata and thus be unable to return to the Netherlands. Finally, under Article 6:16 General Administrative Law Act (GALA). Filing an appeal against the decision will not suspend the denationalisation, meaning that the individual will not be able to return to the Netherlands regardless. According to the Court, this ensures that the security aim pursued by the denationalisation is not undermined. Yet, this acknowledgement by the Court seems contradictory to the importance of the applicant’s presence at the procedure that the is stressed throughout the remainder of the decision. If the denationalisation is not suspended, the individual cannot be present at the proceedings against it without illegally entering the Netherlands. While it is certainly undesirable that the decision withdrawing nationality could be adjudged in the absence of the person concerned under Article 22a DNA, it seems unlikely that a traditional administrative appeal would be brought at all. Nevertheless, it must be also be acknowledged that in K2, the ECtHR ruled that out-of-country appeals are not necessarily arbitrary, provided that the applicant is able to effectively participate in the proceedings. Ultimately, with regard to the right to fair trial and an effective remedy, the case raises a complicated dilemma. The ruling handed down by the Court clearly enhances the right, yet in doing so also reduces the likelihood that denationalisation is ever reviewed. However, whilst a ruling against the applicant would have upheld automatic review of denationalisations under Article 14(4), those cases could then be decided on the basis of incomplete evidence and without hearing the applicant. Thus, neither of the two possible outcomes would have been in favour of the individual concerned – review would either be unlikely or incomplete.

The right to fair trial is clearly the main issue addressed by the Court. Yet, the decision is also of relevance with regard to the issue of double jeopardy raised in my earlier contribution. The case shows that Article 14(4) DNA may infringe the prohibition of double jeopardy in a similar way as Article 14(2)(b). While it is not entirely apparent from the Dutch Court’s decision, it seems that the revocation of B’s citizenship in 2017 is based on the same conduct as his criminal conviction for joining a terrorist organisation in 2016. If this is indeed the case, the prohibition may have been violated if the administrative decision withdrawing B’s citizenship is equivalent to a criminal conviction for human rights purposes. Although the Dutch Court does not explicitly equate the two, it does acknowledge the severity of the denationalisation as constituting a ‘serious interference’, a finding that supports the argument here made but also requires further elaboration.

In conclusion, the decision supports the argument that denationalising an individual who has already been convicted of a terrorist offence likely violates the prohibition of double jeopardy. However, the decision has also made it less likely that this matter will ever be ruled upon by a court of law. As discussed, the addressee of the measure is now the only one who can file an appeal against it. At least in Article 14(4) cases, it is unlikely that the individual will be aware of the denationalisation or challenge it. Instead, the double jeopardy issue will likely arise in a case where Article 14(2)(b) has served as the basis for the denationalisation. However, it must be noted that this provision has not yet been applied in practice.