By Tom Boekestein, GLOBALCIT Collaborator
As reported by Dutch media on the 22nd of August, the Dutch Minister for Security and Justice is about to apply the provisions on reactive expatriation for the first time to an individual convicted of a terrorist offence in the Netherlands. Under article 14(2)(b) of the Dutch Nationality Act, the individual will consequently lose his Dutch Citizenship and be expelled from the country and lose his right to return. This serious measure is problematic in connection with the prohibition of ‘double jeopardy’, which implies the right not to be punished twice. In this contribution I discuss this development in more detail.
To understand this recent decision in the Netherlands and the underlying legislation, it is indispensable to recapitulate what reactive expatriation is and how it works: in addition to more traditional counterterrorism measures such as surveillance, border controls, or the criminalisation of preparatory offences, several states in Europe have also resorted to the use of nationality law in their efforts to prevent terrorist attacks. The underlying rationale of this type of legislation is to deprive individuals suspected or convicted of terrorism of their nationality and with it of the right to be present in, or return to, their respective home country. By precluding the physical presence of individuals posing a terrorist threat, the state seeks to preclude the commission of attacks. Two types of expatriation must be distinguished: proactive and reactive. While the former is administered before the attack occurs and without the need for a criminal conviction, the latter responds to criminal conduct and is usually triggered by a conviction for a terrorist offence under criminal law.
It is important to note that reactive expatriation as currently in place in the Netherlands and discussed in this article is not without limitations. Firstly, it is restricted in scope to convictions for specific criminal offences. In the context of terrorism, this includes both the commission of a terrorist offence as well as the preparation or facilitation of such an attack. Although this limits the applicability of the revocation to convicted terrorists, the extensiveness of the underlying articles of the Dutch Criminal Code will not only permit the expatriation of individuals who have committed the terrorist attack themselves, but also of those who merely assisted in its preparation and commission. Secondly, as prescribed by international treaties, revocation is only possible where it does not render the individual affected stateless. Therefore, only individuals holding at least one additional citizenship can have their Dutch nationality revoked under the provisions here discussed.
Although the legislation described above has been recognised in the Netherlands since an amendment to the Dutch Nationality Act was made in 2010, these measures have gained significant importance in light of the series of terrorist attacks that have recently been carried out all across Europe. The Netherlands greatly expanded the scope of its legislation on reactive expatriation in 2016 and 2017 to respond to the increased threat. Interestingly, the case here discussed marks the first actual use of this provision. According to the report from Dutch media cited above, these provisions will be used more frequently in the future as the Minister for Security and Justice is preparing to revoke the nationality of other individuals who have also been convicted for terrorist offences.
Reactive expatriation could be problematic by its very nature, however. After all, it seems as if the individual affected receives two different punishments for the same offence. This includes, on the one hand, the traditional criminal law punishment that is imposed when the individual is convicted for the terrorist offence. On the other hand, the individual is sanctioned a second time, albeit under administrative and not criminal law, when his nationality is revoked, as the revocation is neither part of the criminal punishment nor automatically inherent in it. It can only be administered at the discretion of the Minister once the individual has been convicted. The apparent double punishment inescapably calls for a discussion of the measure in the context of the non bis in idem principle.
The non bis in idem principle, also known as the prohibition of double jeopardy or the right not to be punished twice, is a fundamental principle of most criminal law systems and has been enshrined in article 4 of the seventh protocol to the ECHR (which the Netherlands has yet to ratify) and article 14(7) ICCPR (which the Netherlands has ratified). In Dutch criminal law, the principle is codified in article 68(1) of the Criminal Code. Simply put, the principle prohibits the criminal punishment of an individual for an offence he has already been convicted or acquitted for. What is problematic in the case at hand is the fact that expatriation is an administrative measure. Consequently, it would ordinarily fall outside the scope of criminal law and would normally not be covered by the scope of protection of the right not to be punished twice. Administrative sanctions would simply not count as criminal punishment.
Does the fact that revocation is a matter of administrative law therefore mean that the issue of double jeopardy has been resolved? Not in light of recent jurisprudence from the Dutch Supreme Court. In the Alcolock case, the Court held that where the participation in the alcolock programme has been imposed on an individual for drunk driving, which is an administrative law sanction, this precludes the initiation of criminal proceedings for the same conduct. Otherwise, the individual would receive a second punishment for the same offence, which would clearly violate the prohibition of double jeopardy. This means that an administrative sanction, that is serious enough and administered independent of the criminal proceedings, may preclude criminal proceedings and thus a second sanction for the same conduct. Vice versa it can be argued that in the concrete case of reactive expatriation, this would mean that an individual who has been convicted for a terrorist offence and subsequently punished under criminal law, cannot be sanctioned again for the same offence under administrative law.
For this to be applicable, it is essential that the administrative measure in question (the revocation of nationality) is deemed a form of punishment. While this will ultimately be for the Dutch courts or the ECtHR to decide, such a consideration would not seem unlikely in light of the extensive and serious implications inherent in the revocation of citizenship. After all, the individual affected will not only be deprived of his right to return to, and reside in, the Netherlands, but also lose his right to vote in Dutch elections, to only name two of the most prominent examples.
To conclude, it will be interesting to see how this individual case develops as soon as the Minister has issued the decision to revoke the nationality. Although there is no information available yet on whether the individual affected will challenge the decision, the case has the potential to reach the Dutch Supreme Court as well as the ECtHR. If it does, it might develop into an important precedent on reactive expatriation, especially since the ECtHR seems to have made clear that it is willing to review such laws against the ECHR in its decision on the inadmissibility of K2 in February of this year. If the Dutch Supreme Court indeed observes a violation of the non bis in idem principle, this would have far-reaching consequences for reactive expatriation. Effectively, the Court would prohibit reactive expatriation as currently in force, and require the Minister of Security and Justice to choose between either trying the individual under criminal law or revoking his nationality and expelling him from the country. The development of this case will thus be of great importance for the use of expatriation in the fight against terrorism in the Netherlands and could potentially also impact similar legislation in other European countries.
A follow-up blog will be published should the case indeed be brought to court.