Ghoumid v France: A Problematic Seal of Approval

On 25 June 2020, the Strasbourg Court delivered judgement in the case of Ghoumid and others v France. An important question in the case was whether the French administrative measure of citizenship deprivation constituted a punishment in the sense of Article 4, protocol 7 ECHR. The applicants argued that their deprivation of citizenship constituted a violation of the double jeopardy principle, since they had already received a criminal conviction for participating in the preparation of a terrorist act.

As citizenship deprivation is considered a civil or administrative measure in most European countries, this judgement is significant. Many legal authors (see Shai Lavi) argue that qualifying it as such constitutes an “undercriminalisation” of reality. Citizenship deprivation and criminal behaviour are undeniably intertwined. Over the past years, European States (e.g. Belgium, the Netherlands) have legislated heavily on this subject, as part of counter terrorism measures. The civil/administrative qualification of such measures seems particularly designed to circumvent the higher procedural safeguards of criminal law. Unfortunately, this is representative of a broader trend in counterterrorism law.

Regrettably, in Ghoumid, the Court held that the French measure does not constitute a punishment in the sense of Article 4, protocol 7. It did so based on the Engel criteria. This assessment, however, raises some questions.

The (non) punitive purpose of citizenship deprivation

In its evaluation of the “nature of the offence”, the Court usually considers a number of elements. Strangely, the Court here only considered one – the purpose of the measure. The Court argued, firstly, that the French measure pursued “a particular objective”. It sought to draw consequences from the fact that a person who benefitted from acquiring French nationality “has subsequently broken his bond of loyalty to France by committing […] acts of terrorism […]”. The Court, thus, considered citizenship deprivation as the corollary of breaking the bond of national loyalty, rather than a measure serving a “punitive” purpose. This seems strange, since the Court itself explicitly connected citizenship deprivation to terrorist offences, which seems to suggest a punitive rather than a non-punitive purpose.

Additionally, the Court referred to citizenship deprivation as “before anything else” a “solemn” declaration “of the rupture of this bond [of nationality]”. Symbolism thus seems decisive for the non-punitive character of the purpose. Although symbolism might be a valid purpose by itself, especially from the perspective of the society the individual has “turned their back to”, this represents only one dimension of deprivation’s purpose. Given the consequences of deprivation of citizenship for the targeted individual (see below), it is difficult to claim that the aim of deprivation is merely symbolic. The consequences of deprivation stretch far beyond mere symbolism. This seems disproportionate vis-à-vis an objective that carries little practical value for society. Moreover, the symbolic dimension of deprivation is arguably an extra layer of the punitive purpose, rather than a separate dimension. Being labeled a “traitor” carries in it an extra punitive element, as it adds to the further stigmatization of the individual involved.  Labelling citizenship deprivation as mainly symbolic, therefore, seems misguided, as it fails to represent a more complex reality.

Citizenship as the gateway to human rights

Lastly, the Court considered that the “degree of severity of the penalty” “must be put into significant perspective considering that [deprivation of citizenship] responds to behaviour which […] undermines the very foundation of democracy.” Moreover, deprivation “does not in itself result in the expulsion from French territory.” Otherwise put, the Court only considered the measure itself, in isolation from its consequences. Although deprivation of citizenship as suchdoes not automatically lead to expulsion, it does automatically bring forth the loss of political rights, the right to re-entry to the territory, the most elaborate social rights and, in some instances, other fundamental rights. Citizenship is the gateway to other human rights, which the Court seemed to neglect in this judgment. In doing so, the Court missed a crucial opportunity to acknowledge the disruptive consequences of citizenship deprivation.

Conclusion

In Ghoumid, the Court gave a seal of approval to States circumventing the higher standards of criminal law through labelling the deprivation of citizenship as an ‘administrative/civil measure’. Considering both the purpose and the drastic consequences of citizenship deprivation measures, this conclusion is difficult to defend.