Deprivation of citizenship on grounds of terrorism and the compatibility of the measure with the principle of ne bis in idem under the European Convention on Human Rights
Sinokki, Nora (2022)
Sinokki, Nora
2022
Julkaisu on tekijänoikeussäännösten alainen. Teosta voi lukea ja tulostaa henkilökohtaista käyttöä varten. Käyttö kaupallisiin tarkoituksiin on kielletty.
Julkaisun pysyvä osoite on
https://urn.fi/URN:NBN:fi-fe2022050432568
https://urn.fi/URN:NBN:fi-fe2022050432568
Tiivistelmä
The increasing interest in using deprivation of citizenship as a counter-terrorism measure on convicted or suspected terrorists has been heavily criticised. This thesis examines whether the deprivation of citizenship on the grounds of a criminal conviction for a terrorist offence violates the principle of ne bis in idem as protected under Article 4 of Protocol No. 7 to the European Convention on Human Rights (ECHR), where the individual in question has already been convicted in the same state in separate criminal proceedings and the sentence has become final. The thesis also discusses the current interpretation of the European Court of Human Rights of the issue and the direction to which the Court’s case law may develop.
The thesis outlines the relevant framework of international human rights law and the main points of criticism concerning the use of citizenship deprivation as a counter-terrorism measure, and provides an analysis of the case law of the European Court of Human Rights concerning Article 4 of Protocol No. 7. The Engel criteria established by the Court’s case law is then applied to the measure of citizenship deprivation. Considering the purpose of the measure in situations concerning terrorism as well as the severity of the measure and its consequences to the individual, it is concluded that citizenship deprivation should be considered a measure with a “penal” or “criminal” nature where it is imposed on the grounds of the individual having been convicted of a terrorist offence. It is therefore argued that imposing such a measure on an individual who has already been sentenced for a terrorist offence in the same state in a separate set of criminal proceedings by a decision that has become final would violate Article 4 of Protocol No. 7.
In the terrorism-related case of Ghoumid and others v France, the Court briefly considered the claim of citizenship deprivation violating Article 4 of Protocol No. 7, but disappointingly declared the application inadmissible without providing a detailed examination of the issue. While the Court recognised that the measure may have a penal nature, in this case its purpose was considered to be simply to confirm the severance of the bond of loyalty between France and the applicants, due to the severity of the underlying offence, i.e. terrorism. The decision has been criticised, and the analysis of the Court’s previous case law provides a solid basis for the argument that the use of the measure may, under certain circumstances, violate the principle of ne bis in idem under Article 4 of Protocol No. 7 to the ECHR. The Court is therefore expected to change its view in the future, although only time will tell how its case law will develop.
The thesis outlines the relevant framework of international human rights law and the main points of criticism concerning the use of citizenship deprivation as a counter-terrorism measure, and provides an analysis of the case law of the European Court of Human Rights concerning Article 4 of Protocol No. 7. The Engel criteria established by the Court’s case law is then applied to the measure of citizenship deprivation. Considering the purpose of the measure in situations concerning terrorism as well as the severity of the measure and its consequences to the individual, it is concluded that citizenship deprivation should be considered a measure with a “penal” or “criminal” nature where it is imposed on the grounds of the individual having been convicted of a terrorist offence. It is therefore argued that imposing such a measure on an individual who has already been sentenced for a terrorist offence in the same state in a separate set of criminal proceedings by a decision that has become final would violate Article 4 of Protocol No. 7.
In the terrorism-related case of Ghoumid and others v France, the Court briefly considered the claim of citizenship deprivation violating Article 4 of Protocol No. 7, but disappointingly declared the application inadmissible without providing a detailed examination of the issue. While the Court recognised that the measure may have a penal nature, in this case its purpose was considered to be simply to confirm the severance of the bond of loyalty between France and the applicants, due to the severity of the underlying offence, i.e. terrorism. The decision has been criticised, and the analysis of the Court’s previous case law provides a solid basis for the argument that the use of the measure may, under certain circumstances, violate the principle of ne bis in idem under Article 4 of Protocol No. 7 to the ECHR. The Court is therefore expected to change its view in the future, although only time will tell how its case law will develop.