Should terrorists be deprived of their nationality? The French Government wants the right to strip terror suspects of French nationality if dual nations, including those born in France.

02 JUNE 2016, DUBAI, UNITED ARAB EMIRATES

Summary

Should terrorists be deprived of their nationality? The French Government wants the right to strip terror suspects of French nationality if dual nations, including those born in France.

Citizenship Deprivation in France: should Europeans fighters have their citizenship removed?

 

 

Should terrorists be deprived of their nationality? The French Government wants the right to strip terror suspects of French nationality if dual nations, including those born in France.

On February 10, 2016, the French National Assembly adopted a bill (Constitutional Law to Protect the Nation) that introduces in the French Constitution provisions dealing with the declaration of the state of emergency and specifies that “the legislator has the competence to regulate nationality law, including conditions under which a person can be deprived of French nationality, where she has been condemned for a crime or offense that constitutes a serious violation of the nation's life”. The French Senate (upper house) will vote on the text on March 22, 2016. To become law, the bill needs to receive a 3/5 majority.

Here below we will focus on the issue of citizenship deprivation and the legal implications of the proposed measures.

What are the rules?

At present, citizenship deprivation is regulated by the French Civil Code that sets the rules for the acquisition and loss of French nationality. French law distinguishes between perte (loss) regulated by Article 23 of the Civil Code, and décheancé (deprivation) regulated by Article 25 of the Civil Code. Article 23 covers voluntary and involuntary loss of nationality and its personal scope can include persons who acquired French nationality by birth, whereas citizenship deprivation is applicable only to persons who have become French after birth (naturalized citizens). Loss of nationality is considered something of an academic provision since in the recent past it has never been used. Since 1998 (law no. 98-170 of 16 March 1998) a person can be deprived of citizenship only if she is not made stateless by the measure, which, in facts, means that the person has more than one nationality. Naturalized citizens may have their naturalization withdrawn in case of fraud or misrepresentation according to Article 27-2 of the Civil Code. The latter case is the most common ground for loss of French nationality. As a matter of fact, this does not conform with France’s Declaration of the Rights of Man and of the Citizen. Article 6 of the Declaration says that the law “must be the same for everyone, whether it protects or punishes”.

Citizen deprivation based on Article 25 of the Civil Code sanctions lack of allegiance (defaut de loyalisme) in some circumstances, among those is “the conviction for acts against the fundamental interests of the nation, or conviction for ordinary or serious offenses which constitute acts of terrorism”.

Since 2003 citizenship deprivation can occur for facts prior to the person’s acquisition of French nationality. As a rule, deprivation can be pronounced only within 10 years of the perpetration of the facts. In 2006 the time limit increased to 15 years in case of act of terrorism, or acts against the fundamental interest of the nation.

What will change?

The constitutional bill clarifies that the legislator has the competence to regulate nationality law, including deprivation of nationality and that any French national can be subject to a citizenship deprivation measure, irrespective of how she acquired nationality.

If the bill is adopted by the Senate in its current form, the French legislator will be able to make changes to the current provisions on loss of nationality. It is unclear whether this will take the form of abrogating altogether Article 25 of the Civil Code and replacing it with a new provision applicable to all French citizens irrespective of how they acquired citizenship, or whether Article 25 will survive, but a new case of citizenship deprivation will be added alongside it. The initial proposal was phrased differently from the current text (the provision only referred to the possibility to deprive of citizenship French citizens by birth; it did not cover naturalized citizens for whom Article 25 of the Civil Code was the relevant provision). Prior to this constitutional bill, there have been several unsuccessful attempts to modify the provisions of the Civil Code in respect of citizenship deprivation.

Below is a short analysis of the main elements of the bill:

Personal scope: any person who has French nationality, irrespective of how nationality was acquired. The person must have another nationality, thus the measure will only be relevant for dual or multinationals.

Material scope: the person must be condemned for a crime or offense that constitutes a serious violation of the nation's life. There is actually no definition of what constitutes a serious violation of the nation's life and the ordinary legislator will have to clarify the scope of this notion if it will proceed to amend the rules on citizenship deprivation. When introducing the law in Parliament, the prime minister referred to crimes of terrorism, treason, espionage and similarly serious crimes affecting the life of the nation. He underlined that only the most serious crimes and offenses will justify a measure of citizenship deprivation including direct financing of terrorism, individual acts of terrorism and participation in a criminal group or constitution of a criminal group that intends to commit terrorist acts.

Effects: since persons holding only French nationality cannot lose it since they would become stateless, deprivation of the rights attached to it can be seen as an alternative measure to be used where citizenship deprivation is not possible. In practice this would lead to a person losing those rights that only French citizens can have—political and voting rights, as well as the right to hold certain official positions. Deprivation will operate only for the future, and will have an individual character, thus the spouse and children of the person concerned will not be affected by the measure.

France is bound by several human rights conventions; it is unclear whether a person deprived of citizenship can be that easily removed from France.

How effective will a new law be?

Citizenship deprivation has been rarely used by the French executive, and since 1973 only 13 cases of citizenship deprivation for acts of terrorism and acts against the fundamental interest of the nation (2015—five; 2014—one; 2006—five; 2003—one; 2002—one) have been reported. President Hollande announced his intention to change the law soon after the events of November 2015.

Following the deadly attacks of November 2015, lawmakers have called for urgent measures to make it easier to strip terrorists of their nationality, even if some are skeptical about its scope.

With the exception of the Front National (National Front), which firmly supports the bill, this prominent issue divided political parties and raised a great deal of objection.

According to an Ifop poll, 81 percent of French-born common people support measures to strip French citizenship from dual nationals who have committed terrorist attacks in France.

What about Europe’s reaction to France’s statement?

The European Commission has issued a list of measures it believes would strengthen the EU’s response to radicalization and violent extremism. None of these measures involve revoking citizenship (which would be illegal under international law if it led to an individual becoming stateless). Nevertheless, several EU Member States, including the UK, Austria and the Netherlands, have either already enacted laws to remove the citizenship of dual-nationals convicted of terror offences, or else are currently debating whether to do so.

Conclusion

On March 31, after four months and 63 hours of discussion went up in smoke, President Holland made a step back at the end of the council of ministers, and the official announcement that France will not revoke the nationality to French terrorists, even if convicted criminals. This decision was largely seen as a surrender act to his own party. In President’s own words “I realize today that the National Assembly and the Senate have not found an agreement and that a compromise on the decline seems to be far from expectations, and have decided to close the constitutional debate for failing to get a consensus on proposal of citizen revocation”.

So, by far, it seems that French citizen still have to look behind their shoulders, until a new debate on the subject will take prominent discussion.

Article authored by Sonia Russo, info@soniarusso.it

Source: Jurist Guest Columnist Dr. Sandra Mantu, of Radboud University