Indfødsretsudvalget 2021-22
IFU Alm.del Bilag 99
Offentligt
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SECOND SECTION
DECISION
Application no. 27801/19
Adam JOHANSEN
against Denmark
The European Court of Human Rights (Second Section), sitting on
1 February 2022 as a Chamber composed of:
Mr Carlo Ranzoni,
President,
Jon Fridrik Kjølbro,
Egidijus
Kūris,
Pauliine Koskelo,
Jovan Ilievski,
Branko Lubarda,
Diana Sârcu,
judges,
and Hasan
Bakırcı,
Deputy Section Registrar,
Having regard to the above application lodged on 10 May 2019,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the European Centre for Law
and Justice (ECLJ), which was granted leave to intervene by the President of
the Section (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of
Court);
Having deliberated, decides as follows:
INTRODUCTION
1. The application concerns the withdrawal of the applicant’s Danish
citizenship and an order to expel him following a criminal conviction for
offences related to terrorism.
THE FACTS
2. The applicant, Mr Adam Johansen, has dual nationality, Tunisian and
Danish. He was born in Denmark in 1990 and lives in Aarhus. He was
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JOHANSEN v. DENMARK DECISION
represented before the Court by Mr Tobias Stadarfeld Jensen, a lawyer
practising in Aarhus.
3. The Danish Government (“the Government”) were represented by their
Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their
Co-Agent, Ms Nina Holst-Christensen, from the Ministry of Justice.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised
as follows.
5. The applicant was born in Denmark to a Danish mother and a Tunisian
father. He acquired Danish nationality at birth. The family always lived in
Denmark, except for a period of 6 months when they lived in Tunisia, from
December 2005 to June 2006. The applicant’s father returned to Tunisia for
about two years in 2009, returning there permanently in 2013/2014.
6. On 9 February 2009 the applicant married a Danish woman in an
Islamic ceremony. They had a son in 2010. In 2015, the applicant changed
his name, from X
to his present name.
7. In spring 2016 the Danish Security and Intelligence Service received a
list from Interpol with the names of persons believed to have been recruited
by the terrorist organisation Islamic State and to have operated in Syria. The
applicant’s name was on the list.
8. On 7 April 2016 the applicant was arrested and provisionally charged
on the basis of information that he had allegedly entered Syria and had
accepted his recruitment by the terrorist organisation Islamic State in Iraq and
the Levant (ISIL). The following day, by decision of a District Court, the
applicant was remanded in custody.
9. On 16 October 2017, for the purposes of the criminal proceedings and
at the request of the prosecution, the Ministry of Immigration and Integration
(Udlændinge-
og Integrationsministeriet)
issued an opinion on the
applicant’s nationality status, stating,
inter alia,
as follows:
“ ... The Ministry of Immigration and Integration wants to point out that [the
applicant] acquired Danish nationality (citizenship) at birth in pursuance of section 1(1)
of Act No. 155 of 6 April 1978 on Danish Nationality (indfødsretsloven) as he was born
on the Faroe Islands on ... 1990 to a Danish mother.
... It appears from the case file of the Ministry of Immigration and Integration relating
to applications for Danish nationality and for residence permits for Denmark lodged by
[S.A.], [the applicant’s father], that, according to the information provided by him, he
was born in ..., Tunisia, on ... 1966, and that he and his parents are all Tunisian nationals.
It also appears from the Danish Civil Registration System (the CPR Register) that [S.A.]
is registered as a Tunisian national.
Moreover, the Ministry of Immigration and Integration has copies of [S.A.]’s three
Tunisian nationality passports .... All passports have been issued by the Tunisian
Embassy in the Hague.
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JOHANSEN v. DENMARK DECISION
Please note that the application for Danish nationality lodged by [S.A.] was refused
on 3 February 2003.
Against this background, the Ministry of Immigration and Integration considers it a
fact that [S.A.] was a Tunisian national in the period from [the applicant’s] birth on ...
1990 until 3 July 2012.
According to Article 6(1) of the
Code de la Nationalité Tunisienne
(the Tunisian
Nationality Act) of 28 February 1963 as amended, a person acquires Tunisian
nationality at birth if the father is a Tunisian national. The Ministry of Immigration and
Integration has two versions of this Code, both of which are appended to this letter.
It further appears from an email of 12 August 2016 from the Tunisian Embassy in the
Hague to the Copenhagen Police that a child acquires Tunisian nationality if the father
is Tunisian and that it is irrelevant whether the child has also acquired another
nationality.
Against this background, the Ministry of Immigration and Integration considers it a
fact that [the applicant] acquired Tunisian nationality at birth.
The Ministry of Immigration and Integration has tried in vain to contact the relevant
Tunisian authorities to request information on [the applicant’s nationality status in
Tunisia, including whether [the applicant] has been deprived of or released from his
Tunisian nationality.
However, the Ministry of Immigration and Integration observes that it follows from
Article 33 of the
Code de la Nationalité Tunisienne
of 28 February 1963 as amended
that a person having acquired Tunisian nationality can be deprived of his Tunisian
nationality if he is convicted of an offence or crime against the internal and external
national security, if he commits acts incompatible with and harmful to the interests of
Tunisia on behalf of a foreign state, if he is convicted in Tunisia or abroad of an act that
is a criminal offence under Tunisian law and is sentenced to imprisonment for a term
of at least five years, or if he is convicted of draft evasion.
Under Article 34 of the same Code, a person’s nationality will only lapse if the
circumstances referred to in Article 33 occur within a 10-year period after Tunisian
nationality has been awarded. The claim for lapse of nationality must be made within
five years after the relevant act was committed.
As regards release, it appears from Article 39 of the
Code de la Nationalité Tunisienne
of 28 February 1963 as amended that a Tunisian national can request release from his
Tunisian nationality. Such request must be registered with the Tunisian Ministry of
Justice.
The Ministry of Immigration and Integration does not have any information indicating
that [the applicant] has been deprived of or released from his Tunisian nationality.
Based on an overall assessment of the information available, the Ministry of
Immigration and Integration finds that [the applicant] is a Danish and a Tunisian
national and accordingly has dual nationality. ...”
10. The applicant maintained that before the criminal trial against him, he
had not known that he also held Tunisian nationality.
11. On 20 October 2017, for the purposes of the court proceedings, the
Danish Immigration Service (Udlændingestyrelsen) gathered information
concerning the applicant’s personal circumstances and drew up an assessment
of whether the prosecution should refrain from submitting a request for
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JOHANSEN v. DENMARK DECISION
expulsion in view of Denmark’s international obligations. It stated,
inter alia,
the following:
“ ... It has been stated for the purposes of this case that the prosecution anticipates
that the person in question will be sentenced to six years’ imprisonment.
Furthermore, it has been stated that, in the assessment of the prosecution, a claim
should be made for an expulsion order combined with a permanent re-entry ban in the
criminal case if the relevant person is deprived of his Danish nationality in pursuance
of section 8b(1) of the Danish Nationality Act.
The defendant has been in pre-trial detention since 7 April 2016.
Provided that [the applicant] is deprived of his Danish nationality, the prosecution has
requested the Danish Immigration Service to make an assessment of the issue of
expulsion. ...
Personal circumstances (section 26(2) of the Aliens Act)
As regards the issue of whether a decision to expel [the applicant] may be considered
to be contrary to Denmark’s international obligations, the Danish Immigration Service
refers to the police report of 20 April 2017. The following appears from the report:
[The applicant] has changed names from X [to his present name]
[The applicant’s] mother originates from the Faroe Islands and his father from Tunisia
[The applicant] was born in Torshavn on the Faroe Islands
[The applicant] moved to Denmark with his parents at the age of 3 and has lived in
Denmark ever since, except for a period from 2 December 2005 to 20 June 2006 when
he lived in Tunisia together with his parents
[The applicant] was confronted with the information from the Tunisian Embassy in
the Netherlands that he was a Tunisian national
[The applicant] has never considered himself a Tunisian national, nor has he been
aware that he was a Tunisian national
[The applicant] did not know that he had a Tunisian passport at his home
[The applicant’s] social network in Tunisia comprises his father and a few unnamed
family members with whom he does not have any contact
[The applicant] and his live-in partner, who is a Danish resident, have married in a
Muslim ceremony, and they have a minor son
[The applicant’s] social network in Denmark further comprises his mother, one sister,
one half-sister as well as friends and remote relatives
[The applicant’s] social network on the Faroe Islands comprises his maternal
grandmother and grandfather and remote relatives
[The applicant] speaks Danish, Faroese and a little Arabic
[The applicant] suffers from a distorted vertebrae, asthma and obesity
In the assessment of the Danish Immigration Service, it will have no consequences on
the right of residence of [the applicant’s] live-in partner or child if Adam Johansen were
to be expelled from Denmark. ...
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JOHANSEN v. DENMARK DECISION
Opinion on the issue of expulsion
Initially, it is observed that it follows from section 26(2) of the Aliens Act that an
alien must be expelled under sections 22 to 24 unless expulsion would be contrary to
Denmark’s international obligations.
In view of the information given by the prosecution on the nature of the crime and on
the expectation that he will be sentenced to imprisonment for a term of six years, read
in conjunction with the considerations set out in section 26(2) of the Aliens Act, the
Danish Immigration Service concurs in the prosecution’s recommendation of
expulsion. ...”
12. On 26 October 2017 the applicant was convicted by the District Court
of Frederiksberg (Retten
på Frederiksberg)
(hereafter the “District Court”),
sitting with a jury, of a violation of Articles 114c(3) and 114d(3) of the Penal
Code and sentenced to four years’ imprisonment. It was deemed established
that he had entered Syria on 9 September 2013 and accepted recruitment and
training in the commission of terrorist acts falling under Articles 114 and
114a of the Penal Code. He had received training until 19 February 2014,
when he had returned to Denmark. Relying on an overall assessment, the
District Court, by a majority of ten out of twelve judges, found no basis for
depriving the applicant of his Danish nationality, which meant that there was
no basis for his expulsion.
13. The prosecution appealed against the judgment to the High Court of
Eastern Denmark (Vestre
Landsret)
(hereafter “the High Court”), submitting
that the applicant should be deprived of his Danish citizenship and expelled.
14. On 20 April 2018 the High Court, by a majority of four out of six
judges, upheld the District Court judgment.
15. On 28 June 2018 the Appeals Permission Board
(Procesbevillingsnævnet) granted the prosecution permission to appeal
against the decision relating to the deprivation of Danish nationality and
expulsion to the Supreme Court (Højesteret).
16. By judgment of 19 November 2018, the Supreme Court unanimously
(all five judges) deprived the applicant of his Danish nationality and expelled
him from Denmark with a permanent ban on his return. In its reasoning, the
Supreme Court specifically relied on Article 8 of the Convention and, among
others,
Maslov v. Austria
[GC], no. 1638/03, ECHR 2008. As to the concrete
assessment in the present case, it stated:
“As already mentioned, [the applicant], who has both Danish and Tunisian
nationality, was sentenced to imprisonment for a term of four years for violation of
Article 114c(3) and Article 114d(3) of the Penal Code. Accordingly, section 8b(1) of
the Danish Nationality Act authorises the deprivation of his Danish nationality, and if
he is deprived of his Danish nationality, section 22(1)(vi) of the Aliens Act provides
the authority to expel him from Denmark.
A decision to deprive him of his Danish nationality must be based on a proportionality
test. If he is to be deprived of his Danish nationality, he must also be expelled, unless
the expulsion would be contrary to Denmark’s international obligations, see section
26(2) of the Aliens Act then in force, read with Article 8 of the European Convention
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JOHANSEN v. DENMARK DECISION
on Human Rights. The purpose of expelling a person is to prevent disorder or crime,
and a proportionality test is therefore also required under Article 8 to determine whether
the relevant person can be expelled.
[The applicant] has committed serious terrorism offences, and those offences have
been sanctioned with imprisonment for a term of four years. According to the
travaux
préparatoires
of section 8b(1) of the Danish Nationality Act, the general rule is that he
must be deprived of his Danish nationality, and there are also very compelling reasons
for expelling him from Denmark.
[The applicant] was born in 1990 on the Faroe Islands to a Faroese mother and a
Tunisian father. When he was nearly three years old, he moved to Denmark with his
parents, and he was raised and had his schooling in Denmark, except for a 6�½-month
stay in Tunisia from December 2005 to June 2006 when he was 15 years old. He has
married a Danish woman in an Islamic wedding ceremony, and they have lived together
since 2009. They have a son who was born in January 2010. His mother and siblings
also live in Denmark. He speaks, reads and writes Danish. Even though [the applicant]
has no higher education, and never had a regular attachment to the Danish labour
market, and has lived on public benefits since 2011, his ties with Denmark are strong.
[The applicant] was in Tunisia on holiday for one to two weeks about eight times prior
to his 15th birthday and, as already mentioned, he lived in the country for six months
together with his parents in 2005-2006. His father moved back to Tunisia in 2013 or
2014, but according to [the applicant’s] statement, he does not know whether his father
still lives in the country. He last saw his father in May 2016 when his father visited him
in prison. He speaks and reads Arabic, but he has stated that it is sometimes hard for
him to understand the Tunisian dialect. He had his schooling at a Muslim school in
Copenhagen. He has stated that Islam means everything to him and that he practises
Islam in his everyday life. Even though [the applicant] was raised in Denmark, the
Supreme Court finds in view of the information provided that it must be assumed that
his ties with Tunisia and his familiarity with Tunisian culture and lifestyle are not
insignificant.
Based on an overall balancing test, the Supreme Court finds that neither the
deprivation of [the applicant’s] Danish nationality nor expulsion combined with a
permanent re-entry ban would be a disproportionate sanction.
In this respect, the Supreme Court particularly takes into account the seriousness and
the nature of the crime committed. Furthermore, the Supreme Court finds that regard
for [the applicant’s] family and private life in Denmark does not make the deprivation
of his Danish nationality and expulsion conclusively inappropriate. It is observed in this
respect that [the applicant] left his family in Denmark at his own initiative in connection
with the crime committed in order to take up residence in a war zone in Syria. It is also
observed that it is assumed that his live-in partner, who converted to Islam at the age of
18, and their now 8-year-old son, who has attended an Islamic school for a short period
and is now home-schooled by his mother, are not entirely unprepared for accompanying
him to Tunisia. If they do not want to settle in Tunisia, it is possible for them to visit
him there and to communicate with him by telephone and on the Internet.
Conclusion
The Supreme Court changes the judgment of the High Court, depriving [the applicant]
of his Danish nationality under section 8b(1) of the Danish Nationality Act and
expelling him from Denmark with a permanent re-entry ban in pursuance of section
22(1)(vi), read in conjunction with section 32(2)(v), of the Aliens Act then in force.”
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JOHANSEN v. DENMARK DECISION
17. Since
the summer of 2019, the Danish authorities have tried in vain to
obtain travel documents in order to execute the expulsion order and deport the
applicant to Tunisia, notably by contacting the Tunisian Embassies in Stockholm
and Oslo (there is no Tunisian Embassy in Denmark). The Danish authorities,
including the Return Agency (Hjemrejsestyrelsen) and the Ministry of Foreign
Affairs, were informed that the applicant, under the name X, had a Tunisian
passport issued on 22 January 1997. It was valid until 21 January 2002, and
prolonged until 9 May 2007. At the end of 2020, apparently the Tunisian
authorities also informed the Ministry of Foreign Affairs that they had not been
able to identify X as a Tunisian national.
18. Meanwhile, on 16 March 2020, the applicant was released on completion
of his sentence. On the same day he was remanded in custody pursuant to section
35(1)(i) of the Aliens Act, where he remained until 5 November 2020, when the
High Court found that an extension could no longer be considered proportionate.
19. Subsequently, the applicant has been placed in mandatory
accommodation at a pre-departure centre (Udrejsecenter
Kærshovedgård)
where he is required to remain overnight and report regularly.
20. On 13 April 2021, alleging that he did not have Tunisian citizenship,
the applicant requested that the Special Court of Revision reopen his case.
The Prosecution Service requested that the request be refused. They noted
that it had been undisputed during the criminal proceedings that the applicant
also had Tunisian nationality. He was born to a Tunisian father and therefore
automatically acquired Tunisian nationality at birth (see paragraph 9 above)
and he had had a Tunisian passport
(see paragraph 17 above). Moreover, most
recently, on 14 September 2021, the Tunisian authorities had informed the
Danish authorities that “there could be no doubt that the applicant had Tunisian
citizenship” and that the “necessary judicial basis existed to allow the Tunisian
Ambassy to issue travel documents with a view to deporting the applicant to
Tunisia”. On
20 December 2021 the Special Court of Revision refused to
reopen the case.
B. Relevant domestic law
21. Section 8b of the Act on Danish Nationality (Indfødsretloven, no. 422
of 7 June 2004) reads as follows:
“(1) A person convicted of violation of one or more provisions of Parts 12 and 13 of
the Penal Code may be deprived of his or her Danish nationality by court order unless
this will make the person concerned stateless.
(2) Where a person is punished abroad for an act which may, under subsection (1)
hereof, lead to deprivation of Danish nationality, such person can be deprived of his or
her nationality pursuant to article 11 of the Penal Code.”
22. According to the preparatory works to section 8b of the Act on Danish
Nationality, a decision to deprive citizenship requires a proportionality test to
be conducted, weighing the seriousness of the crime against the impact on the
person of his or her loss of Danish citizenship. Such a determination involves
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JOHANSEN v. DENMARK DECISION
evaluating the person’s ties to Denmark as compared with his or her ties to
another country of which he or she is a citizen, including family ties in both
countries. Moreover, a person who has been convicted of a serious crime
punishable by more than two years’ imprisonment, should, as a starting point,
be stripped of Danish citizenship. However, even very serious crimes should
not result in loss of citizenship if the person has no connection or very little
connection to the other country.
23. The relevant sections of the Aliens Act provide:
Section 26
“(1) In deciding on expulsion under sections 25a to 25c, regard must be had to the
question whether expulsion must be assumed to be particularly burdensome, in
particular because of –
(i) the alien’s ties with Danish society;
(ii) the alien’s age, health and other personal circumstances;
(iii) the alien’s ties with persons living in Denmark;
(iv) the consequences of the expulsion for the alien’s close relatives living in
Denmark, including impact on family unity;
(v) the alien’s slight or non-existent ties with his country of origin or any other country
in which he may be expected to take up residence; and
(vi) the risk that, in cases other than those mentioned in section 7(1) and (2) and
section 8(1) and (2), the alien will be ill-treated in his country of origin or any other
country in which he may be expected to take up residence.
(2) An alien must be expelled under sections 22 to 24 and 25 unless this would be
contrary to Denmark’s international obligations.”
Section 32
“...
(2)
A re-entry ban in connection with expulsion under sections 22 to 24 is imposed –
...
(v) permanently if the alien is sentenced to imprisonment for more than two years or
other criminal sanction involving or allowing deprivation of liberty for an offence that
would have resulted in a punishment of this duration”
24. Section 32 was amended by Act no. 469 of 14 May 2018, which came
into force on 16 May 2018. Briefly explained, the amendment entailed that
the re-entry ban was to be imposed permanently, if the alien was sentenced
to imprisonment for more than one year and six months (section 32(4)(vii)),
but it gave the courts discretion to reduce the length of re-entry bans, whether
limited in time or permanent, if the length would otherwise certainly be in
breach of Denmark’s international obligations, including Article 8 of the
Convention. The Act applied to crimes committed after its entry into force
(and thus not to the present case).
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JOHANSEN v. DENMARK DECISION
C. Council of Europe documents
25. The principal Council of Europe document concerning nationality is
the European Convention on Nationality (ETS No. 166), which was adopted
on 6 November 1997 and came into force on 1 March 2000. It has been
ratified by twenty-one member States of the Council of Europe, including
Denmark (on 24 July 2002, entering into force on 1 November 2002). The
relevant provisions read as follows:
Article 1 – Object of the Convention
“This Convention establishes principles and rules relating to the nationality of natural
persons and rules regulating military obligations in cases of multiple nationality, to
which the internal law of States Parties shall conform.”
Article 4 – Principles
“The rules on nationality of each State Party shall be based on the following
principles:
a everyone has the right to a nationality;
b statelessness shall be avoided;
c no one shall be arbitrarily deprived of his or her nationality;
d neither marriage nor the dissolution of a marriage between a national of a State
Party and an alien, nor the change of nationality by one of the spouses during marriage,
shall automatically affect the nationality of the other spouse.”
Article 5 – Non-discrimination
“1 The rules of a State Party on nationality shall not contain distinctions or include
any practice which amount to discrimination on the grounds of sex, religion, race,
colour or national or ethnic origin.
2 Each State Party shall be guided by the principle of non-discrimination between its
nationals, whether they are nationals by birth or have acquired its nationality
subsequently.”
Article 7 – Loss of nationality ex lege or at the initiative of a State Party
1. A State Party may not provide in its internal law for the loss of its nationality ex
lege or at the initiative of the State Party except in the following cases:
...
d) conduct seriously prejudicial to the vital interests of the State Party;
...
3.
A State Party may not provide in its internal law for the loss of its nationality under
paragraphs 1 and 2 of this article if the person concerned would thereby become
stateless, with the exception of the cases mentioned in paragraph 1, sub-paragraph b, of
this article.
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26. The relevant part of the Explanatory report to the European
Convention on Nationality reads as follows:
“58. Article 7 consists of an exhaustive list of cases where nationality may be lost
automatically by operation of law (ex
lege)
or at the initiative of a State Party. In these
limited cases, and subject to certain conditions, a State Party may withdraw its
nationality. The provision is formulated in a negative way in order to emphasise that
the automatic loss of nationality or a loss of nationality at the initiative of a State Party
cannot take place unless it concerns one of the cases provided for under this article.
However, a State Party may allow persons to retain its nationality even in such cases.
Article 7 does not refer to cases in which there have been administrative errors which
are not considered in the country in question to constitute cases of loss of nationality.
...
Sub-paragraph d
67. The wording “conduct seriously prejudicial to the vital interests of the State Party”
is drawn from Article 8, paragraph 3.a.ii of the 1961 Convention on the Reduction of
Statelessness. Such conduct notably includes treason and other activities directed
against the vital interests of the State concerned (for example work for a foreign secret
service) but would not include criminal offences of a general nature, however serious
they might be.
68. Furthermore, the 1961 Convention stipulates that conduct seriously prejudicial to
the vital interests of the State can constitute a ground for deprivation of nationality only
if it is an existing ground for deprivation in the internal law of the State concerned,
which, at the time of signature, ratification or accession, the State specifies it will
retain.”
27. In a report of 14 January 2003 on Conditions for the Acquisition and
Loss of Nationality, the Committee of Experts on Nationality to the Council
of Europe (CJ-NA (2002) 1) set out,
inter alia,
in paragraph 48:
“...The Convention sets out in some detail the circumstances in which revocation
should be allowed. These are: acquisition of nationality by means of fraudulent conduct,
false information or concealment of any relevant fact (Article 7.1.b); voluntary service
in a foreign military force (Article 7.1.c); conduct seriously prejudicial to the vital
interests of the State (Article 7.1.d); where it is established during the minority of a
child that the preconditions which led to the ex lege acquisition of nationality are no
longer fulfilled (Article 7.1.f); and where upon adoption a child acquires a foreign
nationality of one or both of the adoptive parents (Article 7.1.g). But many States have
in their legislation other reasons for the deprivation of citizenship. These may include
such matters as conviction for a serious criminal offence; public service without
permission in a foreign State, especially if by doing so the individual acquires the
foreign nationality; working for a foreign intelligence or security service or military
organisation; performance of acts contrary to the interests of the State; where an
individual fails his or her duty of fidelity and loyalty; and attempting to forcefully
change the constitutional state system. These matters were rejected by the CJ-NA in
drafting the Convention and it is unlikely that extra circumstances would be accepted
for adding to the Convention.”
28. The preamble to the Council of Europe Convention on the Prevention
of Terrorism of 16 May 2005, included the following:
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“...Recalling that acts of terrorism have the purpose by their nature or context to
seriously intimidate a population or unduly compel a government or an international
organisation to perform or abstain from performing any act or seriously destabilise or
destroy the fundamental political, constitutional, economic or social structures of a
country or an international organisation; ...”
COMPLAINT
29. The applicant complained that the order to withdraw his Danish
citizenship and to expel him from Denmark was in violation of Article 8 of
the Convention.
THE LAW
30. The applicant relied on Article 8 of the Convention, which reads as
follows:
“Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
31. The Government submitted that the application should be declared
inadmissible as being manifestly ill-founded.
32. They maintained that the Supreme Court had made a careful
assessment of all the relevant elements, including the fact that the applicant
had acquired Danish nationality at birth in Denmark, and specifically taken
Article 8 of the Convention and the pertinent case-law into account.
33. The Government pointed out that before the domestic courts the
applicant had not disputed his Tunisian nationality: he had only stated before
the District Court that he had not been aware before the criminal proceedings
against him that he also had Tunisian nationality.
34. The deprivation of the applicant’s Danish citizenship was the
consequence of his conviction for a very serious terrorist offence, which by
its very nature had been highly detrimental to the country’s vital interests.
The Government disagreed with the applicant’s view that Article 7 of the
European Convention on Nationality did not authorise deprivation of
nationality for an act of terrorism. They referred,
inter alia,
to the preamble
to the Council of Europe Convention on Prevention of Terrorism (see
paragraph 25 above) and pointed out that terrorism constituted a threat to
democracy, the enjoyment of human rights and the social and economic
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development. It was common in the legislation of European States that acts
of terrorism were perceived to be against the vital interest of the State and
could lead to deprivation of nationality.
35. In the present case, the decision had been in accordance with the law
and the applicant had been afforded the relevant procedural safeguards. The
authorities had acted diligently and swiftly. The decision had been necessary
in a democratic society and did not amount to a disproportionate interference
with the applicant’s private and family life.
36. In respect of both the decision to deprive the applicant of his Danish
nationality and the expulsion order, the Supreme Court had thoroughly
assessed the applicant’s personal circumstances in accordance with the
principles set out by the Court, and had been very careful to strike a fair
balance between the competing interests.
37. The applicant maintained that both the decision to strip him of his
Danish citizenship and the expulsion order from Denmark were in violation
of Article 8.
38. As to the deprivation of his Danish citizenship, he submitted that the
Tunisian authorities had at no point during the criminal proceedings, or after
his release, confirmed that he actually held Tunisian citizenship. On the
contrary, they had not been able to identify the applicant as a Tunisian
national (see paragraph 17 above). Depriving him of his Danish citizenship
would thus make him stateless.
39. He also maintained that Article 7 of the European Convention on
Nationality set out an exhaustive list of reasons for deprivation of nationality,
and that the notion of “vital interests of the State” did not include criminal
offences of a “general nature, however serious they might be”.
40. He further pointed out that this was the first time the Court was called
upon to assess the deprivation of the citizenship of someone who, like him,
had acquired it at birth. In his opinion, the present case should thus be
distinguished from previous case-law on deprivation of nationality, including
Ghoumid v. France,
nos. 52273/16 and 4 others, 25 June 2020.
41. With regard to the expulsion order against him, the applicant
considered that the Supreme Court had failed to take into account that he had
had several jobs until 2011, that he had had no criminal record before the
crime at issue, that he had studied for more than two years, from the time of
his return from Syria in February 2014 until he was arrested in June 2016,
and that he had showed good behaviour during the ensuing period until
19 November 2018, when the Supreme Court passed judgment, and
subsequently to his release. He also pointed out that although his crime had
been serious, he had not been convicted of planning or performing any
terrorist attack or actions.
42. The European Centre for Law and Justice (ECLJ), adhering to the
arguments put forward by the Government, found that the decision to revoke
the applicant’s citizenship and to expel him were compliant with Article 8 of
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the Convention. It added,
inter alia,
with reference to Article 5 of the
European Convention on Nationality, that persons born with a specific
nationality should be treated on an equal footing with persons who acquired
such nationality later in life. Accordingly, the applicant should not enjoy
preferential treatment because he was born a Danish citizen.
43. The ECLJ also invited the Court to add the following two criteria to
its assessment under Article 8 of the Convention: 1) the stability of society in
the host country, in particular its capacity to incorporate the applicant into its
social, economic and cultural life, and 2) the degree of difficulty which the
host country is likely to encounter in removing the applicant from the
environment which had led him to commit the crimes in question.
B. The Court’s assessment
1. Deprivation of citizenship
44. The Court reiterates that although the right to citizenship is not as such
guaranteed by the Convention or its Protocols, it cannot be ruled out that an
arbitrary denial of citizenship might in certain circumstances raise an issue
under Article 8 of the Convention because of the impact of such a denial on
the private life of the individual (see, for example,
Ramadan v. Malta,
no. 76136/12, § 62, 21 June 2016, and
Genovese v. Malta,
no. 53124/09, § 30,
11 October 2011).
45. The Court has considered that the same principles must apply to the
revocation of citizenship that has already been obtained. Moreover, it has
confirmed that nationality is an element of a person’s identity (see,
inter alia,
Usmanov v. Russia,
no. 43936/18, § 53, 22 December 2020 and
Ghoumid and
Others v. France,
no. 52273/16 and 4 others, §§ 43-44, 25 June 2020). In
determining whether a revocation of citizenship is in breach of Article 8, the
Court addresses two separate issues: whether the revocation was arbitrary,
and what the consequences of revocation were for the applicant (see, for
example,
Ahmadov v. Azerbaijan,
no. 32538/10, § 43, 30 January 2020;
Alpeyeva and Dzhalagoniya v. Russia,
nos. 7549/09 and 33330/11, § 108,
12 June 2018;
Mansour Said Abdul Salam Mubarak v. Denmark
(dec.),
no. 74411/16, § 62, 22 January 2019; and
K2 v. the United Kingdom
(dec.),
no. 42387/13, § 49, 7 February 2017).
(a) Arbitrariness
46. In determining arbitrariness, the Court should examine whether the
impugned measure was in accordance with the law; whether it was
accompanied by the necessary procedural safeguards, including whether the
person deprived of citizenship was allowed the opportunity to challenge the
decision before courts affording the relevant guarantees; and whether the
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authorities acted diligently and swiftly (see, among others,
Usmanov
v. Russia,
cited above, § 54).
47. The decision to deprive the applicant of his Danish citizenship was
based on section 8b of the Act on Danish Nationality (see paragraph 20
above). The Court notes that the applicant has called into question whether
this provision is compatible with Article 7 of the European Convention on
Nationality (see paragraph 39 above). However, the Court does not consider
it necessary to examine this question. The Court recalls in this context that it
is competent to apply only the European Convention on Human Rights, and
that it is not its task to interpret or review compliance with other international
conventions as such (see,
inter alia, Somogyi v. Italy,
no. 67972/01, § 62,
ECHR 2004-IV;
V.C.L. and A.N. v. the United Kingdom,
nos. 77587/12 and
74603/12, § 113, 16 February 2021; and
K.I. v. France,
no. 5560/19, § 123,
15 April 2021). Therefore, Court is satisfied by the clarity of the domestic
law and can therefore conclude that the decision was “in accordance with the
law” (see also,
Mansour Said Abdul Salam Mubarak v. Denmark
(dec.), cited
above, § 64).
48. The applicant had an opportunity to contest the prosecuting
authorities’ request to strip him of his Danish citizenship before the domestic
courts at three levels of jurisdiction, and he has not alleged any procedural
shortcomings in this regard. Accordingly, the applicant was afforded the
procedural safeguards required by Article 8 of the Convention (see,
a
contrario, Usmanov,
cited above § 66).
49. The Court is also satisfied that the authorities acted diligently and
swiftly. It observes that in spring 2016 the Danish Security and Intelligence
Service received information from Interpol, leading to the applicant’s arrest
on 7 April 2016. On 26 October 2017 the applicant was convicted by the
District Court. The judgment was upheld by the High Court on 20 April 2018.
On 19 November 2018, the Supreme Court overturned the decision by the
District Court and the High Court.
50. Finally, the revocation of the applicant’s Danish citizenship was the
consequence of his conviction of a very serious terrorist crime under
articles 114c(3) and 114d(3) of the Penal Code. The deprivation of his Danish
nationality complained of was thus to a large extent a result of the applicant’s
own choices and actions (see,
inter alia, Ramadan v. Malta,
cited above,
§ 89). Moreover, as the Court has underlined on numerous occasions, terrorist
violence, in itself, constitutes a grave threat to human rights. Accordingly, the
Court considers it legitimate for Contracting States to take a firm stand
against those who contribute to terrorist acts, which it cannot condone in any
circumstances (see, for example,
Ghoumid,
cited above, § 50, and the
references mentioned therein).
51. The Court therefore concludes that the decision of the Supreme Court
to deprive the applicant of his Danish citizenship was not arbitrary.
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(b) Consequences of the revocation
52. In determining the consequences of the revocation, the Court has
never stipulated a list of elements that have to be taken into account. Nor has
it applied a proportionality test similar to the test to be applied in expulsion
cases (compare § 75 below). Instead, referring to its previous case-law, when
making a concrete assessment of the consequences, the Court has taken a
number of elements into account.
53. Thus, the Court has assessed whether the revocation of nationality
rendered the applicant stateless (Alpeyeva, cited above, § 112;
Ghoumid,
cited
above, § 50;
Ramadan,
cited above, § 92;
K2,
cited above, § 62; and
Mansour
Said Abdul Salam Mubarak,
cited above, § 69); or deprived the applicant of
any legal status (Alpeyeva, § 112; and
Usmanov,
cited above, § 59); or
whether it left the applicant without any valid documents (Alpeyeva, § 113
and
Usmanov,
§ 60).
54. The Court has also taken into account whether the revocation led to
expulsion or made continued stay in the country uncertain (Ghoumid § 49 and
Ramadan
§ 90). However, in respect of expulsion or risk of expulsion, the
Court has never found that such, in itself, rendered a revocation of nationality
in violation of Article 8 of the Convention. Furthermore, when assessing
expulsion or risk of expulsion, the Court has had regard to the nature and
seriousness of the offence and the risk posed to society (Ghoumid, § 50),
when nationality was acquired (ibid.), whether the applicant has left the
country voluntarily (K2, § 62) and whether revocation is a consequence of
the applicant’s own actions or choices (Ramadan, § 89).
55. Finally, the Court has considered whether the revocation of nationality
had considerable consequences for the applicant’s daily life (Alpeyeva, § 115)
or consequences for spouse or children (Ramadan, § 90 and
K2,
§ 62).
56. In the present case, the applicant submitted before the Court that the
Tunisian authorities had never confirmed that he held a Tunisian citizenship
and that therefore the deprivation of his Danish citizenship made him
stateless.
57. The Government pointed out that the applicant had not disputed his
Tunisian nationality before the domestic courts, and that it had been
confirmed by the facts of the case, including the discovery of a Tunisian
passport at his home.
58. The Court notes that the applicant’s nationality status was carefully
examined by the domestic authorities before the criminal proceedings against
the applicant commenced, and by the courts in three instances during the
criminal proceedings. It was found established that the applicant’s father and
paternal grandparents had all been Tunisian nationals, born in Tunisia, and
that according to Article 6(1) of the Tunisian Nationality Act, a person
acquires Tunisian nationality at birth if the father is a Tunisian national.
Moreover, it transpired from an email of 12 August 2016 from the Tunisian
Embassy in the Hague to the Copenhagen Police that a child acquires
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Tunisian nationality if the father is Tunisian and that it is irrelevant whether
the child has also acquired another nationality. Against that background, the
Ministry of Immigration and Integration considered it a fact that the applicant
had acquired Tunisian nationality at birth, and therefore had dual nationality.
Moreover, a Tunisian passport was found in the applicant’s home (see
paragraphs 11 and 17 above). Accordingly, the domestic courts at three levels
found it established that the applicant held dual nationality. The applicant has
not provided any evidence for the Court to reach a different outcome.
59. The Court notes in addition, that during the proceedings before the
Special Court of Revision (see paragraph 20 above) it transpired that
most
recently, on 14 September 2021, the Tunisian authorities had informed the
Danish authorities that “there could be no doubt that the applicant had Tunisian
citizenship” and that the “necessary judicial basis existed to allow the Tunisian
Ambassy to issue travel documents with a view to deporting the applicant to
Tunisia”.
60. In these circumstances, it must be concluded that the applicant was
not rendered stateless by the decision to deprive him of his Danish citizenship
(see also, among others,
K2 v. United Kingdom,
cited above, § 62).
61. The preparatory work on section 8b of the Act on Danish Nationality
set out that the assessment of whether to withdraw a person’s citizenship
should be based on a weighing of the seriousness of the offence and the
impact on the person concerned. Accordingly, the domestic courts carefully
assessed the consequences for the applicant of a revocation of his Danish
citizenship in the light of his ties with Denmark and Tunisia. The
considerations set out below will focus on the Supreme Court’s decision
depriving the applicant of his Danish citizenship.
62. The Supreme Court took account of the fact that the applicant was
born in Denmark, to a Danish mother and a Tunisian father, and that he had
acquired dual nationality by birth.
63. The Supreme Court found that the applicant had strong ties with
Denmark. He was raised and educated there. He spoke, read and wrote
Danish. He had lived on public benefits since 2011, that is, since the age of
twenty-one. He had never had a regular attachment to the Danish labour
market. His mother and siblings also lived in Denmark. He had married a
Danish woman in an Islamic wedding ceremony, and they had lived together
since 2009. They had a son who was born in January 2010.
64. The Supreme Court also considered that the applicant had ties with
Tunisia, and that his familiarity with Tunisian culture and lifestyle were not
insignificant. It noted that the applicant had been on holiday there for one to
two weeks about eight times prior to his 15
th
birthday and had lived there
from December 2005 to June 2006 when he was 15 years old. His father had
moved back to Tunisia in 2013 or 2014, although the applicant alleged that
he did not know whether his father still lived in the country. He last saw his
father in May 2016 when the latter visited him in prison. The applicant spoke
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and read Arabic, but he stated that it was sometimes hard for him to
understand the Tunisian dialect. He had attended a Muslim school in
Copenhagen. He stated that Islam meant everything to him and that he
practised Islam in his everyday life.
65. The Supreme Court further noted that if the applicant were to be
deprived of his Danish nationality, in general he would also be expelled,
unless the expulsion would be contrary to Denmark’s international
obligations (section 26(2) of the Aliens Act then in force, read in conjunction
with Article 8 of the Convention).
66. In conclusion, based on an overall balancing test, the Supreme Court
found that the deprivation of the applicant’s Danish nationality would not be
a disproportionate sanction.
67. The applicant submitted that the Supreme Court should have attached
decisive weight to the fact that he had acquired Danish nationality at birth and
that therefore the present case should be distinguished from previous case-
law on deprivation of nationality, including
Ghoumid and Others v. France,
(cited above), in which two of the applicants were born in France, but only
acquired French citizenship later in life.
68. In this respect the Court finds reason to emphasise that as opposed to
section 8b of the Act on Danish Nationality, and, for example, the
compatibility of an expulsion order with Article 8 of the Convention, the
compatibility of a withdrawal of a person’s citizenship is not based on a
balancing test of specific criteria, but on the requirement that two separate
issues have been addressed: whether the revocation was arbitrary, and what
the consequences of revocation were for the applicant (see paragraph 44
above).
69. In the present case, the Court is satisfied that the Supreme Court
diligently addressed the consequences of depriving the applicant of his
Danish citizenship.
70. Moreover, in the Court’s view, taking into account that the applicant
was convicted of serious terrorist offences, which themselves constituted a
serious threat to human rights, and which to a large extent showed his lack of
attachment to Denmark and its values (see,
mutatis mutandis, Ghoumid and
Others v. France,
cited above, § 50), the fact that the applicant in the present
case had obtained Danish nationality by birth does not significantly alter or
add to the consequences for the applicant.
(c) Conclusion
71. In view of the above, the Court is satisfied that the Supreme Court’s
assessment of the decision to revoke the applicant’s nationality was adequate
and sufficient, and does not disclose any appearance of arbitrariness or
omission with regard to the applicant’s arguments. Consequently, this part of
the application must be rejected as manifestly ill-founded within the meaning
pursuant to Article 35 § 3(a) and 4 of the Convention (see also
Ghoumid and
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Others v. France,
§§ 51-52,
K2 v. United Kingdom
(dec.), cited above, § 64;
and
Mansour Said Abdul Salam Mubarak v. Denmark
(dec.), cited above,
§ 71).
2. The order to expel the applicant from Denmark
72. The Court notes at the outset that the applicant was a Danish citizen
and could not as such be expelled (see also Article 3 § 1 of Protocol No. 4 to
the Convention). However, once he had been deprived of his nationality, it
became possible under domestic law to order the applicant’s expulsion,
provided that the conditions in domestic law was fulfilled and such order
would be compatible with Article 8 § 2 of the Convention.
73. The Court reaffirms that a State is entitled, as a matter of international
law and subject to its treaty obligations, to control the entry of aliens into its
territory and their residence there (see, among many other authorities,
Abdulaziz, Cabales and Balkandali v. the United Kingdom,
28 May 1985,
§ 67, Series A no. 94). The Convention does not guarantee the right of an
alien to enter or to reside in a particular country and, in pursuance of their
task of maintaining public order, Contracting States have the power to expel
an alien convicted of criminal offences. However, an interference with a
person’s private or family life will be in breach of Article 8 of the Convention
unless it can be justified under paragraph 2 of that Article as being “in
accordance with the law”, as pursuing one or more of the legitimate aims
listed therein, and as being “necessary in a democratic society” in order to
achieve the aim or aims concerned.
74. The Court has no doubt that there was an interference with the
applicant’s right to respect for his private and family life within the meaning
of Article 8, that the expulsion order was “in accordance with the law”, and
that it pursued the legitimate aim of preventing disorder and crime.
75. The relevant criteria to be applied, in determining whether an
interference is necessary in a democratic society, were set out in,
inter alia,
Üner v. the Netherlands
[GC] (no. 46410/99, §§ 54-55 and 57-58,
ECHR 2006-XII) and
Maslov v. Austria
[GC] (no. 1638/03, §§ 68-76,
ECHR 2008). They are the following:
“- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant’s stay in the country from which he or she is
to be expelled;
- the time elapsed since the offence was committed and the applicant’s
conduct during that period;
- the nationalities of the various persons concerned;
- the applicant’s family situation, such as the length of the marriage, and
other factors expressing the effectiveness of a couple’s family life;
- whether the spouse knew about the offence at the time when he or she
entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
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- the seriousness of the difficulties which the spouse is likely to encounter
in the country to which the applicant is to be expelled.
- the best interests and well-being of the children, in particular the
seriousness of the difficulties which any children of the applicant are likely
to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and
with the country of destination.”
76. As to the question of whether the interference was “necessary in a
democratic society”, the Court notes that the Danish courts’ legal point of
departure was the relevant sections of the Aliens Act, the Penal Code, and
notably the appropriate criteria to be applied in the proportionality assessment
under Article 8 of the Convention and the Court’s case-law. The Court
recognises that the domestic courts thoroughly examined each criterion and
that they were fully aware that very serious reasons were required to justify
the expulsion of the applicant, being a settled migrant, who had been born in
Denmark and had lawfully spent his whole childhood and youth in the host
country (see
Maslov,
cited above, § 75). The Court is therefore called upon
to examine whether such “very serious reasons” were adequately adduced by
the Supreme Court when assessing the applicant’s case.
77. In respect of the applicant’s right to respect for his private and family
life, the Supreme Court took the same factors into account as when assessing
the impact on the applicant of a revocation of his Danish citizenship.
78. That included the nature and seriousness of the offence committed by
the applicant, the length of the applicant’s stay in the country from which he
was going to be expelled, the nationalities of the various persons concerned,
and the solidity of his social, cultural and family ties with the host country
and with the country of destination. Thus, the Supreme Court took into
account, among other things, that the applicant was born in Denmark and had
been sentenced to four years’ imprisonment for serious offences committed
as an adult (see, also for example,
Levakovic v. Denmark,
no. 7841/14,
23 October 2018;
Balogun v. the United Kingdom,
no. 60286/09, 10 April
2012; and
Mutlag v. Germany,
no. 40601/05, 25 March 2010, although the
applicants’ family life were not at stake in those cases).
79. Regarding the criterion “the time elapsed since the offence was
committed and the applicant’s conduct during that period”, the applicant
maintained that the Supreme Court had failed to take into account the fact
that he had studied for more than two years, from the time of his return from
Syria in February 2014 until he was arrested in June 2016, and that he had
showed good behaviour until 19 November 2018, when the Supreme Court
passed its judgment. In the Court’s opinion, however, it cannot and should
not be ignored that the applicant was convicted of having accepted
recruitment and training by a terrorist organisation in the commission of
terrorist acts. Accordingly, it does not find any reason to criticise the fact that
the Supreme Court did not mention or give the applicant credit for not having
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pursued his criminal activity in this respect after his return to Denmark in
February 2014, up until his arrest in June 2016. The Court also notes that the
applicant was remanded in custody from June 2016 until the Supreme Court
passed its judgment on 19 November 2018, and that subsequently, he was
placed in mandatory accommodation at a pre-departure centre, pending
expulsion (see paragraph 19 above).
80. The expulsion order in the present case was issued together with a
lifelong ban on re-entry. The Court notes in this context that the duration of
a ban on re-entry is an element to which it has attached importance in its case-
law. In the present case, the Court is convinced that the applicant’s crime
leading to the expulsion order was of such a nature that he posed a serious
threat to public order (see also,
inter alia, Mutlag v Germany,
cited above,
§§ 61-62 and
Balogun v. the United Kingdom,
cited above, § 53).
81. As regards the applicant’s right to respect for his family life, the
Supreme Court observed that the applicant had married a Danish woman in a
religious ceremony in 2009. That was six years before the applicant left for
Syria and committed the offences at issue. Thus, the criterion of whether the
spouse knew about the offence at the time when he or she entered into a
family relationship does not come into play in the present case. With regard
to their relationship, however, it is noteworthy, as observed by the Supreme
Court, that the applicant left his family in Denmark at his own initiative, in
connection with the crime committed, in order to take up residence in a war
zone in Syria.
82. The Supreme Court also took into account the fact that the applicant
had a son, born in 2010. Regarding the criteria “the best interests and well-
being of the children, in particular the seriousness of the difficulties which
any children of the applicant are likely to encounter in the country to which
the applicant is to be expelled; and the seriousness of the difficulties which
the spouse is likely to encounter in the country to which the applicant is to be
expelled”, the Supreme Court emphasised that the applicant’s partner, who
had converted to Islam at the age of 18, and their 8-year-old son, who had
attended an Islamic school for a short period and had subsequently been
home-schooled by his mother, were not entirely unprepared for
accompanying the applicant to Tunisia. Moreover, if they did not wish to
settle in Tunisia, they could visit him there and communicate with him by
telephone and on the Internet.
83. In conclusion, the Supreme Court found that there were compelling
reasons to expel the applicant, and that respect for the applicant’s private and
family life in Denmark did not make the deprivation of his Danish nationality
and expulsion conclusively inappropriate.
84. Having regard to the foregoing considerations, the Court is satisfied
that the Supreme Court made a thorough assessment of the applicant’s
personal circumstances, carefully balanced the competing interests, took into
account the criteria set out in the Court’s case-law and explicitly assessed
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whether the expulsion order could be deemed contrary to Denmark’s
international obligations. “Very serious reasons” were adequately adduced by
the national authorities when assessing his case, and the expulsion order
cannot be said to be disproportionate to the legitimate aim pursued, namely,
the protection of the public from the threat of terrorism (see,
inter alia, K2
v. United Kingdom,
cited above, § 66;
Salem v. Denmark,
no. 77036/11, § 82,
1 December 2016
;
Hamesevic v. Denmark
(dec.), no. 25748/15, § 43, 16 May
2017;
Alam v. Denmark
(dec.), no. 33809/15, § 35, 6 June 2017; and
Ndidi
v. the United Kingdom,
no. 41215/14, § 76, 14 September 2017).
85. Consequently, this part of the application must also be rejected as
manifestly ill-founded within the meaning pursuant to Article 35 § 3(a) and 4
of the Convention.
For the reasons above, the Court, unanimously,
Declares
the application inadmissible.
Done in English and notified in writing on 3 March 2022.
Hasan
Bakırcı
Deputy Registrar
Carlo Ranzoni
President
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