Chapter 1: The Power to Deprive Citizenship of Rwandan-Dutch Genocide

Suspects

Introduction
Citizenship1 can be understood as a gateway right securing a collection of other basic human
rights. Depriving someone of their citizenship therefore has grave repercussions and should
not be taken lightly. This chapter will present the factual and contextual background on the
Dutch practice of depriving the citizenship of Rwandan-Dutch2 genocide suspects and the
repercussions of such deprivation for the individuals, on which this thesis’ analytical
reflections will be based. Firstly, this chapter will consider the practice, context, and
consequences of the denationalization. Then, the legal framework under which the
Netherlands deprives Rwandan-Dutch genocide suspects of their citizenship will be set out.
Finally, it will identify the existing procedural and substantive issues in the application of this
framework by scrutinizing a key appeal decision by the Dutch Council of State. [Two issues]

1.1. Applicable Domestic Legal Framework on Citizenship Deprivation

Before analyzing the practice of denationalizing Rwandan-Dutch genocide suspects, it is
important to understand the legal provisions based on which the IND decides to denationalize
a Rwandan-Dutch citizen for alleged involvement in genocide crimes. This section will
discuss three relevant provisions: Article 1 (f) Refugee Convention, and the domestic
interpretation in the Dutch Nationality Act (Rijkswet op het Nederlanderschap, hereafter
RWN), i.e., Article 14 (1) RWN by reference to Article 9 (1) (a) RWN.

1.1.1. International rule: Article 1(f) 1951 Refugee Convention

Article 1(f) sub (a) of the Refugee Convention excludes individuals from the scope of the
Convention where there are ‘serious reasons for considering’ that they have ‘committed a
crime against peace, a war crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such crimes’. The thought behind
Article 1(f) was twofold according to the UNHCR: ‘Firstly, certain acts are so grave that they
render their perpetrators undeserving of international protection as refugees. Secondly, the
1
Throughout this thesis, the term ‘citizenship’ and ‘nationality’ will be used interchangeably to refer to the legal
relation between a person and a state, as recognized under international law. This is because the terms nationality
and citizenship emphasize two different aspects (the national and the international) of the same notion: State
membership. From a rights-based perspective however, this distinction is arguably less important.
2
explanation
refugee framework should not stand in the way of serious criminals facing justice’. 3 Exclusion
from the Refugee Convention on grounds of Article 1(f) means that asylum is not granted, nor
it the applicant eligible for a regular residence permit.4

The expression ‘serious reasons for considering’ means that the applicant need not to have
been formally charged or convicted of any crime. The applicant’s criminality need not have
been established ‘beyond reasonable doubt’ by a judicial procedure’. 5 It is sufficient that the
adjudicating authority have ‘sufficient proof warranting the assumption of the claimant’s guilt
of such a crime.6 As this threshold is thus lower than the threshold for a criminal conviction,
the statement of an asylum seeker that he has worked for a certain unit or organization may
suffice, if ‘authoritative reports’ confirm that this unit or organization may have been
responsible for international crimes at the time of his employment’.7

Based on Article 1(f) asylum seekers can thus be denied refugee status if they are suspected of
committing a crime as specified in the article. However, to ensure that persons guilty of
severe crimes in their country of origin do not enjoy refugee status and possibly later Dutch
citizenship, Article 1(f) may also be considered at a later stadium. It is domestic legislation
which instrumentalizes Article 1(f) for the deprivation of citizenship through Article 14 (1)
RWN, which will be discussed in the next section.

1.1.2. Domestic interpretation: Article 14 (1) RWN by reference to Article 9 (1) (a)
RWN
Article 14 (1) RWN enables consideration of Article 1(f) when Dutch citizenship has already
been granted to the individual concerned through Article 9 (1) (a) RWN. Article 14 (1) RWN
was introduced on 1 April 2003 and allows for discretionary power of the minister to revoke
Dutch citizenship if there is ‘a false statement, deception or concealment of any fact relevant
to the granting of Dutch citizenship’. 8 It permits an assessment on whether information

3
UNHCR Background Note on the Application of Exclusion Clauses (2003, B3
4
https://www.bjutijdschriften.nl/tijdschrift/tijdschriftcriminologie/2011/4/TvC_0165-182X_2011_053_004_002
5
James C. Hathaway, The Law of Refugee Status (Markham, Ontario: Butterworths Canada
Ltd., 1991).
, 215.
6
James C. Hathaway, The Law of Refugee Status (Markham, Ontario: Butterworths Canada
Ltd., 1991).
, 215
7
file:///Users/evavanderwal/Downloads/Bolhuis_Middelkoop_vanWijk_Extradition_JICJ_2015.pdf, 1131.
8
https://cadmus.eui.eu/bitstream/handle/1814/19629/Netherlands2010.pdf, 30. f
grounding exclusion from refugee status according to Article 1(f) was withheld or
misrepresented at the time refugee status and Dutch citizenship was granted.

Citizenship may then be withdrawn by referral to Article 9 (1) (a) RWN which applies the
systematics of Article 1(f) Refugee Convention and states that a foreign national’s request for
Dutch citizenship will be denied if ‘based on the behaviour of the applicant, there are serious
suspicions that he poses a danger to public order, morality, or the security of the Kingdom’.
The rationale behind citizenship deprivation under Article 14 (1) RWN is that, if the
concealed information would have been known to the authorities, the individual’s request for
Dutch citizenship would have been denied under Article 9 (1) (a) RWN. The acquisition
thereof is therefore declared null and void.9 The difference between nullification and a
withdrawal procedure, is that nullification applies retroactively: the citizenship is never
assumed to have been acquired.10

Comparing Article 14 (1) RWN to Article 9 (1) (a) RWN, Article 9 (1) (a) refers to serious
suspicions, while Article 14 lacks such a reference. Therefore, it could be stated that it must
be certain that the person in question has concealed information to deprive the individual of
their residence Dutch citizenship. The Explanatory Memorandum does state that a conviction
is not necessary in order to apply Article 14 (1) RWN. However, one could also interpret from
this Memorandum that the decision maker must take into consideration whether the evidence
is such that a criminal conviction can follow. This follows from the paragraph in which a
distinction is made between surfaced information that could have nationality law
consequences as well as residence law consequences, and cases in there should only be a
measure according to nationality law. The Explanatory Memorandum then reads that ‘insofar
as it concerns data which are not directly relevant for the right of residence, those
consequences will depend primarily on whether and to what extent the person will be
convicted of an offence for that reason.’

Under revocation grounds Article 14 (2) to (4) RWN, Dutch citizenship cannot be withdrawn
is statelessness is the result. However, Article 14 (8) RWN provides that statelessness can
nonetheless be a consequence for persons who are stripped of their citizenship for reason of
having acted in a manner according to Article 14 (1) RWN. The personal scope of application

9
http://aei.pitt.edu/59227/1/No_75_ILEC_Loss_of_citizenship_final_MAP.pdf, 19.
10
http://aei.pitt.edu/59227/1/No_75_ILEC_Loss_of_citizenship_final_MAP.pdf, 19.
of Article 14 (1) RWN is therefore not limited to dual nationals, as with the other grounds of
revocation. In establishing this exemption, the government reasoned that otherwise, the effect
of Article 14 (1) could be frustrated as the person in question could renounce their old
nationality.11

In the interests of legal certainty withdrawal is, however, not possible if a period of twelve
years has elapsed since citizenship had been granted, unless there has been a conviction for
the crimes of genocide, crimes against humanity, or war crimes.12 After revocation the person
is regranted the status of a foreign national within the meaning of the Dutch Aliens Act. 13
Whether they still have the right to residence depends on when they acquired Dutch
citizenship. Those awarded citizenship before 1 April 2003 cannot rely on their previous
residence permit, while those granted citizenship after 1 April 2003 can depend on their prior
permanent asylum residency status if their citizenship is withdrawn. 14 Revoking this residency
requires a separate decision by the minister.15

1.2. Denationalization of Rwandan-Dutch Genocide Suspects

Since 2008, the Dutch government has been systematically and retrospectively investigating
Rwandan-Dutch citizens of their right to nationality and residence and withdrawing these
when there are serious suspicions that they have engaged in war crimes during the genocide in
1994. Although denationalizing and subsequently extraditing international war criminals
seems important and helpful in the fight against impunity, this practice has been subject to
extensive criticism. This section will first discuss the context in which the Netherlands
denationalizes Rwandan-Dutch citizens, to then problematize the practice itself in light of the
consequences for the concerned individuals. [Two issues]

1.2.1. The ‘programmatic approach Rwanda’ by Taskforce International Crimes

11
https://puc.overheid.nl/ind/doc/PUC_10091390000_1/1/, 40.
12
https://docplayer.nl/41032119-Identiteitsfraude-en-de-toepassing-van-artikel-14-lid-1-rijkswet-op-het-
nederlanderschap.html, file:///Users/evavanderwal/Downloads/Wijz.%20Rijkswet%20op%20het
%20Nederlanderschap%20m.b.t.%20meervoudige%20nationaliteit%20en%20andere
%20nationaliteitsrechtelijke%20kwesties%20(31%20813%20(R1873))%20(voortzetting).pdf p 11.
13
https://migratieweb.stichtingmigratierecht.nl/system/files/document/article_publication/
2017/01/2012_trendrappportage_naturalisatie_en_optie_1_.pdf, 41.
14
https://open.overheid.nl/repository/ronl-dd93a819-49d1-45b5-83d2-81771d87693c/1/pdf/Gewitte
%20stukken%20deel%201%20tot%20en%20met%20deel%203.pdf, 2.
15
https://open.overheid.nl/repository/ronl-dd93a819-49d1-45b5-83d2-81771d87693c/1/pdf/Gewitte
%20stukken%20deel%201%20tot%20en%20met%20deel%203.pdf, 2.
The denationalization and extradition of Rwandan-Dutch genocide are part of the ‘chain wide
reinforcement program’ called Taskforce International Crimes (Taskforce) which focuses on
investigating and prosecuting international crimes. Under this program, the Dutch government
aims to fight impunity in an international context and prevent suspects of international crimes
from being granted asylum in the Netherlands.16

The Task Force does so in two manners. Firstly, they aim to prevent perpetrators of
international crimes from being granted a residence permit or Dutch citizenship in order to
prevent the Netherlands from becoming a ‘safe haven’ for war criminals. 17 Secondly, as the
IND reasons that this focus on prevention can never be flawless, in certain cases they
recognize only at a later stage that a person should never have been eligible for a residence
permit or Dutch citizenship in light of Article 1(f) Refugee Convention. 18 Their citizenship or
residence permit is therefore withdrawn. The rationale behind this policy is that the
acquisition of Dutch citizenship is based on false statements or on the concealment of a
relevant fact to the granting of Dutch citizenship. If these facts would have been known to the
authorities, the person concerned would have been excluded from refugee status and thus
Dutch citizenship.19

The denationalization of Rwandan-Dutch genocide suspects is an example of the

‘programmatic approach’ to international crimes as directed by the Task Force in the past
years.20 While the Netherlands had already been denationalizing Rwandan-Dutch genocide
suspects since 1999 in about ten cases, it was decided in 2008 to process all past asylum
applicants in which no 1(f) investigation had taken place. 21 As a result, 1(f) investigations
were bumped up to 30 from 2014.22 These individuals would be screened for possible 1(f)
indications.23

In such a 1(f) screening, the IND assesses whether there are serious reasons for considering
that the individual has committed genocide crimes. If it finds such serious reasons, the IND
withdraws their nationality on the basis that if this information would have been known at the
16
https://zoek.officielebekendmakingen.nl/kst-33750-VI-27.html, 1.
17
file:///Users/evavanderwal/Downloads/DGM.pdf, p. 31.
18
file:///Users/evavanderwal/Downloads/DGM.pdf, p. 31.
19
file:///Users/evavanderwal/Downloads/DGM.pdf, p. 31.
20
https://zoek.officielebekendmakingen.nl/kst-33750-VI-27.pdf, 8.
21
https://zoek.officielebekendmakingen.nl/kst-33750-VI-108.pdf, 3;
22
https://zoek.officielebekendmakingen.nl/kst-33750-VI-108.pdf, 3;
23
https://zoek.officielebekendmakingen.nl/kst-33750-VI-108.pdf, 3;
time of the asylum application and naturalization request, they would not have been granted
refugee status nor Dutch citizenship. 24 The way in which the government arrives at its
suspicions that the individual has committed genocide crimes has been subject to extensive
criticism.25 The next section will demonstrate these issues based on a decision by the Council
of State (CoS).

1.2.2. The Council of State on the denationalization of Rwandan-Dutch genocide

suspects
On 20 January 2021, the CoS ruled on the lawfulness of the IND’s decision to deprive the
applicant (hereafter: A) with Rwandan-Dutch nationality of her Dutch citizenship. Following
an investigation conducted by the IND in 2016, the Secretary of State concluded that there
were serious grounds to believe that she had been guilty of participation in the genocide in
Rwanda and that she had concealed this when granted Dutch granted. The case of A was
subject to extensive criticism, denunciating the CoS’s disregard of the lack of procedural
safeguards in reversing naturalization, particularly considering the possible dire consequence
of statelessness.

1.2.2.1. The IND’s Withdrawal Decision

A resided in the Netherlands since 20 March 1998 and was granted Dutch citizenship in 2009,
after which she states she renounced her Rwandan citizenship. By reference to Article 1(f)
Refugee Convention. The Secretary of State associated A with preparing attacks on, killing
and ordering the killing of persons of Tutsi origin. The Secretary of State had accrued this
information from an individual official report. This report revealed that several sources
confirmed A’s partaking in the Mouvement Révolutionnaire National pour le Dévelopment
and the Interahamwe, the ruling Hutu-dominated political party in Rwanda from 1975 to 1994
and a key player in the 1994 genocide. The sources stated that A provided medical assistance
to Tutsis at the health center only to then have these people killed by the Interahamwe or
forcing a miscarriage causing their death in one instance. The IND withdrew her citizenship
under Article 14 (1) RWN as she had concealed this information and if this information would
have been known to the Secretary of State at the time of naturalization, her request would
have been denied based on Article 9 (1) (a) RWN. When assessing the IND’s decision, three
issues can be identified which will now be discussed.
24
https://migratieweb.stichtingmigratierecht.nl/system/files/document/verdict/2021/01/
ve21000167__20_01_2021__abrvs__201907911_1_v6__ecli_nl_rvs_2021_114.pdf, 9..2
25
See for example…
 I. Standard of proof
Standard of proof in civil vs criminal cases.

[Why is this problematic]

With regard to suitability, it must be questioned whether, given the seriousness of the
sanction, denationalisation should indeed take effect through administrative law. Bauböck and
Paskelev (2015, 72–3) argue that it should instead be administered through the criminal law
system, as it is better equipped to weigh the burden imposed on the individual against the
societal harm to be prevented. This would also imply CITIZENSHIP STUDIES 327 a higher
standard of proof and better juridical review, which would be appropriate given the
seriousness of the measure. Relying on criminal law and its appeal system would significantly
reduce any fair trial and double jeopardy concerns, and remedy issues related to the high
degree of discretion currently enjoyed by the Minister.11 After all, the lack of involvement of
criminal courts raised due process and judicial review concerns during the debate in the Dutch
Lower House (Tweede Kamer 2016, esp. positions of D66 and GL).26

II. Secret evidence

In its decision to renounce A of her Dutch citizenship, the IND relied heavily on the individual
official report. This type of report is often used in 1(f) cases as evidence of the sufficient
plausibility that the foreign national has engaged in 1(f) conduct and concealed this
information.27 Such a report is gathered via the diplomatic representation in the country in
question, in this case Rwanda,28 and are based on the work done at the bilateral post and
research conducted by Confidential Advisors.29

Much of the information containing in the individual report is inaccessible for the individual
concerned as the Ministry of Foreign Affairs invariably invokes the confidentiality of
information which relates to the methods and techniques of investigation used in the official

26
https://www-tandfonline-com.vu-nl.idm.oclc.org/doi/pdf/10.1080/13621025.2019.1616448, 328.
27
https://www.nationaleombudsman.nl/uploads/achtergrondinformatie_ambtsberichten.pdf
28
https://www.nationaleombudsman.nl/uploads/achtergrondinformatie_ambtsberichten.pdf
29
https://www.nationaleombudsman.nl/uploads/rapport2007-200.pdf, 15.
notice investigation as well as the identity of the Confidential Advisors.30 This information is
thus crossed out from the underlying documents provided to the individual concerned, the
IND, and the court, which limits their ability to prepare a proper defense.31

According to research conducted by the National Ombudsman, the Ministry of Foreign

Affairs not only withholds the name and function of the Confidential Advisor, or matters
relating to the date on and place at which surveys were conducted, but also descriptions of the
work performed for the purpose of the report; reasons why submitted document by the
individual was found to be false or inauthentic; any reference to the expertise and
qualifications of the Confidential Advisors; the manner in which these Confidential Advisors
were appointed; and explanations on why certain matters ‘could not be confirmed’. 32
According to the Ombudsman, the Ministry withholds information to such an extent that any
reasonable justification for the report can no longer be identified.33

This systematic crossing out of information is particularly problematic in light of the arguably
varying quality of the official reports. In its investigation, the National Ombudsman
concluded in 2007 that the Ministry of Foreign Affairs does not always establish official
reports carefully in asylum cases and notes that the way in which the IND makes use of these
reports indicates bias.34 While the criticism of the quality of these reports has diminished over
the last years and Vluchtelingenwerk Nederland has recognized that the quality of the reports
has improved, the use of individual reports has nonetheless been criticized. The establishment
of individual reports on Rwanda have been labelled as inaccurate and unreliable due to lack of
due regard to cultural and political specificities such as the Rwandese oral storytelling culture,
their indirect communication style, and the perception of truth.35

30
https://www.nationaleombudsman.nl/uploads/rapport2007-200.pdf, 45.
31
https://www.nationaleombudsman.nl/uploads/rapport2007-200.pdf, 45.
32
https://www.nationaleombudsman.nl/uploads/rapport2007-200.pdf, 31.
33
https://www.nationaleombudsman.nl/uploads/rapport2007-200.pdf, 6.
34
Dossier kwaliteit individuele ambtsberichten 2007/200. Te vinden op:
http://www.nationaleombudsman.nl/rapporten/2007/200, p. 31-40. ;
file:///Users/evavanderwal/Downloads/Position%20paper%20C.%20Buisman%20t.b.v.
%20rondetafelgesprek%201F%20d.d.%209%20juni%202022.pdf, 1. ; see also
http://www.nonfixe.nl/afrisinia/vrijheid-gelijkwaardigheid-en-solidariteit-maar-niet-voor-
asielzoekers-2/
35
https://www.njb.nl/media/4276/brouwer-njb-ambtsbericht-rwanda-2016-lang-v4-synchron-accepted.pdf, 2.
The secret evidence dilemma in :
https://journals.sagepub.com/doi/pdf/10.1177/0924051917737913?casa_token=OC9P-
L27cZYAAAAA:WI8InvBoeglLqM3FD6EmG57grmteB9jwxf6doqOcYqpivxAy4jHj65NaQ
4VnYB1DoqwEPdNwAxxL

The secret evidence dilemma

https://openresearch-repository.anu.edu.au/bitstream/
1885/23996/2/01_Goss_'To_the_Serious_Detriment_of_2014.pdf

https://www.amnesty.nl/content/uploads/2017/09/AMN_17_13_Rapport-paspoortmaatregel-
en-uitreisverbod_web.pdf over geheim bewijs

III. Statelessness
The use of secret evidence and the consequences this has on the A’s ability to prepare a
defense is particularly problematic in the context of the grave repercussions of withdrawal of
citizenship. In her appeal, A’ states that she has denounced the Rwandan nationality.
Therefore, withdrawing her Dutch citizenship would leave her stateless. This has grave
consequences on her ability to exercise their human rights. Citizenship can be understood as a
legal status essential for the enjoyment of a range of civil, political, economic, and social
rights that are often tied to nationality at the domestic level.36 Once this citizenship is deprived
and the individual becomes stateless, they therefore struggle to access these human rights as
they are ineligible to vote and participate in political processes, unable to obtain travel
documents and unable to access a range of government services such as education and
healthcare, and employment.37 Moreover, stateless persons are often marginalized, excluded,
discriminated against, and are unable to participate in society. 38 Their lack of nationality
makes stateless persons among the most vulnerable in the world. 39 For these reasons, UNHCR

36
52, Th e Right to have Rights as Nationality – MORE SOURCES THAT FROM AN
INTERNATIONAL PERSPECTIVE YOU ENJOY FULL RANGE OF RIGHTS; UN HRC,
‘Human rights and arbitrary deprivation of nationality’, UN Doc. A/HRC/RES/20/5, 16 July 2012, para. 6.The
meaning of nationality in international law in an era of human rights Alice Edwards

37
http://hr.law.vnu.edu.vn/sites/default/files/resources/what_is_statelessness.pdf, 4.
38
https://journals.sagepub.com/doi/epub/10.1177/0924051917722222, no page numebr
39
https://journals.sagepub.com/doi/epub/10.1177/0924051917722222, no page number
refers to statelessness as a ‘curse’.40 For this reason, it is vital to maintain due safeguards in
order to prevent arbitrary deprivation.

I.3.2.2. The CoS Decision

In its decision, the CoS confirmed the lawfulness of the decision by the Secretary of State to
deprive A of her nationality. This section will discuss how the CoS addressed the raised
issues.

I. Standard of proof
The CoS ruled that a withdrawal decision on the basis of Article 14 (1) does not require that
A’s involvement in the genocide must be proven, as it follows from the Explanatory
Memorandum that a conviction is not required. The Secretary of State may withdraw A’s
citizenship because she would not have obtained Dutch citizenship if the currently known
information about her involvement in the genocide had been known to the authorities at the
time, because there would then have been serious suspicions that she posed a danger to public
order, public morals, or the security of the Kingdom as referred to in Article 9 (1) (a) RWN.
The CoS states that applying the systematics of 1(f) Refugee Convention through Article 9 (1)
(a) RWN on whether to grant citizenship is in conformity with the RWN and the instructions
of Article 14 (1) RWN on deprival of citizenship and therefore not contrary to the principle of
legal certainty. The CoS further rejected A’s argument that involvement in the genocide must
be based on objective data as follows from the CJEU case Glencore, stating that Glencore
concerned a different matter, namely the burden of proof in light of the VAT system.

According to domestic jurisprudence, these official notices can be qualified as expert opinions
and therefore their accuracy may be assumed in principle,41 provided that those official reports
are impartial, objective, and insightful and unless concrete indications exist for doubting the
validity or accuracy of the official report.42

II. Secret evidence

40
NHCR. (2014a) A Special Report: Ending Statelessness within 10 Years. United Nations
High Commissioner for Refugees. [Online] Available from: www.unhcr.org/546217229.html
[Accessed 3 February 2016], p. 2.
41
Zie bijvoorbeeld ABRvS 23 juni 2014, ECLI:NL:RVS:2014:2382, ABRvS 16 juli 2016,
ECLI:NL:RVS;2016:2171, ABRvS 20 januari 2021, ECLI:NL:RVS:2021:114, JV 2021/,53
m.nt. de Groot.
42
ABRvS, 12 oktober 2001, ECLI:NL:RVS:2001:AD5964, paragraaf 2.3.4.
After having inspected the underlying individual official report, the Council of State
concluded that it follows from these documents that the District Court was right in ruling that
the individual official report was established in a careful manner. The Council of State
thereby rejected the argument that the Secretary of State did not consider the relevant political
and cultural factors, such as that A’s son is a famous political opposer of the Rwandan
regime, as well as the general criticism on the credibility of Rwandan witness statements due
to the Rwandese oral storytelling culture, their indirect communication style, and the
perception of truth. The District Court has not conducted a negligent investigation by
refraining from reviewing it considering the internal instructions of the Ministry of Foreign
Affairs for drafting individual official notices as argued by A, as this is not within the scope
of review of the District Court. The District Court only reviews the report on their diligence
and conclusion and assessed whether the content of the report can be supported by the
underlying documents.

The Council of State ruled the requirement under Article 47 EU Charter, i.e., that the Court
should ensure that closed evidence underlying a decision is limited to what is strictly
necessary, was complied with. The restriction on access to documents underlying the
individual official notice is therefore justified.
No consideration of the proportionality of non-disclosure was made.

III. Statelessness
Regarding the issue of statelessness, the CoS notes that, according to the documents
submitted, A has been unable to renounce her Rwandan nationality because she did not dare to
go to the Rwandan Embassy because of her criminal conviction in Rwanda. However, the
CoS states that if she would become stateless because of the withdrawal of her Dutch
nationality, the interest of the Dutch state given the seriousness of the concealed facts,
prevails over her interest in retaining Dutch citizenship.

While A argued that the Court that Article 8 ECHR should be taken into consideration when
withdrawing Dutch citizenship, the CoS ruled that this article only comes into play in
exceptional circumstances, i.e., when the withdrawal of nationality is arbitrary. As the Court
argued this is not the case hear, Article 8 ECHR did not have to be taken into consideration.
The CoS further ruled that the consequences of losing her rights as a Union citizen are so
great that the withdrawal of her Dutch citizenship is disproportionate in relation to the
interests to be served thereby, as her possibilities of visiting her family in the Netherlands are
not exclusively regulated by EU law, but also Dutch law.

Conclusion
Chapter 2: Citizenship Deprivation in light of the ECHR

Introduction
in principle a domestic issue, the expulsion of non-citizens has been influenced significantly
by international human rights law. As a result, States Parties to the European Convention on
Human Rights no longer enjoy absolute and uncontrolled discretion in immigration policy and
have to exercise it consistently with the obligations expressed in the Convention. The ECHR
requires that State Parties tailor their immigration laws to respect human rights.43

2.1. Legal standards on secret evidence

43
https://journals.sagepub.com/doi/pdf/10.1177/0924051917737913?casa_token=OC9P-
L27cZYAAAAA:WI8InvBoeglLqM3FD6EmG57grmteB9jwxf6doqOcYqpivxAy4jHj65NaQ4VnYB1DoqwEPdNwAxxL,
231.
As stated in the introduction of this chapter, Chapter 1 identified three key issues in the
practice denationalizing Rwandan-Dutch genocide suspects, among which the use of secret
evidence. The purpose of this section is to explore to what extent States may be justified to
refuse to disclose evidence which constitutes grounds for a citizenship deprivation decision,
without violating this individual’s procedural rights.

2.1.1. Overview of provisions

Looking at the Convention, one of the difficulties in trying to generalize its position in
relation to closed materials is that the exact content and scope of procedural ECHR rights is
contingent upon several factors. The degree of protection varies depending on the applicable
provision.

I. Article 6 ECHR
Article 6 (1) ECHR recognizes the broader procedural right to fair trial which implies access
to court. The first part of this article reads: ‘In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal established by law’.
The article is silent on the exact content of a ‘fair trial’. From jurisprudence, however, it is
clear that the article safeguards the right to access to Court,44 the right to adversarial
proceedings, equality of arms, the lawfulness of the evidence used and motivation of
decision.45 These principles cannot always be rigidly separated but have at least in common
that they fall under the right to a fair trial. For the ECtHR, the starting point is that the
‘procedure as a whole’ must meet the requirements of a fair trial. 46 This means that violations
of Article 6 ECHR can be remedied in the course of the national proceedings.47

Article 6 ECHR only covers a limited range of situations. It applies when a person’s civil
rights and obligations or a ‘criminal charge’ against him are being determined.If the case is
under domestic criminal law, the criminal character of the proceedings seems to be clear.
44
Golder v UK
45
Vgl. Alkema, 1999, p. 46 en Barkhuysen, Damen e.a. 2007, p. 106;
https://migratieweb.stichtingmigratierecht.nl/system/files?file=document/article_publication/
2017/11/masterthesis_m.s._krikhaar_publicatieversie.pdf&check_logged_in=1, 36.
46
EHRM 18 maart 1997 (Mantovanelli).
47
Zie bijvoorbeeld EHRM 20 mei 1998 (Gautrin and Others).
According to the ECtHR’s test developed in Engel a ‘criminal charge’ is determined by the
legal classification of the offence or penalty in national law; the very nature of the offence’
and the degree of severity of the penalty. 48 Whether Article 6 ECHR is applicable, is then
dependent on whether the measure meets the Engel-test.

Problems arise, however, in great areas such as administrative sanctions. 49 As far as the
former category is concerned, the European Court of Human Rights has adopted a private law
conception of the word ‘civil’, meaning that rights and obligations relating to ‘the hard core of
public-authority prerogatives’ fall outside of the scope of civil rights and obligations. 50 Such
public law rights include decisions regarding the entry, stay and deportation of aliens. 51 The
right to nationality too, may be considered to be public in nature, because of the essentially
public character of the relationship it establishes between the individual and the state. 52
However, the ECtHR has held the right to access to a court must be linked to the existence of
a legal dispute whose resolution should affect the determination of civil rights or obligations.
It is not necessary that the proceedings have as main point that determination. It is thus
enough if the resolution of the proceedings may relate to the determination of the right or the
obligation, their exercise, or their fulfilment. 53 In administrative proceedings, the approach of
the European Court of Human Rights has thus been that Article 6 applies to administrative
proceedings only where they are ‘decisive’ of an individual’s private law rights.54

[1] Engel and Others v. the Netherlands, 8 June 1976, § 82; Escoubet v. Belgium, 28
48

Oct. 1999, § 32.

Right to a fair trial (Article 6) and right to an efectiv eremedy (Article 13) diego boza
49

Martinez
, 119.
50
Ferrazzini v. Italy, 12 July 2001, § 29;
https://kluwerlawonline.com/api/Product/CitationPDFURL?file=Journals\EURO\
EURO2017005.pdf, 80.

Maaouia v. France, 5 Oct. 2000, §§ 37–38; Ferrazzini v. Italy, above n. 139, § 28;
51

Mamatkulov and Askarov v. Turkey, 4 Feb. 2005, § 82

52
https://kluwerlawonline.com/api/Product/CitationPDFURL?file=Journals\EURO\EURO2017005.pdf, 81.
53
file:///Users/evavanderwal/Downloads/9789004465695-BP000006.pdf, 120.; Rasmussen v Denmark,
Application no. 8777/79 (ECtHR, 28 November 1984), para 32;
file:///Users/evavanderwal/Downloads/9789004465695-BP000006.pdf, 120. ; Ringeisen v Austria, Application
no. 2614/65 (ECtHR, 16 July 1971), para 94.
54
https://files.justice.org.uk/wp-content/uploads/2015/07/06170840/Secret-Evidence-10-June-
2009.pdf
, p 32-33
With regard to immigration law proceudres, the ECtHR has so far been reluctant to apply the
standards of Article 6 (1) ECHR, stating in Maaouia that ‘Decisions regarding the entry, stay
and deportation of aliens do not concerns the determination of an applicant’s civil rights or
obligations or of criminal charge against him, within the meaning of Article 6 (1) of the
Convention”. An important reason for this conclusion by the ECtHR was the adoption of the
7th Protocol to the ECHR by the Contracting States, which explicitly deals with the protection
of aliens in expulsion cases.55
While the ECtHR has ruled that Article 6 ECHR does not apply to immigration, the terms
‘civil rights and obligations’ has left a wide range for creative interpretation. In
Pomiechowski v District Court of Legunica, the UK Supreme Court argued that the expulsion
of non-nationals is different from denationalization because nationals possess an entitlement
to enter and remain under common law and international law. Therefore, the Supreme Court
argued, as persons subject to denationalization were nationals with a right to residence, they
could also engage protection under Article 6 ECHR.

As stated, Article 6 ECHR also applies when a ‘criminal charge’ is being determined against
the individual. According to the ECtHR’s test developed in Engel a ‘criminal charge’ is
determined by the legal classification of the offence or penalty in national law; the very nature
of the offence’ and the degree of severity of the penalty. 56 The European Commission of
Human Rights has held that ‘proceedings concerning a person’s nationality do not determine
[…] a criminal charge’.57 However, scholars have argued that it can nonetheless not be
excluded that a denationalization order issued in the context of suspicion of war crimes may
occasionally meet the Engel-test. This, in fact, may vary from legal system to legal system.

De additionele waarborgen van artikel 6 leden 2 en 3 EVRM zijn niet van toepassing, het gaat
immers om een preventieve maatregel – en geen sanctie – die niet een even verregaande
bescherming wordt geboden als dat wanneer sprake is van een criminal charge.

Digital Borders and Real Rights : Effective Remedies for Third-Country

55

Nationals in the Schengen Information System

, 247.
56
[1] Engel and Others v. the Netherlands, 8 June 1976, § 82; Escoubet v. Belgium, 28
Oct. 1999, § 32.
57
See Galip v. Greece, n. 144; Zeibek v. Greece, n. 144.
Op de vraag wat moet worden verstaan onder een ‘fair trial’ als bedoeld in artikel 6 lid 1
EVRM is geen eenduidig antwoord te formuleren. Het uitgangspunt daarbij is volgens het
EHRM dat de procedure in zijn geheel aan de eisen van artikel 6 lid 1 EVRM dient te
voldoen. Daarbij is het mogelijk dat eventuele strijdigheden met het recht op een eerlijk
proces in de loop van de procedure kunnen worden hersteld.

II. Article 13 ECHR

The second relevant provision is Article 13 ECHR which stipulates that ‘[e]veryone whose
rights and freedoms as set forth in [the ECHR] are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been committed by persons
acting in an official capacity’. Article 13 ECHR thus requires the availability of an effective
remedy at the national level to enforce the substance of the Convention guarantees. The
authority providing the remedy, unlike under Article 6 ECHR, need not be a judicial
authority58 and it is possible that, although no single remedy itself entirely satisfied the Article
13 requirements, ‘the aggregate of remedies provided for…may do so’. 59 More important than
the forum or the means of justice is the question of whether the remedy is effective ein the
sense that it ‘could have prevented the alleged violation occurring or continuing or could have
afforded the applicant appropriate redress for any violation that had already occurred’. 60
Effectiveness must exist both in practice and in law.61

The scope of the right very much depends on the nature of the complaint as Article 13 ECHR
cannot be raised independently. It requires an ‘arguable claim’ of a violation of another right
in the Convention.62 Hence, the right does not necessarily give rise to a right of disclosure.
However, various other provisions such as Article 8 ECHR on the right to family and private
life have been held to have a procedural dimension such as the right to ‘some form of
adversarial proceedings before an independent body’.63 In those instances, Article 13 ECHR is

58
Leander v Sweden (1987) Series A no 166 para 77.
59
Leander v Sweden para 77
60
Ramirez Snachez v France, para 160
61
Rotaru v Romania para 67
62
M.S.S. v Belgium and Greece [GC], Application No. 30696/09 (21 January 2011).
63
Al- Nashif v Bulgaria (2003) 36 EHRR 37 at [132]
to be read and applied in the light of the requirements applicable under the relevant
provision.64

With regard to immigration law decisions, Article 13 ECHR has been applied in conjunction
with Article 8 with regard to refusal of admission or an expulsion order in bresch of the
applicant’s righ to life (sen, uner); with article 3 in expulsion cases (al-nashif, conka, chahal);
with article 4 of protocol no 4on the prhobition of collective expulsion (conka) and even
regarding the freedom of speech protected in article 10 echr (piermont).

It is important that for thw application of Article 13 Echr, the ECtHR does not find it
necessary to establish a violation of such a right either by national courts or by the ECtHR. It
is sufficient for the applicant to hacve an ‘arguable claim’ that there has been a breach of one
of the right or freedoms of the convention. 65 Furthermore, the ECtHR emphasized in several
judgments that the right to effective remedies should be interpreted in a flexible manner and
without excessive formalism.66 The ECtHR therefre accepted that, during the national
procedures, the claimant did not refer explicitly to his or her right under the ECHR which was
allegedly infringed. If the content of the claim covers this breach of human rights

454 europe of rights; compendiu

64
https://onlinelibrary.wiley.com/doi/pdf/10.1111/1468-2230.12155?casa_token=N-
ek6eRfP4kAAAAA:OCMd_ty2ll3rugRUpEfN_d2OiidHqhHLCYCy2qJkydgllynm1myCePPsWcycwR3lZ6HIzTHJXTjLto
hG, 922.
65
Silver and others v. the United Kingdom, 25 March 1983, no. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75;
7113/75; 7136/75 Series A 61
APA 7th Edition (American Psychological Assoc.)
Evelien Brouwer. (2008). Digital Borders and Real Rights : Effective Remedies for Third-Country Nationals in the
Schengen Information System. Brill | Nijhoff, 254

66
Cardot v. France, 19 March 1991, no. 11069/84, Series A, 200, § 34, Castells v. Spain, 23 April 1992, no.
11798/85 Series A, 236, § 27, Geouff re de la Pradelle v. France, 16 December 1992, no. Series A, 253-B, § 26
Evelien Brouwer. (2008). Digital Borders and Real Rights : Effective Remedies for Third-Country Nationals in the
Schengen Information System. Brill | Nijhoff, 254.
 II.1.2. ECtHR case law on the right to disclosure under Article 6 and 13 ECHR
The ECtHR does not conceive of the rights under Article 6 and 13 ECHR as absolute. Even in
the context of Article 6 (1) ECHR, the position is effectively that while the right to a fair trial
is absolute, ‘the constituent rights comprised, whether expressly or implicitly, within Article
6’ are not,67 although the ECtHR will assess whether the proceedings, as a whole, were fair. 68
Once this basic premise was accepted, it was not particularly difficult for the ECtHR to
embrace explicitly the idea that certain aspects of the right to a fair trial can be subject to
restrictions. Over time, the rights of witnesses69, national security,70 or even just the public
interest71 have all been held to constitute acceptable limits to Article 6 ECHR. The Court
justified this position by reference to the spirit of the Convention as a whole. Case law
suggests that the Court considers limits on Article 6 ECHR as bearing on the definition of the
right, i.e., as part of assessing what the right to a fair hearing actually requires in a given
circumstance.72 In other cases, the Court has explicitly used the language of ‘restrictions’ in
the more traditional sense of certain interests or rights being able to justify a departure from
what Article 6 would otherwise require.73

In Edwards and Lewis v. United Kingdom, the Court said: The entitlement to disclosure of
relevant evidence is not, however, an absolute right. In any criminal proceedings there may be
competing interests, such as national security or the need to . . . keep secret police methods of
67
The position was helpfully put in these terms in a domestic case. See Brown v Stott [2003]
1 AC 681, per Lord Steyn
68
See for example Doorson v the Netherlands (1996) 22 EHRR 330 at [67].
69
Doorson ibid at [70].
70
Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249
71
A v UK n 2 above at [205].
72
https://onlinelibrary.wiley.com/doi/pdf/10.1111/1468-2230.12155?casa_token=N-
ek6eRfP4kAAAAA:OCMd_ty2ll3rugRUpEfN_d2OiidHqhHLCYCy2qJkydgllynm1myCePP
sWcycwR3lZ6HIzTHJXTjLtohG, 923. ; See e.g.. Doorson v the Netherlands (Doorson),
73
Thus in Tinnelly, the Court held that right of access to a court is not an absolute right but
may be subject to limitations. See Tinnelly n 58 above at [72].
investigation of crime, which must be weighed against the rights of the accused. In some
cases it may be necessary to withhold certain evidence from the defence so as to . . . safeguard
an important public interest. Nonetheless, only such measures restricting the rights of the
defence which are strictly necessary are permissible under Article 6 § 1. Furthermore, in order
to ensure that the accused receives a fair trial, any difficulties caused to the defence by a
limitation on its rights must b sufficiently counterbalanced by the procedures followed by the
judicial authorities.74 Under this standard, there appears to be room for CMPs in some form.
The European Court of Human Rights used the language "strictly necessary," however the
British acts that authorize the use of CMPs have much lower thresholds. 14 5 In fact, the
"strictly necessary" standard is very similar to the "not possible by other means" language that
the government was able to avoid having placed in the 2013 Act

Restrictions on Article 13 ECtHR????

Bearing in mind that denationalization decisions are principally administrative in nature,

attention should be drawn to Recommendation (2004) 20 of the Committee of Ministers to
Member States on the judicial review of administrative acts.75 According to Articl4 © of the
Recommendation, and administrative body should make available to the court all documents
and information relevant to the case unless national law provides for exceptions in important
cases. The recommendation, invoking the jurisprudence of the European Court of Human
Rights, is reminiscent of the obligation to disclose all relevant administrative files and facts on
which the administrative acts is based as a requirement for a fair trial. 76 Additionally, the
Recommendation suggests that ‘in certain circumstances it should be possible to apply special

74
Edwards & Lewis v. United Kingdom, nos. 39647/98 and 40461/98, Eur. Ct. H.R. 16
(2004).

Recommendation (2004)20 of the Committee of Ministers to Member States on Judicial

75

Review of Administrative Acts (15 December 2004).

76
Art 62 of the Explanatory Memorandum as an integral part to the Recommendation
(2004)20 of the Committee of Ministers to Member States on Judicial Review of
Administrative Acts (15 December 2004).
protective measures to sensitive documents (for instance, where national security is at
stake)’.77 However, it does not specify these measures. Nevertheless, the case law of the
ECtHR concerning the use of secret evidence in expulsion proceedings can give some
guidance on how procedural rights and public interest can be reconciled.78

The use of secret evidence was a key issue in the landmark judgment Chahal v United
Kingdom.79 The Court found, inter alia, that procedural rights in the expulsion proceedings
were inadequate. Because the decision to expel Mr. Chahal was based on grounds of national
security, he had recourse only to a special advisory panel. In the hearing before that panel, the
applicant was denied both legal representation and full access to the reasons of his expulsion
decision. Moreover, he was not informed of the panel’s non-binding advice to the Home
Secretary either.80 The European Commission of Human Rights recognised that: ‘States enjoy
a wide margin of appreciation under the Convention where matters of national security are in
issue but was not satisfied that the grave recourse of deportation was in all the circumstance
necessary and proportionate’.81 On the issue of using secret evidence the ECtHR stressed that
it: ‘recognises that the use of confidential material may be unavoidable where national
security is at stake. This does not mean, however, that the national authorities can be free
from effective control by the domestic courts whenever they choose to assert that national
security and terrorism are involved’.82 It therefore held that Article 13 and 5 (4) ECHR were
violated.

Art 64 of the Explanatory Memorandum of Recommendation (2004)20 of the Committee of

77

Ministers to Member States on Judicial Review of Administrative Acts (15 December 2004).
78
https://journals.sagepub.com/doi/pdf/10.1177/0924051917737913?
casa_token=PNK5QtiPxNwAAAAA:kKo1iMtUMrVZCn0q4KzdUeRTvWIzTvBfUaQqrNw4oynuYXXY2hat8QCXn11N
hiy-ZHbjEUxk9uU2ag, 240.
79
. Jenkins (n 18) 282-312. See also John Ip, ‘The Rise and Spread of the Special Advocate’
[2008] Public Law 717; Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford
University Press 2015) 241; Murphy (n 29);
https://journals.sagepub.com/doi/pdf/10.1177/0924051917737913?
casa_token=PNK5QtiPxNwAAAAA:kKo1iMtUMrVZCn0q4KzdUeRTvWIzTvBfUaQqrNw
4oynuYXXY2hat8QCXn11Nhiy-ZHbjEUxk9uU2ag, 240.
80
Chahal v The United Kingdom App no 22414/93 (ECHR, 15 November 1996) para 130.
81
Chahal v The United Kingdom App no 22414/93 (ECHR, 15 November 1996) para 138.
82
Chahal v The United Kingdom App no 22414/93 (ECHR, 15 November 1996) para 130.
In Al-Nashif v Bulgaria, concerning the expulsion of a non-citizen on national security
grounds, the Court expressed that there were ‘means which can by employed, which both
accommodate legitimate national security concerns and yet accord the individual a substantial
measure of procedural justice’.83 Furthermore, in its deliberations of how to reconcile the
interest of preserving sensitive information with the individual’s rights, the ECtHR asserted
that:

‘While procedural restrictions may be necessary to ensure that no leakage detrimental to

national security would occur and while any independent authority dealing with an appeal
against a deportation decision may need to afford a wide margin of appreciation to the
executive in matters of national security, that can by no means justify doing away with
remedies altogether whenever the executive has chosen to invoke the term national security’.84

This approach was adopted in a number of later cases. In C.G. and others v Bulgaria, the
expulsion was carried out on the day the order was issued. The expulsion decision was based
on unspecified information contained in a secret internal document, 85 meaning that the
applicant was not able to challenge it.86 In fact, he could not have his case adequately heard
and reviewed. The ECtHR stressed that: ‘the notion of ‘national security’ is not capable of
being comprehensively defined […] It may, indeed, be a very wide one, with a large margin
of appreciation left to the executive to determine what is in the interests of that security’. 87
However, in this case the ECtHR was of the view that the domestic courts had allowed their
respective executive branches to stretch the notion of national security beyond its natural
meaning.88 The Bulgarian courts had not examined whether the executive body was able to
demonstrate the existence of specific facts serving as a basis for its assessment that the
applicant posed a national security risk, and instead based its rulings solely on uncorroborated
statements by the Ministry of the Interior.89

83
2. Al-Nashif v Bulgaria App no 50963/99 (ECHR, 20 June 2002) para 97.
84
Al-Nashif v Bulgaria App no 50963/99 (ECHR, 20 June 2002) para 137.
85
CG and others v Bulgaria App no 1365/07 (ECHR, 24 April 2008) para 46.
86
CG and others v Bulgaria App no 1365/07 (ECHR, 24 April 2008) para 74.
87
CG and others v Bulgaria App no 1365/07 (ECHR, 24 April 2008) para 43.
88
CG and others v Bulgaria App no 1365/07 (ECHR, 24 April 2008) para 43.
89
ibid. See also Raza v Bulgaria App no 31465/08 (ECHR, 11 February 2010) paras 53–54.
In Kaushal and Other v Bulgaria, the ECtHR stated that the decision to expel Mr Kaushal
made no mention of the factual grounds on which it was made. 90 It simply referred to the legal
provisions in force and stated that his presence in Bulgaria represented a ‘serious threat to
national security’.91 The conclusion was based on unspecified information contained in a
secret internal document. In the ECtHR’s opinion the applicant was not able to present his
case adequately and review in the light of possible arguments militating against his expulsion.

Without a doubt, the jurisprudence of the ECtHR gives guidance on how to resolve tensions
between national security concerns and the due process rights of aliens. Generally, the Court
systematically enhanced protection of the access to the case file and evidence in expulsion
proceedings. The ECtHR cases discussed here illustrate that a State relying on public order or
national security issues to expel an alien before the exercise of his or her rights under
paragraph 1 of Article 1 of Protocol No. 7 must be able to show that this measure is necessary
in the particular case. The ECtHR has often reiterated that an alien being expelled on national
security grounds must be given an opportunity to have that decision effectively scrutinised by
an impartial, independent authority or a court competent to review the relevant evidence, with
appropriate procedural limitations on the use of classified information.79 Before that body, an
alien must be provided with some form of adversarial proceedings in order to present his or
her view and rebut the arguments forwarded by the authorities.80 In other words, the alien
must be informed of a core of information sufficient to provide him or her with the
opportunity to question the charges against him or her.92

Since the Chahal case, the ECtHR has accepted that: ‘there are techniques which can be
employed which both accommodate legitimate security concerns about the nature and sources
of intelligence information and yet accord the individual a substantial measure of procedural
justice’.81 Therefore, the expulsion proceedings can take place with the appointment of
‘‘special advocates’’ that have access to secret evidence and represent the interests of the
alien who is excluded from hearing evidence in a closed hearing. Nevertheless, the reference

90
Kaushal and others v Bulgaria App no 1537/08 (ECHR, 2 September 2010) para 30.
91
Kaushal and others v Bulgaria App no 1537/08 (ECHR, 2 September 2010) para 30.
92
https://journals.sagepub.com/doi/pdf/10.1177/0924051917737913?
casa_token=PNK5QtiPxNwAAAAA:kKo1iMtUMrVZCn0q4KzdUeRTvWIzTvBfUaQqrNw4oynuYXXY2hat8QCXn11N
hiy-ZHbjEUxk9uU2ag, 244.
– made by the ECtHR in the Chahal case – ‘to foreign law, from outside of the Council of
Europe, was no more than obiter dicta, as it only demonstrated that other, less rights-
restrictive procedures were available, not that the Convention required member states to adopt
a special advocate regime’.93

2014:

A and others v uk???

HRM Johansen t. Denemarken, EHRM 3 maart 2022

Ghoumid e.a. tegen Frankrijk, ECLI:CE:ECHR:2020:0625JUD005227316

A tegen Nederland

93
https://journals.sagepub.com/doi/pdf/10.1177/0924051917737913?
casa_token=PNK5QtiPxNwAAAAA:kKo1iMtUMrVZCn0q4KzdUeRTvWIzTvBfUaQqrNw4oynuYXXY2hat8QCXn11N
hiy-ZHbjEUxk9uU2ag, 244.
2.1. Legal standards of proof

2.2. Legal standards on Statelessness

2.3. Assessment