ECtHR, 13 July 2023, Emin Huseynov v. Azerbaijan (No. 2), Appl. No. 1/2016

Citizenship – Arbitrary deprivation of citizenship – Denationalization – Statelessness – Right to private and family life.

The European Court of Human Rights decides on a case of renunciation of citizenship under State coercion which essentially amounts to an arbitrary deprivation of citizenship. Although the right to citizenship is not enshrined in the ECHR Convention, the Court decides in this case because of the impact that citizenship has on private life, which is a very broad concept and encompasses multiple aspects of a person’s identity, at both physical and social levels, finding the arbitrariness of the measure and thus a violation of Article 8 of the Convention. This case is the starting point for a brief review of the principles affirmed by the European Court of Human Rights on nationality and citizenship, as well as a reflection on the growing trend of denationalization leading to statelessness.

Francesca Raimondo

A. Facts and Ruling

1. Facts of the Case

In the case Emin Huseynov v. Azerbaijan (No. 2), the European Court of Human Rights (“ECtHR”) recognized a violation of the right to private and family life, enshrined in Article 8 of the European Convention of Human Rights (“ECHR” or “the Convention”), by the Azerbaijani government since the fact that the applicant lost his citizenship and became statelessness gave rise to uncertainty about his legal status, which also had serious repercussions on his private life and social identity. Emin Huseynov, an independent journalist and president of the NGO Institute for Reporters’ Freedom and Safety (IRFS) committed to defending the rights of journalists, had appealed to the ECtHR, complaining of several violations of the Convention since he had been forced to renounce his Azerbaijani citizenship.

Interestingly, Huseynov had already appealed to the ECtHR previously with a different complaint (Emin Huseynov v. Azerbaijan). Indeed, the journalist had been arrested while he was at a private party, in a café in the capital, organized by the “Che Guevara fan club” to celebrate the Argentine revolutionary’s 80th birthday, where the police had irrupted, shortly after the party began. Huseynov identified himself, informing the police that he was a journalist while warning the press agencies (Turan Information Agency) of the police intervention. At the police station, the journalist was threatened and beaten to such an extent that he lost consciousness and was taken to hospital where he was diagnosed with traumatic brain injury and contusions up to the point that he was taken to the intensive care unit. The criminal proceedings were only initiated following the complaint made by the journalist, given that, previously, the investigator refused to institute criminal proceedings, as there was no evidence that Huseynov had been ill-treated by the police. After having exhausted all domestic remedies, the case was brought to the attention of the Strasbourg judges who found a violation of Article 3 (prohibition of torture or inhuman or degrading treatment or punishment), Article 5 (right to liberty and security), considering that his arrest was arbitrary and unlawful, as well as Article 11 (freedom of assembly and association), since there was no legal basis to justify the police intervention in a private party as well as its dispersal.

In the case here commented, in July 2014 the Prosecutor General’s Office initiated investigations concerning alleged irregularities in the financial activities of some Azerbaijani NGOs that had led to the freezing of their accounts, as well as the arrest and pre-trial detention of some human rights defenders and civil society activists (already examined by the ECtHR in ex multis Rasul Jafarov v. Azerbaijan).

Fearing that he would be arrested, Huseynov first tried to escape without success and then took refuge at the Swiss Embassy, where he spent several months before being transferred to Switzerland on 12 June 2015 on a plane of the Minister for Foreign Affairs of the Helvetic confederation, where he was granted asylum in October of the same year.

However, according to the government, on 4 June 2015, when he was already in the Swiss Embassy, the journalist filled in and submitted an application form to the President of the Republic of Azerbaijan, stating that he wished to renounce his Azerbaijani citizenship.[1] Interestingly, the application form clearly stated that Huseynov had no citizenship other than the Azerbaijani one, the renunciation of which would automatically make him stateless. A few days later the tax debt was paid by the Swiss authorities and, as a result, the order for the applicant’s arrest as well as the decision declaring the applicant a wanted person fell, but the State Migration Service sent the journalist a letter informing him that, following his application, the President of the Republic issued an order (No. 1269 of 10 June 2015) which ended his citizenship. The journalist was not provided with a copy of this order, and it was not submitted at the Strasbourg Court.

2. Decision of the ECtHR

The Court first rejected the State’s objection that domestic remedies had not been exhausted, a precondition under Article 35(1) for a case to be heard by the ECtHR. The Court highlighted the three reasons why this preliminary objection had to be rejected. Firstly, the Court noted that under Azerbaijani law, normative legal acts of the legislative and the executive can be challenged before the Constitutional Court if they violate rights and freedoms. However, orders of the President of the Republic, as in the present case, do not fall within the category of the normative legal acts. Secondly, the order could not even be challenged in administrative court proceedings since the President of the Republic is not an administrative body within the meaning of the domestic law. Lastly, the Court stressed that Huseynov had never been notified of the Azerbaijani President’s order, a prerequisite for becoming aware of the decision and, therefore, taking legal action.

With regard to the merits of the case, the Court observed that neither the Convention nor its Protocols enshrine the right to nationality and the right to renounce it. Nevertheless, questions concerning nationality may potentially infringe the Convention because of the impact they may have on the applicant’s private life. Indeed, the Court recalls that the concept of private life, protected in Article 8 ECHR, is very broad and encompasses multiple aspects of a person’s identity, at both physical and social levels. Therefore, in order to verify whether a breach of the conventions has actually occurred, it is necessary to follow what the Strasbourg judges define as the consequence-based approach, which implies two steps: to verify the consequences of the contested measure for the applicant and, then, determine whether the measure was arbitrary.

In Huseynov’s case, it is undisputed that the loss of citizenship resulted in statelessness, creating uncertainty about his legal status, which also had serious repercussions on his social identity. Regarding the arbitrariness of the measure, the Court decided to examine the facts of the case, overcoming the opposing positions of the applicant and the government. Indeed, while Huseynov stated that he had been forced to renounce his nationality, the respondent government argued that the journalist had voluntarily done so. The Court did not consider it necessary to resolve this point to ascertain whether the measure was arbitrary. To this end, it was sufficient to establish whether the measure was provided for by the law, whether there were adequate procedural guarantees and, finally, whether the authorities had acted diligently and swiftly. The Court observed that the Azerbaijani nationality law provides that a person who is charged as an accused in criminal proceedings may not ask to renounce his or her nationality. Moreover, the renunciation of nationality had rendered the applicant stateless, in stark contrast to the United Nations Convention on the Reduction of Statelessness of 30 August 1961, to which Azerbaijan acceded in 1996 and which is an integral part of Azerbaijani law. Although Article 7(1)(a) of the 1961 UN Convention states that loss of nationality is permitted when a person voluntarily renounces his or her nationality according to the rules of his or her country, this is permitted if the person possesses or acquires another nationality.

All in all, the fact that the authorities had acted in complete disregard of the United Nations Convention on the Reduction of Statelessness, despite the fact that they were fully aware that Mr. Huseynov held no nationality other than Azerbaijani, together with the fact that the measure had not been accompanied by adequate procedural safeguards, led the Court to conclude that the measure was arbitrary and, therefore, constituted a violation of Article 8 ECHR.

Regarding the other violations reported by the applicant, the ECtHR examined only those related to Articles 34 and 38 ECHR, concluding that they were not infringed because the government did not prevent Mr. Huseynov from taking the matter to the Court nor from examining his case by failing to provide the requested documents.

The peculiarities of this case allow for a brief review of the principles affirmed by the ECtHR on citizenship, as well as a reflection on the growing trend of denationalization leading to statelessness.

B. Discussion

1. Citizenship in Strasbourg: From the Incompatibility Ratione Materiae to the Impact on Private Life and Social Identity

The right to nationality is not enshrined in the articles or protocols of the ECHR. This appears to be in contradiction with the trend inaugurated in the aftermath of WWII, whose atrocity, mass denaturalization, and consequent statelessness drove the will to affirm a human right to nationality at the international and regional levels. Among others, exemplary in this regard are Article 15 of the 1948 Universal Declaration of Human Rights, Article 20 of the American Convention on Human Rights, or Article 24(3) of the International Covenant on Civic and Political Rights.

In 1988, the Committee of Experts for the Development of Human Rights started to consider the possibility of including a right to nationality in the Convention. Although there were common patterns among the European States on the main questions concerning nationality, there was a lack of political will in including such an article or protocol due to two reasons. First, States were not ready to forgo their sovereignty and submit themselves to the supervision of the ECtHR. Secondly, scholars argued that it is possible to identify a trend in European countries (with the notable exception of Portugal) where citizenship is defined not as a fundamental right itself to be guaranteed in the Constitution, but as a legal prerequisite for enjoying certain rights and freedoms.

However, even though the ECTHR is prevented from directly adjudicating on matters related to nationality, it has developed a jurisprudence on it. Earlier complaints related to nationality have been systematically rejected by the ECtHR for being incompatible ratione materiae with the provisions of the Convention. Over time, however, the Court has changed its approach and began to review issues regarding citizenship. Indeed, citizenship can come into consideration if a refusal of the right could, under certain circumstances, violate another right enshrined in the Convention. In this regard, the 1997 European Convention on Nationality has played an important role. Article 16 of the Explanatory Report to the European Convention on Nationality stated that, “even if the ECHR and its protocols do not, except for Article 3 of Protocol No. 4 (prohibition on the expulsion of nationals), contain provisions directly addressing matters relating to nationality, certain provisions may also apply to matters related to nationality questions.” Article 16 then lists the main ECHR articles that could come into consideration, namely Article 3 (prohibition of torture or inhuman or degrading treatment or punishment), Article 6 (right to a fair and public hearing), Article 8 (right to family life), Article 14 (non-discrimination), and Article 4 of Protocol No. 4 (prohibition on the collective expulsion of aliens). Undoubtedly, among others, Articles 8 and 14 have played an important role in the “developing” jurisprudence of the ECtHR on citizenship.

Over the years, the Court has established some important principles with regard to nationality. First, the Court has always maintained that, under Article 19, it can only handle complaints concerning the Articles and Protocols of the Convention, while it cannot decide on other human rights instruments (e.g., Article 15 of the 1948 Universal Declaration of Human Rights). Secondly, when “nationality” comes into consideration, it must be defined considering the national law of the State concerned. Thirdly, differences in treatment based exclusively on nationality are compatible with the ECHR only if very strong reasons are put forward. Fourthly, the ECtHR established that an arbitrary denial of citizenship may, under certain circumstances, raise an issue under Article 8 because of the impact of such a denial on the private life of the individual. Conversely, in Riener v. Bulgaria, the Court held that it cannot exclude “that an arbitrary refusal of a request to renounce citizenship might in certain very exceptional circumstances raise an issue under Article 8 of the Convention if such a refusal has an impact on the individual’s private life” (§ 154). Strasbourg’s judges extended the same principle to the revocation of citizenship, since an arbitrary revocation can have the same or even a greater interference with a person’s private and family life. Finally, in the recent case of Genovese v. Malta, the Court went a step further, affirming that “the denial of citizenship may raise an issue under Article 8 because of its impact on the private life on an individual, which concept is wide enough to embrace aspects of a person’s social identity” (§ 33).

In the Huseynov case, recalling the above-mentioned case law, and particularly Genovese v. Malta, the Strasbourg judges highlighted how the loss of citizenship and consequent statelessness of the journalist had a significant impact on his physical and social identity which, together with the arbitrariness of the measure, violated Article 8 of the Convention.

2. Deprivation of Citizenship: Back with a Vengeance?

Citizenship deprivation constitutes a State power under which a person may be deprived of the status of citizen. According to international law, each State is sovereign in determining who its citizens are, consequently it holds both the power to establish the modalities regulating the acquisition of nationality, but also to identify the specific cases in which citizenship may be revoked.

This State power is apt to reveal a peculiar conception of citizenship, one that considers it as a genuine privilege, which does not seem to reconcile well with the contemporary idea of citizenship that emerged in the aftermath of the WWII, according to which citizenship is more than a privilege, it constitutes an inviolable right that has found express recognition in declarations and charters of rights at both international and regional levels. In addition, the denationalization has historically led to serious discrimination on political, ethnic, racial and gender grounds, and has marked a profound and clear gap between the principle according to which citizenship is rooted in the principle of equality, and the reality where significant distinctions are made.

Denationalization has mainly characterized despotic and totalitarian regimes, especially in the period between the two World Wars. More specifically, the Soviet Union had used this tool against opponents of the Bolshevik regime; the same happened in Germany and Italy during the period of the racial laws. In particular, Germany firstly deprived many naturalized subjects of their citizenship, especially Jews and political opponents (German Law of 14 July 1933 concerning Cancellation of Naturalizations and Deprivation of Nationality), then in 1941 revoked the citizenship of all German Jews living abroad (11th Ordinance by virtue of the Reich Citizenship Law of 25 November 1941 concerning Denationalization of Jews resident abroad). Likewise, in Italy, Jews who had acquired it through naturalization after 1 January 1919 were deprived of citizenship (Article 23 of the Royal Decree-Law No. 1728 of 17 November 1938-XVII, Provvedimenti per la difesa della razza italiana). Referring to the mass denationalization of this period Hannah Arendt affirmed: “once they [the affected persons] had left their homeland they remained homeless, once they had left their state, they became stateless; once they had been deprived of their human rights they were rightless, the scum of the earth.”

In essence, the revocation of citizenship is generally used by the State with the aim of severing the ties, both legal and symbolic, with a given person, so that he or she loses the rights and privileges of citizenship, as well as the duties and obligations deriving from it, and may more easily be removed or expelled from the territory of the State. Denationalization represents the culmination of the exercise of State power: it constitutes a sort of civil death for the individual who is completely excluded from the political community and, consequently, from the enjoyment of all the rights and privileges associated with the previous possession of citizenship.

Precisely in the light of the conception of citizenship as a human right, which emerged in the aftermath of the atrocities of WWII, and the fact that denationalization has mainly characterized despotic and totalitarian regimes, the use of the instrument of the revocation of citizenship has gradually declined, until it almost fell into disuse. In the last two decades, however, denationalization has regained a particular centrality—both practical and, above all, symbolic—since, in many Western countries, it has been used against individuals suspected or convicted of terrorism. Among others, the United Kingdom has amended the 1981 British Nationality Act in 2002, 2006 and 2014, progressively extending the power of the State to revoke citizenship. As of now, the State Secretary has the power to deprive citizenship if such deprivation is “conducive to the public good,” without any prior court decision.

In the case at stake, the renunciation of citizenship by Mr. Huseynov goes a step further, making him stateless. Under Article 1 of the 1954 Convention relating to the Status of Stateless Persons, a stateless is a person “who is not considered as a national by any state under the operations of its law.” Therefore, statelessness has both a strong symbolic impact—breaking the bond of belonging that binds the individual to a State—but also a strictly practical one. Indeed, the lack of identity documents has a significant impact on livelihoods because identity documents allow a person to freely enter and leave the territory of State, but they are also central with regard to employment, education, health care and other public services. Furthermore, statelessness can trigger forced displacement given that stateless people do not enjoy the same rights and duties as citizens and then may be victims of discrimination, human rights abuse and, in some cases, even persecution. Article 8 of the United Nations Convention on the Reduction of Statelessness of 30 August 1961, to which the Azerbaijani government acceded in 1996, clearly states that a person cannot be deprived of citizenship if denationalization ultimately leads to statelessness. Only one exception is contemplated, namely when citizenship has been acquired by misrepresentation or fraud. A similar provision is enshrined in the European Convention on Nationality which states: “[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: […] (b) acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant.” Needless to say, this is not the case of the deprivation of citizenship perpetrated in the Huseynov case.

3. Conclusion

The Huseynov case is a further example of a growing trend of arbitrary denationalization being used as a tool to restrict citizens’ rights and freedoms. In the present case, denationalization is determined by the renunciation of citizenship due to state coercion, which in essence amounts to the arbitrary deprivation of citizenship. Denationalization is used by States with the aim of severing the ties, both legal and symbolic, with a given person, so that he or she loses the rights and privileges of citizenship, as well as the duties and obligations deriving from it, and may ultimately also be permanently removed from the territory of the State. Scholars have observed how denationalization represents the culmination of the exercise of State power: it constitutes a kind of civil death for the individual who is completely excluded from the community of citizens. The ECtHR responds very severely on this point, first reaffirming the impact of citizenship on private life, also declined as social identity, and then highlighting the arbitrariness of the measure, ultimately detecting the violation of Article 8 of the Convention.

C. Suggested Reading

To read the case: ECtHR, 13 July 2023, Emin Huseynov v. Azerbaijan (No. 2), Appl. No. 1/2016.

Doctrine:

• Bauböck, R. and Paskalev, V., “Citizenship Deprivation. A Normative analysis”, CEPS Paper in Liberty and Security in Europe, No. 4, 2015;
• Ersbøll, E., “The Right to Nationality and the European Convention on Human Rights”, in S. Lagoutte, H.-O. Sano and P. Scharff Smith (eds.), Human Rights in Turmoil. Facing Threats, Consolidating Achievements, Leiden, Martinus Nijhoff, 2007;
• Ferioli, E.A., “La Convenzione europea sui diritti dell’uomo e la cittadinanza statale: le vie di una ‘interferenza’ in progressiva espansione”, Diritto pubblico comparato ed europeo, fasc. 1, 2012;
• Gibney, M., “Denationalization”, in A. Shachar, R. Bauböck, I. Bloemraad and M. Vink (eds.), The Oxford Handbook of Citizenship, Oxford, OUP, 2017;
• Macklin, A., “Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien”, Queen’s Law Journal, No. 40(1), 2014.

 

To cite this contribution: F. Raimondo, “The Arbitrary Deprivation of Citizenship under the Scrutiny of the European Court of Human Rights”, Louvain Migration Case Law Commentaries, November 2023.