Full-fledged citizens vs. citizens on probation in France. On the Conseil constitutionnel judgment relating to deprivation of nationality
François-Xavier Millet is Professor of Public Law at the University of the French West Indies (CAGI-CRPLC Guadeloupe; IRDEIC Toulouse)
Are there several categories of French citizens, namely those who got citizenship by birth and those who acquired it later? In other words, are there first-class citizens, enjoying all the rights conferred by nationality, and second-class citizens, enjoying them to a more limited extent? The Conseil constitutionnel seems to have taken the latter view when it comes to deprivation of nationality, in particular on the grounds of terrorism. On 23 January 2015, twelve days only after the terrorist attacks on Charlie Hebdo, the Conseil held that the Civil Code provisions allowing forfeiture of nationality on grounds of terrorist activity were in keeping with the French Constitution, especially with the equality principle (decision n° 2014-439 QPC, Ahmed S.).
The procedural background
Until 2010, it was impossible, save very limited exceptions, to challenge domestic statutes before the Conseil constitutionnel as constitutional review could take place only in abstract terms and a priori, between the adoption and the enactment of the statute. Five years ago, a new procedure was introduced in French constitutional adjudication, namely the question prioritaire de constitutionnalité (QPC), i.e. a priority preliminary reference mechanism on issues of constitutionality whereby a plaintiff in an actual case arising before an ordinary judge requests the examination of a statute by the Conseil constitutionnel as regards its compatibility with the rights and freedoms that are guaranteed by the Constitution (Art. 61-1). Upon certain conditions pertaining to the relevance and seriousness of the claims, the ordinary judge may decide to refer the case either to the Cour de cassation or Conseil d’Etat who will then determine whether a ruling of the Conseil constitutionnel is needed to settle the matter.
In the present case, the Conseil d’Etat, in its capacity of first and last instance judge, was called on to assess the lawfulness of a decree taken by the French Prime Minister on 28 May 2014 depriving the plaintiff, a Franco-Moroccan man, of the French nationality for his participation in a terrorist undertaking. In this context, the plaintiff argued that the constitutional principle of equality had been breached.
The contested legislation
The impugned provisions, namely Art. 25 and 25-1 of the French Civil Code set out the grounds and conditions on which a citizen who acquired French citizenship could be stripped of it. It is incumbent on the Prime Minister, with the assent of the Council of State, to take such a decision, when a person has been sentenced for offences expressing disloyalty or treason towards the national community that they had decided to be part of. Among these offences, Art. 25 includes those violating the Nation’s fundamental interests or constitutive of a terrorist act. One important aspect of the present case is that forfeiture of nationality may only be decided if the offence occurred prior to or within ten years after the acquisition of nationality. It can be pronounced on within ten years only after commission of the offence. These two periods can be extended to fifteen years in the case of violation of the Nation’s fundamental interests or terrorist activity.
The crux of the matter is that, within these time limits, Art 25 and 25-1 of the Civil Code allow forfeiture of nationality of a specific category of French nationals only, namely those and only those who have double citizenship (in order to avoid statelessness) and acquired French citizenship. In other words, deprivation of nationality is not possible for citizens who have been French since they were born. It is only an option for those who initially had the nationality of a foreign country and became French later on. It is this very discrepancy that was challenged by the plaintiff.
The Conseil’s appreciation
The Conseil d’Etat found the claim serious enough to stay the proceedings and refer the issue of constitutionality to the Conseil constitutionnel. Before the latter, the plaintiff raised arguments grounded in both EU law and constitutional law. He argued that Art. 25 and 25-1 were at odds with the principle of equality protected under EU law and therefore requested the matter to be sent to the Court of Justice of the European Union (CJEU). The remaining claims were based on constitutional principles, namely equality in its domestic interpretation, necessity and proportionality of penalties, legal certainty, the right to private life and intelligibility of the law.
The Conseil constitutionnel dismissed all the claims, holding that the impugned legislation was in compliance with the Constitution. To reach this conclusion, the Conseil dwelled only on the arguments deriving from equality and from necessity and proportionality of sanctions. As to the latter, it did not find that the possibility of depriving someone of his or her nationality was either unnecessary or disproportionate. It relied on the usual stance that it was only up to the Parliament to decide on the necessity of sanctions. When it comes to proportionality, they held that the contested legislation did not provide for disproportionate sanctions «in view of the utmost gravity attached to terrorist acts» (§ 17-19). This is not entirely convincing as depriving someone of his nationality is a particularly heavy penalty that comes in addition to the condemnation for terrorism itself. However, the most interesting part of the judgment is the reasoning on equality.
Equality was put forward by the plaintiff as a principle guaranteed both under EU law and under domestic constitutional law. Addressing the European dimension of the principle of equality, the Conseil restated its traditional approach to the criteria used for its constitutional review (§ 7-9). Save in very specific cases where the Constitution itself refers to external norms and where a preliminary reference to the CJEU is then possible (see the Jeremy F. judgement of 4th April 2013), it has always rejected to assess the compliance of laws with international or European treaties or secondary acts, leaving it to ordinary judges. Therefore, as expected, it did not refer the case to the CJEU and restricted itself to the examination of compatibility of Art 25 and 25-1 with the French principle of equality (§ 10-16).
The Conseil constitutionnel had already had the opportunity to look at the constitutionality of the impugned provisions in the past. In normal circumstances, it would merely have declared the case inadmissible. There had indeed been no changes in the law or in the facts between the first ruling delivered in 1996 and the present case. However, as it never formally held in the operative provisions of its judgment that Art. 25 and 25-1 were in line with the Constitution, it could have a fresh look at it again. After stressing that persons who acquired French nationality and those who enjoyed it by birth were in the same situation, it quoted the previous judgment according to which «the legislator could, in view of the aim to strengthen the fight on terror, allow the administrative authorities, within a limited time, to deprive of their French nationality those who acquired it, without it being the case that the resulting difference of treatment violated the principle of equality».
At that time already, the Conseil did not see any problems in treating differently «new French» and «old French» who, admittedly, were in the same legal situation and, therefore, could claim to be entitled to the application of the same rules and rights. General interest, though, allowed for a difference of treatment «within a limited time». During this period, the legislator could distinguish between full-fledged citizens and citizens that were somewhat on probation, i.e. who are being tested for a few years in order to be sure about their suitability for the job of French citizen. As long as the Conseil did not find any difference of situation among these citizens, the only legal issue was the determination of what is a reasonable limited time within which it is constitutional to provide for different rules.
How long shall a new citizen wait until he becomes a full-fledged citizen whose nationality can no longer be withdrawn? The Conseil almost gave a figure as it went on examining the two legislative changes that occurred since 1996 as to the time limits. First, it noted that the scope of the forfeiture of nationality was extended in 2003 to offences that may have occurred before (and not only after) the acquisition of nationality. However, this bore no connection with the deadline for challenging nationality. Therefore, the Conseil did not find anything wrong in this. Secondly, the time period within which such a deprivation could be decided was brought in 2006 from 10 years to 15 years after the acquisition of nationality or the commission of the offence. This extension only applied in the case of terrorist acts and violation of the Nation’s fundamental interests, as mentioned earlier.
The Conseil took the view that such an extension was in keeping with the Constitution because it only applied to facts that are of the utmost gravity, namely terrorist acts. However, it made it clear that the 15-year-limit was to be the upper limit. It could not be exceeded without violating equality in a disproportionate manner between persons having acquired French citizenship and those who received it by birth (§ 15). By placing a limit to the limit, the Conseil constitutionnel has been willing to balance formal equality between persons in the same situation and the general interest deriving from the need to protect public order and security in time of terror. While this is a welcomed move for the sake of equality, it is debatable whether such a breach of equality, no matter how limited in time, would be endorsed by the CJEU.
The Rottmann case: a precedent?
Although the Conseil constitutionnel remained faithful to its traditional stance towards European Union law, the latter may not be entirely irrelevant here. Member States have undoubtedly competence to decide on their nationality laws. However, the existence of EU citizenship, which is intended to be «the fundamental status of nationals of the Member States» (Case C-184/99 Grzelckzyk) limits the competence of the Member States in the matter.
The now famous Rottmann ruling of 2 March 2010 insisted on the fact that a Member State retained the right to define the rules regarding nationality, yet it must respect proportionality in withdrawing nationality from a person who acquired it fraudulently, provided that such a withdrawal does not lead to statelessness. «In this respect, it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his own original nationality», said the CJEU (§ 56).
In the present case, the facts are pretty different, which makes it dubious whether Rottmann may be seen as a precedent. Firstly, fraud is undoubtedly a serious offence, yet it is admittedly less serious than terrorist activities. Secondly, the French provisions apply only in the case of people having double citizenship while, in Rottmann, there was a risk for the plaintiff to end up stateless and to be deprived of EU citizenship as a result of the loss of a Member State nationality. However, Rottmann still bears some relevance here. The Court stated that it was legitimate for a State to withdraw naturalization on account of deception or another reason relating to the public interest even if the consequence of that withdrawal is that the person in question loses both his nationality and citizenship of the Union (§ 54). It recalled that «it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality» (§ 51). As stressed by Advocate General Maduro in his opinion, nationality implies that «the State defines its own people. What is at stake, through the nationality relationship, is the formation of a national body politic, and it goes without saying that a Member State is free to define the limits of that body politic by determining the person whom it considers to be its nationals» (§ 17).
Nationality is not only a legal but also a political concept. That is why States shall enjoy such a great deal of discretion in deciding who can or cannot be part of the national community. When it comes to terrorist acts committed by a person against his fellow citizens, it is understandable, if not legitimate, to consider that this person does no longer belong to a community sharing the same beliefs and values. He may therefore be stripped of his nationality, unless he has got only one (here, the legal dimension of nationality shall prevail over the political aspect).
Proportionality and time limits: how long may a citizen be on probation?
When taking a far-reaching decision such as deprivation of nationality, the proportionality of the measure should be examined, although not necessarily on account of EU law. It is uncertain whether EU law would be applicable in the present case as we might be in a purely internal situation (which could not be seen as a major problem by the CJEU who increasingly tends to reduce the scope of such situations). In any case, be it under EU law or domestic law, respect for proportionality is paramount. This actually led the Conseil to put a cap on the time limit within which forfeiture of nationality is permissible. Anyhow, it is doubtful that the CJEU would have decided differently. Not only does it recognize a margin of appreciation to Member States in the appreciation of proportionality, but it also gives weight, as said earlier, to the gravity of the offence that was committed and to the time that has elapsed between the decision granting nationality and the one withdrawing it. The ruling of the Conseil therefore seems compatible with CJEU case law.
However, it is highly debatable whether it was appropriate to distinguish between first-class and second-class citizens. It is most probably proportionate to establish such a division as long as it does not last too long. Yet, I fail to see why the legislator did not include those who became French by birth within the personal scope of application of Art. 25 and 25-1 of the Civil Code. As stated by the Conseil itself, both categories of citizens are in the same situation. Why is it that the “new French” would need to be on probation while the “old French” would enjoy a non-rebuttable presumption of loyalty towards their country? Is this breach of full equality legitimate while we could contemplate that all citizens who have double citizenship may be deprived of their nationality if they commit a grave wrongdoing such as indulging in terrorist activity?
Such a legislative change would have at least two positive consequences. First, it would put on an equal footing those who inherited nationality by chance and those who acquired it voluntarily. Secondly, it could then be possible to extend the time limit beyond fifteen years or perhaps to scrap it altogether. This limit might eventually impede the purpose of the contested legislation. The reason why the French Parliament decided to extend it is that network terrorists tend to exploit nationality laws in order to be able to live in any place that they would like to use as a base. They just stay quiet for some time until there is no risk for them to lose their nationality together with their right to reside and move freely in their country (and throughout Europe as EU citizens). Fifteen years might not be enough then. Still, the Conseil constitutionnel considers that it is the upper limit beyond which it is impossible to go unless the Constitution is amended. Even so, deprivation of nationality could be decided only in case of an extremely grave offence committed by the French national. This would still be compatible with EU law, assuming that the elements set out by Rottmann to evaluate the proportionality of the measure were mere indications, not criteria that must be all met. Anyhow, this is not the route that the legislator or the Conseil have chosen to follow.
In deciding as it did in 1996 and January 2015, the Conseil constitutionnel, who often underlines the necessary respect for the legislature’s general power of appraisal in its judgments, may have been once again reluctant to properly act as a counterweight to the Parliament. It would however have been well advised to do so for the sake of equality among citizens. One may object that equality would not be utterly achieved as there is still one category of citizens who could never be deprived of their nationality: those who only have French citizenship, which incidentally, was the case of the authors of the Paris attacks last January. To mend this discrepancy, the Government has suggested to create a new crime d’indignité nationale that was established straight after World War II but was very short-lived. This could not entail the deprivation of nationality, yet the loss of several civil and political rights. We may suppose that the loss would be so severe that this status would not only equate with social death but also be close to statelessness. It is doubtful then that the Conseil constitutionnel or any of the European supranational courts would accept such a status.
In any case, when it comes to terrorism, it is probably better to act upstream, in particular by trying to identify who is to use French citizenship for terrorist purposes. Even though terrorists are later on deprived of their nationality, it often turns hard to expel them to the country of their other nationality, since the European Court of Human Rights prohibits the expulsion or extradition to countries, such as Algeria, where the person could be subject to torture of degrading treatments (decision n° 19576/08, Daoudi vs. France). Forfeiture of nationality is therefore deprived of effectiveness. As a highly symbolic measure that is perfectly understandable from a political and community point of view, I nevertheless doubt that it is the most useful instrument in the war on terror. Governments should rather think of other devices or merely apply the existing ones for now.