April 25, 2025
By Reza Khabook
On 3 December 2024, the ECtHR issued a Chamber judgment in El Aroud and Soughir v. Belgium. This case concerns the applicants’ citizenship revocation[1] following their terrorism-related convictions in Belgium. The Court concluded that Article 8 had not been violated and excluded the case from the scope of Article 2 of Protocol No. 7 by considering citizenship revocation as a non-criminal measure. A growing tendency of member states to use citizenship deprivation as a counter-terrorism measure is becoming evident. As a result, there has been an increase in the number of related cases before the ECtHR. In its recent judgments, the Court has leaned towards approving states’ decisions on the issue of citizenship revocation which raises serious concerns about its consistency in protecting human rights.
In this blogpost, I will explore the Court’s reasoning about the proportionality of citizenship revocation under Article 8 and its dismissal of the applicants’ arguments regarding the inadmissibility of Article 2 of Protocol No. 7 violation. This analysis will focus on two key issues. First, whether citizenship revocation should be perceived as a criminal punishment rather than an administrative or civil measure. Second, whether the impact of citizenship revocation on the private and family life of individuals can be considered a proportional punishment.
The case concerns the Belgian authorities’ decision to strip Malika El Aroud and Bilal Soughir of their Belgian nationality following their terrorism-related convictions. El Aroud, born in Morocco in 1959, arrived in Belgium at age five and acquired Belgian nationality in 2000. She was convicted in Switzerland in 2007 for disseminating jihadist propaganda and later sentenced in Belgium in 2010 to eight years imprisonment for leading a terrorist organisation that recruited jihadists for al-Qaeda. Following her release in 2016, Belgian authorities initiated proceedings to revoke her Belgian nationality, which was confirmed by the Brussels Court of Appeal in 2017. Her subsequent asylum application was rejected, and she was issued a deportation order.
Soughir, born in Algeria in 1973, moved to Belgium with his family in 1976 and became a Belgian citizen in 2001. He was convicted in 2008 for financing and organising armed jihadist activities and sentenced to five years in prison. After serving his sentence, Belgian authorities initiated nationality revocation proceedings, which the Brussels Court of Appeal confirmed in 2017. In 2019, he was arrested and ordered to leave Belgium.
The Belgian Nationality Code (Code de la Nationalité Belge – CNB) establishes two distinct procedures for the revocation of nationality. Article 23/1 CNB allows for nationality deprivation as a criminal sanction initiated at the public prosecutor’s request and grants the individual the right to appeal. In contrast, Article 23 § 1 CNB provides for nationality revocation as a civil measure in cases of serious failure to fulfil the duties of Belgian citizenship without granting the individual the opportunity to appeal the decision (para. 9-10). In this context, the Brussels Court of Appeal submitted a preliminary question to the Constitutional Court, asking whether the difference in procedural rights between individuals subject to Article 23 § 1 and those covered by Article 23/1 violated the principles of equality and non-discrimination under the Belgian Constitution and/or Article 2 of Protocol No. 7 ECHR. In its judgment No. 122/2015 of 17 September 2015, the Constitutional Court ruled that nationality revocation under Article 23 § 1 CNB was a civil matter independent of any criminal prosecution and therefore did not violate equality or non-discrimination principles or the Protocol.
The applicants contested the decision of the Brussels Court of Appeal, arguing that it violated their rights under the ECHR, including the right to a fair trial (Article 6), the right to no punishment without law (Article 7), the right to private and family life (Article 8), and the right of appeal in criminal matters (Article 2 of Protocol No. 7).
The ECtHR later joined the El Aroud and Soughir cases due to their similar legal and factual background, both involving the revocation of Belgian nationality on national security grounds. The Belgian authorities justified this measure by citing the applicants’ failure to fulfil their duties as Belgian citizens, particularly due to their involvement in terrorist activities that fundamentally undermined the country’s democratic values. The government argued that nationality revocation served legitimate aims, including protecting national security, preserving public order, and the principle that citizenship entails responsibilities. The Brussels Court of Appeal had emphasised that the applicants’ actions demonstrated a profound rejection of Belgian legal and social norms, constituting a deliberate and sustained failure of their civic duties. Given these common elements, the ECtHR deemed it appropriate to examine both cases together, assessing whether the revocation of nationality violated the applicants’ rights under the Convention.
In its substantial review, the ECtHR stresses the nature of terrorism as a grave threat to human rights. This legitimises the state’s reactions against those individuals who have been definitively convicted of terrorism due to its direct impact on the undermining of the values protected by the Convention. The ECtHR also emphasised that it granted a wide margin of appreciation to member states in making decisions regarding the granting, loss, or revocation of nationality. Moreover, the Court noted that both applicants retained another nationality, meaning the revocation would not leave them stateless. As a result, it concluded that the Belgian authorities had acted within their margin of appreciation and that the measures were “necessary in a democratic society.”
Regarding the specific rights invoked by the applicants, the Court limited its review to Article 8 and Article 2 of Protocol No. 7, relying on its authority to characterise the legal nature of the facts (Radomilja and Others v. Croatia and Nicolae Virgiliu Tănase v. Romania).
The ECtHR, in its judgment concerning Article 8, reviewed the applicants’ allegations through a consequence-based approach. Based on this approach, which is developed in Usmanov v. Russia, the Court first investigated the impact of the denationalisation on the applicants’ private and family life. In this stage, the Court mentioned that since citizenship revocation “has no automatic effect on the presence in Belgian territory,” the right of the applicant’s family will not be violated. However, considering that the applicants had lived in Belgium for a very long time – even before acquiring Belgian nationality – the Court found that revocation constituted an interference with their right to respect for private life. Thus, while the measure did not directly impact family life due to the lack of automatic expulsion, it nonetheless had serious consequences for the applicants’ social and professional ties in Belgium, warranting further scrutiny.
Secondly, the Court reviewed the citizenship revocation based on the proportionality test. Consequently, the Court found that the measure was prescribed by law, pursued a legitimate aim of national security and crime prevention, and fell within Belgium’s wide margin of appreciation in nationality matters. The Court’s reasoning suggested that while there was interference with private life, this interference was not necessarily disproportionate given the state’s interest in protecting national security.
Regarding Article 2 of Protocol No. 7, the Court held that the deprivation of nationality was a civil measure rather than a criminal punishment. Consequently, the provision was deemed inapplicable, and this part of the application was declared inadmissible.
The Court, in evaluating the nature of citizenship deprivation of applicants as individuals convicted of terrorism, referred to the so-called Engel Criteria extracted from Engel and Others v. Netherlands. According to the Engel Criteria, a punishment’s nature can be identified based on:
Later, the Court, citing its previous judgments – including Ghoumid and Other v. France as the most recent one – rejected the classification of citizenship revocation as a criminal punishment. While the ECtHR claimed to apply all three Engel Criteria, its reasoning only explicitly addressed the first two. Regarding the first criterion, the Court stated that denaturalisation is classified as a civil measure under Belgian law. It then dismissed the second criterion, following the assessment in Ghoumid (para. 45). In doing so, the Court reiterated its position from that case, asserting that citizenship revocation reflects the reality that an individual who acquires nationality through naturalisation and later commits particularly serious acts – such as terrorism – has severed their “bond of loyalty” to the state. Such acts, the Court held, “undermine the very foundation of democracy,” and the primary purpose of revocation is to solemnly acknowledge this severance.
To investigate the conclusion of the Court of citizenship deprivation as a non-criminal measure, it is necessary to challenge the Court’s application of the Engel Criteria. In what follows, I will focus only on the second and third criterion. There are two reasons for this focus. First, as indicated by the Court, the Belgian law considers citizenship deprivation as a civil measure. So, there is no space to manoeuvre. Second, the whole reason behind introducing the Engel Criteria is to tackle the “mislabeling tendencies” of Member States. As such, special attention is required to examine a sanction based on the offence’s nature and the punishment’s severity.
It should be noted that when one criterion is met, the revocation can be considered as a criminal charge. As the Court argued in Ghoumid, “the second and third criteria are alternative, not cumulative, but this does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge” (para. 68).
– The Nature of The Offence
As mentioned above, the Court considers terrorism as a measure which undermines the democratic foundation of the country, violating “the bond of loyalty”. Hence, the government can denaturalise the person to acknowledge the severance of the bond with the state. It appears that the Court relied on the justification for citizenship revocation to characterise the offence’s nature. However, the Court’s reasoning overlooked the fundamental point that the intended offence to be addressed is terrorism. The Court attaches a particular stigma – breaching the bond of loyalty – to terrorism.
The ECtHR in Jussila v. Finland (para. 43) noted that some criminal cases “do not carry any significant degree of stigma,” indicating that an offence can still be categorised as criminal even without stigma. This implies that while stigma is unnecessary for an offence to be considered criminal, its presence decisively confirms the criminal nature of the measure in question.
To better understand how terrorism relates to what the Court saw as another offence – breaking the bond of loyalty – we can look at Shai Lavi’s argument for justifying citizenship revocation, (see the cited articles of Lavi in this section here and here). As Lavi explains, citizenship revocation functions as a form of retributive punishment intended to mark the disgrace of terrorism. It is not merely a consequence of the crime but carries an inherently punitive character. This framing helps illuminate the significant degree of stigma attached to terrorism, reinforcing the idea that revocation of citizenship in such contexts should be treated as a criminal charge rather than an administrative or civil measure. Considering it as a criminal charge means the Court could find the safeguards of Article 2 of Protocol No. 7 applicable and the claim admissible.
– The Nature and Degree of Severity of The Penalty
The Court could have considered citizenship revocation as a criminal punishment in its cases when considering the nature of terrorism as a highly stigmatised offence. However, the Court did not classify it as such and instead evaluated the third criterion to assess the nature of terrorists’ citizenship revocation. Here, it deemed the sanction as not severe enough to be classified as a criminal punishment. It argued that denationalisation “does not result in deportation”, thus posing no grave risk to the denaturalised individual. Nevertheless, I believe the ECtHR could have delved deeper into the analysis of the impact of citizenship revocation to understand its harm to the convicted person better. Although the Court went a bit further into the severity of the punishment and its negative impacts on the right to respect for private life than it did in Ghoumid, it finally considered Belgium’s interference with Article 8 proportional.
The proportionality of the interference with the right to respect for private life is highly questionable. Citizenship revocation has been described as a “cruel and unusual treatment or punishment”. On the one hand, compared to the Court, we can see that even proponents of treating citizenship revocation as a criminal punishment acknowledge its severity. Some compare it to imprisonment for ordinary crimes and argue that the exceptional nature of terrorism compels the state to adopt such a harsh measure. On the other hand, critics highlight its profound psychological consequences. The Institute on Statelessness and Inclusion (page 148) notes that citizenship deprivation can lead to the loss of access to education, employment, and freedom of movement with an impact comparable to “ostracism”. A study involving 10.000 participants found that individuals subjected to social exclusion experience not only sadness and anger but also threats to four fundamental human needs: belonging, self-esteem, control, and meaningful existence. Moreover, brain imaging research has shown that ostracism can activate the same neural pathways as physical pain. Consequently, citizenship revocation should be regarded as even “more primitive than torture” because it represents the complete elimination of an individual’s standing within society and has long-lasting psychological impact on its subject.
Last but not least, the Court largely dismisses the impact of revocation on private life, reasoning that the loss of citizenship “does not automatically entail deportation”. However, this reasoning seems more like legal fiction. Citizenship revocation is inherently linked to the argument of protecting public security by preventing individuals from remaining within the country’s territory. The very premise of revocation is that the presence of the convicted individual is considered a threat that must be neutralised. For instance, in the case of El Aroud, the Belgian Court not only revoked her citizenship but also banned her from entering the country for fifteen years (para. 26). Thus, the Court could consider citizenship revocation as disproportional due to its severe impact on the right to respect for private and family life.
The ECtHR must reconsider its approach to citizenship revocation in terrorism cases. Terrorism carries a high degree of stigma, fulfilling the second Engel criterion formulated by the Court. Moreover, the severe consequences of citizenship revocation satisfy the third criterion. When citizenship revocation is recognised as a criminal punishment, it would be brought under the safeguards of Protocol No. 7, which ensures stronger procedural protections for affected individuals. As such, recognising citizenship revocation as a criminal punishment also raises concerns about double punishment, as it could be seen as a separate sanction imposed for the same crime, potentially violating Article 4 of Protocol No. 7 (prohibition of double jeopardy). Finally, in light of the severe impact of denationalisation on the private and family life of the individual, as well as its profound psychological effects, citizenship revocation should be considered a disproportionate punishment.
[1] In this blogpost, the terms citizenship deprivation, citizenship revocation, citizenship/nationality stripping, denaturalisation and denationalisation will be used interchangeably.
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