Netherlands, Administrative Jurisdiction Division of the Council of State of the Netherlands (Division), 17 April 2019 201806107/1/V6
Case summary
Deciding Body
Afdeling bestuursrechtspraak van de Nederlandse Raad van State
Netherlands
National case details
Registration ID: 201806107/1/V6
ECLI:NL:RVS:2019:990
Instance: Appellate on fact and law
Case status: Final
Area of law
Safeguards for access to justice
Relevant principles applied
In judicial dialogue
Case C-221/17 M.G. Tjebbes and others v Minister van Buitenlandse Zaken, Case C-348/16 Moussa Sacko v Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano, Case C-601/15 J. N. v Staatssecretaris van Veiligheid en JustitieIdentification of the case
- Article 22a(3) of the Netherlands Nationality Act (RWN)
- TFEU Article 20(1)
Summary of the case
In September 2017, the State Secretary for Justice and Security withdrew the Dutch nationality of the appellant with both Dutch and Moroccan nationality and declared him undesirable after he was sentenced in absentia to six years in prison for his contributions to the armed jihadi combat (IS) in Syria and Iraq, and the recruiting of young people for that purpose in The Hague. It is unknown where he is staying now. In the appeal which arose by operation of law the appellant has been assigned a counsel by the state.
- Administrative judicial enforcement
Appeal against the inadmissibility decision of the District Court regarding an action against the State Secretary’s decision to withdraw appellant’s Dutch nationality and the declaration of undesirability. The appellant claimed that there is a conflict between the EU law principle of ‘effective remedy and to a fair trial’ of Article 47 of the Charter of Fundamental Rights of the European Union (Charter) and the notification procedure of Article 22a (3) of the Netherlands Nationality Act (RWN).
In 2017, the Netherlands Nationality Act (RWN) was amended to make it possible to withdraw the Dutch nationality in the situation that the person has a double nationality if a person joins an organization that is on a list of terrorist organizations such as IS. The State Secretary has not made it clear that the appellant was still affiliated with a 'forbidden organization' at the moment the Act was amended. For that reason alone the State Secretary should not have withdrawn his Dutch nationality of the appellant and the Division declares the appeal against the decision of the State Secretary as well-founded.
Furthermore, in its ruling the Division examines the appellant's claim that there is a conflict between the EU law principle of ‘effective remedy and to a fair trial’ of Article 47 of the Charter of Fundamental Rights of the European Union (Charter) and the notification procedure of Article 22a (3) of the RWN. The appellant was not aware of the existence of the decision to withdraw his Dutch nationality and therefore could not put forward facts and circumstances that he considered to be important. According to the State Secretary, the regular notification procedure of the RWN was followed when the decision was announced, by sending it to the appellant's last known address and by placing it in the Netherlands Government Gazette.
Subsequently, the Division considers that, although in cases such as this, the person concerned is generally not aware of the decision to withdrawal his Dutch nationality, the RWN notification procedure and the regular legal procedure taken together guarantee that the opportunity to bring forward in two instances grounds for appeal against the decisions is available. The combination of the regular legal protection and the notification procedure means that the limitation in the light of Article 52(1) of the Charter on the ‘right to hear and be heard’ as protected in Article 47 of the Charter in the notification procedure does not constitute a ‘disproportionate and intolerable interference’ as mentioned in the Sacko judgment, 26 July 2017, ECLI: EU: C: 2017: 591, point 38. Finally, according to the Division, the limitation of the right to be heard meets an objective of public interest as referred to in Article 52 of the Charter, namely the protection of national security, as considered in judgment JN, 15 February 2016, ECLI: EU:C:2016:84, point 66. The Division considers therefore that the limitation of the right to be heard to protect the national security in this case also meets the demands of the ‘principle of proportionality’.
Role of the Charter and role of the general principles on enforcement
The Division established that it is clear from the case law of the ECJ that this case falls within the scope of EU law, because the withdrawal of Dutch nationality in this case also means that the appellant loses the status of Union citizen as meant in Article 20(1) TFEU and as has been considered in the ECJ judgment of 12 March 2019, Tjebbes and others, ECLI: EU:C:2019:189, paragraphs 30-32. The Charter is therefore applicable according to Article 51(1) of the CFREU.
- Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
The appellant (or in fact the appellant’s assigned counsel) claimed that there is a conflict between the EU law principle of ‘effective remedy and to a fair trial’ of Article 47 of the Charter of Fundamental Rights of the European Union (Charter) and the notification procedure of Article 22a (3) of the RWN because the appellant was not aware of the existence of the decision to withdraw his Dutch nationality and therefore could not put forward facts and circumstances that he considered to be important.
- Proportionality
The limitation of the right to be heard meets an objective of public interest as referred to in Article 52 of the Charter, namely the protection of national security, as considered in judgment JN, 15 February 2016, ECLI: EU:C:2016:84, point 66. The Division considers that the limitation of the right to be heard in this case also meets the demands of the ‘principle of proportionality’.
Elements of judicial dialogue
- Vertical
- Dialogue between high court - lower instance court at national level
- CJEU C-221/17, Tjebbes
- CJEU C-348/16, Sacko
- CJEU C-601/15, PPU
In this case to test whether Dutch Law is in accordance with EU law.
National Law is not affected regarding the right to be heard.
The national law is only applicable if the person has travelled after 1 March 2017.
Additional notes on the decision
Article 22°(3) Netherlands Nationality Act (RWN).
Nationality law