Article 7 - Respect for private and family life
Article 24 - The rights of the child
Key facts of the case:
T (the defendant), who had dual citizenship between Denmark and Bosnia and-Herzegovina, entered Syria from Denmark in the period between February 2015 and March 2019 with her then-husband and their six minor children. T’s husband died in combat, and she then married an individual who served as an ambulance driver for Islamic State (IS). While in Syria she had two more children and all of T’s eight children had dual citizenship between Denmark and Bosnia and-Herzegovina. T was repatriated to Denmark with all her children in 2021.
Pursuant to the Danish Criminal Code (straffeloven), Section 114 e and section 114 j (3), T was sentenced to four years in prison for having supported terrorism , as she, through her presence, including acting as a stay-at-home housewife and wife of persons who were active in IS contributed to IS being able to maintain and consolidate its position in the area. In continuation of the verdict, T was deprived of her Danish citizenship, pursuant to Section 8 B in the Danish Citizenship Act (Indfødsretsloven), stating that individuals who is convicted pursuant to certain anti-terrorism provisions can be revoked of their Danish citizenship unless they in that case become stateless. As she had dual citizenship, she would not become stateless. The deprivation of T’s citizenship included and assessment whether the deprivation was in accordance with her and her children’s rights under Article 7 combined with Article 24 (2) of the Charter.
Key legal question raised by the Court:
The legal question in the case was whether T, due to her criminal conviction, should be deprived of her Danish citizenship pursuant to the Danish Citizenship Act Section 8 B, applicable at the time of the ruling (this provision is now changed). This question included an assessment whether it was in accordance with Denmark’s obligations under international law, including T and her children’s right to a private- and family life under Article 7 in conjunction with Article 24(2) of the Charter, to deprive T of her Danish citizenship. This included a proportionality assessment between the seriousness of the crime on one side and the significance of the deprivation of citizenship for T on the other side.
Outcome of the case:
The Supreme Court noted, among others, that a proportionality assessment had to be made between the seriousness of the crime on one side and the significance of the deprivation of citizenship for the person concerned on the other side. In this regard the Court firstly noted that in general deprivation of citizenship should take place in cases of more serious crimes. The Court stated that, as a main rule, citizenship should be revoked when the person in question is sentenced to 2 or more years in prison. In the assessment of proportionality, the Court concluded that there was no reason to deviate from this main rule, based on, among others, the seriousness of the crime and the fact that T had significant ties to Bosnia and-Herzegovina, including that she had had lived there for nine years of her life and had a house and family in the country.
The Supreme Court furthermore stated, in general, that deprivation of citizenship had to comply with the EU legal principal of proportionality, including being in accordance with the Charter, especially Article 7 combined with Article 24 (2). Considering the nature and severity of the crime and T’s above mentioned ties with Bosnia and-Herzegovina, the Supreme Court concluded that deprivation of T’s citizenship would not conflict with the EU-legal principle of proportionality and/or Article 7 and 24 (2) in the Charter.
Thus, the Supreme Court founds no violation of Article 7 in the Charter.
As also stated in the above-mentioned Supreme Court Judgement, it follows from the practice of the Court of Justice of the European Union that, when revoking citizenship, Member States must observe, among other things, the principle of proportionality, regarding the significance for the person concerned, and where appropriate, for the family members of the person concerned, in relation to EU law. The EU Charter of Fundamental Rights, including the rights to respect for private and family life, which is set out the in Article 7 of the Charter, as this Article must be compared with the obligation to take into account the best interest of the child, which is recognized in the Article 24(2) of the Charter, read in conjunction with the judgement of the Court of Justice of the EU of 12 March 2019 in case C-221/17 (M.G. Tjebbes and others).
(…)
Since T is, thus, both a Danish and Bosnian-Herzegovinian citizen, and since she has been punished with imprisonment of 4 years for violation of § 114 e, 1st point, and § 114 j, subsection 1, under subsection 3, of the Criminal Code chapter 13, she must, as a main rule, be deprived of her Danish citizenship according to Section 8 B, subsection of the Citizenship Act. 1. T has a not insignificant connection to Bosnia andHerzegovina, where she lived for the first nine years of her life. She speaks fluent Bosnian, and her parents have a house in Bosnia and Herzegovina. She has an uncle in Bosnia andHerzegovina, where she has been several times – most recently in 2011 on vacation. The Supreme Court finds on this background - and regardless of T's strong connection to Denmark, in particular because of the eight children living here, all of whom have Danish citizenship - that there is no basis to deviate from the main rule in the Citizenship Act that she should be deprived of her citizenship. The fact that there are no grounds for deporting her, as stated further below, cannot lead to another conclusion. Given the nature and severity of T's crime and her association with Bosnia andHerzegovina and Denmark the Court found that deprivation of A´s citizenship will not be in violation of the requirements that follow from the European Court of Human Rights’ practice in cases of deprivation of citizenship. The same applies to the EU legal principle of proportionality and Article 7 and Article 24(2) of the EU Charter. The Supreme Court accedes to the result of the High Court.
”Som også anført i den nævnte Højesteretsdom følger det af EU-Domstolens praksis, at medlemsstaterne ved frakendelse af statsborgerskab skal iagttage bl.a. proportionalitetsprincippet for så vidt angår virkningerne heraf for den berørte persons situation og i givet fald for den pågældendes familiemedlemmer i forhold til EU-retten. Frakendelse af statsborgerskab skal være i overensstemmelse med EU’s charter om grundlæggende rettigheder, herunder særligt - 16 - retten til respekt for privatliv og familieliv, som er fastsat i chartrets artikel 7, idet denne artikel skal sammenholdes med forpligtelsen til at tage hensyn til barnets tarv, som anerkendes i chartrets artikel 24, stk. 2, jf. EU-Domstolens dom af 12. marts 2019 i sag C-221/17 (M.G. Tjebbes m.fl.).”
(...)
”Da T således er både dansk og bosnisk-hercegovinsk statsborger, og da hun er straffet med fængsel i 4 år for overtrædelse af § 114 e, 1. pkt., og § 114 j, stk. 1, jf. stk. 3, i straffelovens kapitel 13, skal hun som udgangspunkt frakendes sin danske indfødsret efter indfødsretslovens § 8 B, stk. 1. T har en ikke uvæsentlig tilknytning til Bosnien-Hercegovina, hvor hun boede de første ni år af sit liv. Hun taler flydende bosnisk og hendes forældre har et hus i Bosnien-Hercegovina. Hun har en farbror i Bosnien-Hercegovina, hvor hun flere gange – senest i 2011 – har været på ferie. Højesteret finder på denne baggrund – og uanset Ts stærke tilknytning til Danmark, navnlig som følge af de herboende otte børn, der alle har dansk indfødsret – at der ikke er grundlag for at fravige udgangspunktet i indfødsretsloven om, at hun frakendes sin indfødsret. Det forhold, at der ikke er grundlag for at udvise hende, jf. nærmere nedenfor, kan ikke føre til en anden vurdering. Henset til karakteren og grovheden af Ts kriminalitet og hendes tilknytning til henholdsvis Bosnien-Hercegovina og Danmark finder Højesteret, at en frakendelse ikke vil være i strid med de krav, som følger af Menneskerettighedsdomstolens praksis i sager om frakendelse af - 17 - statsborgerskab. Det samme gælder det EU-retlige proportionalitetsprincip samt artikel 7 og artikel 24, stk. 2, i EU-Charteret. Højesteret tiltræder herefter, at T er frakendt sin danske indfødsret.”