Syria fighters and their Belgian nationality
Several weeks ago, a Dutch delegation picked up a Dutch woman and three children from a Kurdish prison camp in northeastern Syria. The woman will be detained and prosecuted upon arrival in the Netherlands.
Belgium, meanwhile, also retrieved women and children from the conflict zone. Actual (male) Syrian fighters, on the other hand, did not, not even for the purpose of bringing them to justice. Belgium did, however, decide to take a whole number of them to sue during their absence or, legally worded, by default.
As part of quite a few of these proceedings in absentia, there was no initial request that the Syrian fighters be stripped of their Belgian nationality.
Some time later - at the time when some Syrian fighters were informed that they had been sentenced in absentia - they lodged an opposition because they were never allowed to receive the initial summons, so that the proceedings had to be conducted again, and it is during these opposition proceedings that the cancellation of Belgian nationality was suddenly requested by the public prosecutor.
But, is that allowed just like that? And if so, what conditions must be respected? These are the questions that will be answered in this contribution.
Expiration of Belgian nationality
The expiration statement is a punishment that can indeed be imposed by the Belgian criminal court. However, before a Belgian Syrian fighter can be expelled from his Belgian nationality by the criminal court, he must various conditions fulfilled.
For example, the same Belgian has yet to mention a other nationality to dispose of, so that he does not become stateless in the event that he is revoked of his Belgian nationality.
In addition, the Belgian may not have obtained his nationality via a parent who was Belgian on the day of his birth.
Finally, the aforementioned Belgian must be sentenced to a imprisonment of at least five years, without a delay, for a terrorist crime.
In reality, mainly Belgian Moroccans who went to Syria and were subsequently convicted of a terrorist crime will no longer be able to enjoy Belgian citizenship.
Indeed, Moroccan nationality laws are extremely broad, which means that, in the eyes of the Moroccan government, persons of Moroccan origin will almost always be and remain Moroccan.
So those same Belgian Moroccans will also never become stateless if their other, Belgian nationality is taken away.
No penalty enhancement after resistance
What can nevertheless prevent the nationality of a Belgian Syrian fighter from being taken away follows from the specific concept of resistance.
Indeed, the legal status of the opposing party should not be aggravated with respect to what was decided in the default judgment.
In other words, after someone was tried and convicted in his absence and after that same person filed an opposition, the judge may no harsher punishment impose than that punishment imposed during the defendant's absence.
Or to put it another way, the criminal court may not pronounce a sentence enhancement with respect to the defendant on objection.
Thus, if the lapse was not initially imposed during default proceedings, it cannot be imposed after opposition.
To link back to reality, however, it should be noted that the Public Prosecutor's Office will often try to argue that the deprivation of Belgian nationality is not a punishment and that the imposition of that "measure" after opposition is therefore not a punishmentaggravation and thus should still be possible.
At a minimum, the prosecutor's office will ask the judge to reduce the initial prison sentence imposed so that - even if the expungement were a punishment - there would still be no increase in sentence overall. But here one must be careful that the sentence is still above five years. Indeed, if not, the lapse is not possible at all since one of the conditions would not be met.
In conclusion, Belgian nationality can indeed be taken away from convicted Syrian fighters with a second nationality but some additional hurdles will have to be taken in the context of resistance proceedings.
Would you like more information about this or to be assisted by a specialized lawyer? Please feel free to contact us at info@bannister.be or at 03.369.28.00
