JOINT CONCURRING OPINION OF JUDGES LEMMENS AND RAVARANI

1. We voted on all points with our distinguished colleagues. To our regret, however, we cannot agree with the reasoning adopted by the majority with respect to the complaint relating to the annulment of the applicant ’ s citizenship (see paragraphs 52-54 and 58-71 of the judgment).

In our opinion, that reasoning is methodologically flawed. It also puts the blame for the violation of the applicant ’ s rights on the wrong organ of the Russian Federation. We will discuss both issues separately.

2. The Court ’ s present case-law deals with the issue of denial or revocation of citizenship in so many different ways that an impression of great confusion is created, to which more confusion is added by the present judgment (see point 1 below). We believe that it would be rather easy to come to a coherent approach (see point 2 below).

3. The applicant argues that the decision to annul his Russian citizenship amounts to a violation of Article 8 of the Convention. It thus would seem that his complaint raises two main issues: was there an interference with the right to respect for his private life, and if so, has Article 8 been violated? These are the classic issues to be examined under Article 8, and there is more than extensive case-law on each of them.

The Court in its case-law on Article 8 has developed principles which are generally applied in all cases relating to an alleged interference with the right to respect for private life. For unexplained reasons, however, these principles are not applied in cases concerning denial or revocation of citizenship. For that rather limited category of cases, the Court has thus far followed lines of reasoning that significantly derogate from the methodology that is followed in all other cases. Moreover, there is a growing divergence within the diverging reasons themselves.

The present case offered an opportunity to restore some order. Unfortunately however, the majority preferred to refine only slightly the existing, unclear case law rather than to thoroughly overhaul it. The result is, paradoxically, that the confusion is now even greater than before.

4. The majority are perfectly aware of the confusion created by the case-law to date. In paragraph 53, they refer to a number of different lines of analysis.

Before taking a closer look at these different types of reasoning, it is perhaps useful to recall that the starting point in cases of denial or revocation of citizenship is always the same: the Court notes that, although the right of citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (italics added). It seems that this statement was first made in Karassev v. Finland (( dec. ), no. 31414/96, ECHR 1999 ‑ II).

But this opening statement is not as clear as it may seem. What does it mean to “raise an issue”: does it mean that the measure complained of falls within the scope of application of Article 8, or that Article 8 is violated? And does an “issue” arise only after the denial of citizenship has been certified as being “arbitrary”, or is arbitrariness an object of the very analysis of the complaint itself? Finally, is the “impact” on the private life only a condition for the applicability of Article 8 (“because of”), or is it part of the analysis of the complaint under Article 8? All these questions are interlinked.

In none of the cases examined thus far by the Court has there been an attempt to clarify the meaning of this point of departure in the Court ’ s reasoning.

And yet, it seems that it is the ambiguity of the opening statement that has contributed to the existence of different approaches to Article 8 complaints in this area.

5. As acknowledged in paragraph 53 of the judgment, there are indeed various strands in the Court ’ s case-law.

Taking into account a somewhat broader sample of cases than those mentioned in the judgment, we would identify four main approaches:

- in Karassev (cited above) and Ramadan v. Malta (no. 76136/12, §§ 86 ‑ 94, 21 June 2016), the Court examined both whether the denial or revocation was arbitrary and whether there were serious consequences for the applicant, in order to determine whether an issue arose ( Karassev ) or whether an assessment of the State ’ s obligations under Article 8 was warranted ( Ramadan , § 94);

- in Fedorova and Others v. Latvia (( dec. ), no. 69405/01, 9 October 2003, Kolosovskiy v. Latvia (( dec. ), no. 50183/99, 29 January 2004, and Ivanov v. Latvia (( dec. ), no. 55933/00, 25 March 2004), which all dealt with an alleged denial of citizenship, the Court concluded from the absence of arbitrariness that Article 8 was not applicable, without going into the issue of the impact on the applicant ’ s private life;

- in Genovese v. Malta (no. 53124/09, § 33, 11 October 2011), it concluded from the impact of the denial on the private life of the applicant that the measure fell within the scope of Article 8, without mentioning the arbitrariness of the measure as a possible factor triggering the applicability of Article 8; similarly, in Alpeyeva and Dzhalagoniya v. Russia (nos. 7549/09 and 33330/11, §§ 111-27, 12 June 2018) and Ahmadov v. Azerbaijan (no. 32538/10 , §§ 46-55), 30 January 2020), the Court first examined the consequences of the denial in order to decide whether or not there was an interference with the right to respect for private life, and, after finding that the measure indeed amounted to an interference, then went on to examine, on the merits, whether the measure was arbitrary

- in Savoia and Bounegru v. Italy (( dec. ), no. 8407/05, 11 July 2006), K2 v. the United Kingdom (( dec. ), no. 42387/13, 52-64, 7 February 2017), Mansour Said Abdul Salam Mubarak v. Denmark (( dec. ), no. 74411/16, §§ 64-71, 22 January 2019) and Ghoumid and Others v. France (nos. 52273/16 and 4 others, §§ 45-52, 25 June 2020), the Court did not explicitly address the issue of the applicability of Article 8, but examined whether the denial or revocation was arbitrary and what the consequences were for the applicant, in order to conclude that the complaint was well-founded or (manifestly) ill-founded.

The majority in the present case follow the methodology in the third group of cases. They refer to the judgment adopted by the Grand Chamber in Denisov v. Ukraine ([GC] , no. 76639/11, §§ 107-09, 25 September 2018) to justify their choice for the “consequence-based approach” in order to determine whether or not there has been an interference with the right to respect for private life (see paragraph 58 of the judgment). No specific justification is given for the “arbitrariness approach” in examining the merits of the complaint (ibid.).

6. There is confusion not only with respect to the general approach to determining whether a denial or revocation of citizenship constitutes an interference with the right to respect for private life and whether Article 8 of the Convention has been violated. The two elements used in each of the various forms of reasoning (arbitrariness, impact) are themselves also sources of confusion.

7. We will begin with the arbitrariness element.

Arbitrariness is something to be avoided, and protection against arbitrary interference is in general referred to by the Court as one of the elements of the required quality of the “law”, as the latter word is used in the phrase “in accordance with the law” or similar phrases (see, among many other judgments, Mihalache v. Romania [GC], no. 54012/10, § 112, 8 July 2019, Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 93, 20 January 2020, and Muhammad and Muhammad v. Romania [GC], no. 80982/12, § 118, 15 October 2020). By contrast, in the case-law on revocation of citizenship, the relationship between arbitrariness and “in accordance with the law” is turned upside down: the absence of arbitrariness is characterised by a number of elements, among them “whether the impugned measure was in accordance with the law” (see paragraph 63 of the judgment, with further references). No explanation for this derogation from the ordinary way of reasoning is given.

The other elements in an absence of arbitrariness, as specifically enumerated in cases concerning revocation of citizenship, are the existence of procedural safeguards accompanying the impugned decision, and a diligent and swift reaction by the authorities to the emergence of the ground for revocation of citizenship (ibid.). This approach is to be contrasted with the general approach in Article 8 cases: the fairness of proceedings and the procedural guarantees afforded to the applicant are normally factors to be taken into account when assessing the proportionality of an interference with his or her fundamental rights (see Kyprianou v. Cyprus [GC], no. 73797/01, § 171, ECHR 2005 ‑ XIII; Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 133, 17 May 2016; and Baka v. Hungary [GC], no. 20261/12, § 161, 23 June 2016 ). In other words, the existence of procedural safeguards is a factor normally linked to the requirement of a fair balance between the rights of an individual and the competing public or private interests (or to the “necessity” of an interference), not to the quality of the law.

8. When it comes to the impact or consequences of the impugned measure on the private life of the applicant, the question arises what exactly should be taken into account: is it the impact as such, or is it the impact weighed against the general interest served by the denial or revocation of citizenship? Whereas what generally counts in cases involving Article 8 issues is the above-mentioned fair balance, in most of the case-law on denial or revocation of citizenship only the seriousness of the negative consequences for the applicant is assessed (see Karassev , cited above; Genovese , cited above, § 33; Ramadan , cited above, §§ 90-93; K2 v. the United Kingdom , cited above, §§ 62-63; Alpeyeva and Dzhalagoniya , cited above, § 111-15; and Ahmadov , cited above, § 46 ). The majority in the present case follow this trend (see paragraphs 59-62 of the judgment). However, in a minority of cases, the impact for the applicant of the revocation of citizenship is weighed against the seriousness of the ground for revocation, thus amounting to a proportionality test (see Mansour Said Abdul Salam Mubarak , cited above, §§ 69-70, and Ghoumid and Others , cited above, §§ 49-51 ).

9. The picture drawn above is one of a lack of coherence with the case ‑ law on Article 8 generally and, moreover, an internal inconsistency within the specific case-law on denial or revocation of citizenship. Such a lack of coherence is prejudicial to legal certainty.

In a sensitive area of growing importance, there is a need for a more coherent approach, in line with the generally applicable principles relating to Article 8 of the Convention. Such an approach is, in our opinion, perfectly possible. We will try to briefly outline the contours of an alternative approach.

10. The first question is whether Article 8 of the Convention is applicable (and whether there has been an interference with the applicant ’ s right to respect for private life). On this point, we agree with the majority ’ s approach, namely basing the reasoning only on whether the impugned measure had serious negative effects on the applicant ’ s private life. This is the “consequence-based approach” to the applicability of Article 8, as outlined in Denisov with respect to measures affecting an individual ’ s professional life (cited above, §§ 107-09). We see no reason of principle why this approach could not be applied in other areas as well.

In this respect, we would like to add two clarifications.

First, we prefer this approach to the one that considers that a person ’ s citizenship is part of his or her social identity and thus per se part of his or her private life; the denial or revocation of citizenship would thus have a direct impact on the person ’ s private life (see the suggestions in Genovese , cited above, § 33; Mennesson v. France , no. 65192/11, § 97, ECHR 2014 (extracts); and Ghoumid and Others , cited above, § 43). That could perhaps be the case for persons who have a strong bond with the country of their citizenship (see the arguments given in Petropavlovskis v. Latvia , no. 44230/06, § 80, ECHR 2015), but that is not necessarily the case for everyone.

Second, there is in our opinion no room for an a priori assessment of whether the impugned measure was arbitrary in order to come to the conclusion that Article 8 is applicable. Issues relating to arbitrariness belong to the examination of the merits.

11. Turning then to the merits, we would simply follow the general rule, repeated over and over again in the Court ’ s case-law: any interference with the right to respect for private life constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that is or are legitimate under paragraph 2 and can be regarded as “necessary in a democratic society” (see, as the most recent expressions of this approach in the Grand Chamber ’ s case-law, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 167, 24 January 2017, and Strand Lobben and Others v. Norway [GC], no. 37283/13, § 202, 10 September 2019). That is all. There is no need for an ad hoc reasoning, which has no basis in the text of Article 8.

Here too, we would like to add two clarifications.

With regard to the expression “in accordance with the law”, we would follow the general interpretation given to that and similar expressions. “[It] not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects ... The notion of ‘ quality of the law ’ requires, as a corollary of the foreseeability test, that the law be compatible with the rule of law; it thus implies that there must be adequate safeguards in domestic law against arbitrary interferences by public authorities” (see, among many other authorities, Magyar Kétfarkú Kutya Párt , cited above, § 93). The legality condition as applied in the case-law on denial or revocation of citizenship can naturally find its place in the context of the condition that the measure should be “in accordance with the law”.

As for the requirement of the necessity of the interference in a democratic society, here too there is no need to reinvent the wheel. In determining whether the denial or revocation was “necessary”, “the Court [should] consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 ... The notion of necessity further implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests ...” (see, among many other authorities, Strand Lobben and Others , cited above, § 203). The conditions relating to the existence of procedural safeguards and the manner in which the authorities acted, as applied in the case law on denial or revocation of citizenship, can be part of the assessment of whether the interference was “necessary”. That assessment must in the end also include, as indicated in the quotation above, an assessment of whether a fair balance has been struck between the right of the applicant to respect for his or her private life and any competing rights or interests.

12. We have no hesitation whatsoever in concluding, like the majority, that in the present case there has been a violation of Article 8.

The question is: how should the Court reach such a conclusion?

13. The majority argue that there are a number of shortcomings in the applicable legal framework, namely the Russian Citizenship Act and the Regulation on the Examination of Issues Related to Citizenship of the Russian Federation.

They argue, in particular, that the relevant provisions are not sufficiently clear, as these provisions do not specify the nature of the information that, if not adequately submitted in the application for citizenship, can be the basis for revoking the citizenship thus granted (see paragraph 67 of the judgment).

They also argue that under the applicable provisions the authorities were not required to give a reasoned decision specifying all the factual grounds on which it had been taken (see paragraph 68 of the judgment). On this latter point, they refer to the Government ’ s statement that, “after it had been established that the information submitted by the applicant was incomplete, the authorities had no other choice but to annul the decision granting him Russian citizenship”, and they add that “it has not been shown that the national courts had to consider” a number of relevant factors (see paragraph 69 of the judgment).

14. To our regret, we are unable to follow our colleagues in their blunt criticism of the legal framework, as though the applicable rules did not permit the competent authorities to apply them in a Convention-compliant way.

The law is the law as interpreted by the courts. In this case, there was clear case-law of the Constitutional Court on how the Russian Citizenship Act was to be applied. On 21 April 2011 and 25 October 2016 –that is, well before the decision was taken to revoke the applicant ’ s citizenship – the Constitutional Court had interpreted section 22 of the Act in such a way that it could be applied only “in cases where individuals did not satisfy the conditions required for obtaining Russian citizenship” (see paragraphs 37 ‑ 38 of the judgment). This means that section 22 does not offer a basis for a “blind” revocation of citizenship, irrespective of the concrete importance of the information that has been concealed from the authorities.

Moreover, in a series of decisions, including on an appeal by the applicant himself, the Constitutional Court stated that “the competent authorities should take into account surrounding circumstances, such as the time elapsed since the decision granting Russian citizenship for their decision to comply with the requirements of necessary and proportionate interference with human rights” (decisions of 15 January, 12 and 28 February 2019, referred to in paragraph 39 of the judgment). This is a clear application of some of the principles set out in this Court ’ s case-law, and allows for a balancing of interests in each concrete case. Admittedly, the Constitutional Court made these statements after the decision to revoke the applicant ’ s citizenship had been taken. However, since the statement reflects principles taken from this Court ’ s pre-existing case-law, it should be assumed that there had been nothing to prevent the competent authorities from previously taking these principles into consideration in the applicant ’ s case, and thus to apply the Russian Citizen Act in a Convention-compliant way.

It is true that section 54 of the Regulation on the Examination of Issues Related to Citizenship of the Russian Federation, as in force at the material time, did not explicitly provide for an obligation to state the reasons for the annulment of a decision on Russian citizenship (see paragraph 34 of the judgment). It was only by a presidential decree of 17 June 2020 that such an obligation was introduced in section 54. There is now an explicit obligation to describe the circumstances which led to the adoption of the annulment decision (see paragraph 35 of the judgment). It seems to us, however, that there was nothing to prevent the competent authorities in an individual case from giving such reasons already, on the basis of the Russian Citizen Act as interpreted by the Constitutional Court.

15. The violation of the applicant ’ s rights is not therefore to be situated at the level of the legislature. The legal framework offered the competent authorities, both within the administration and the judiciary, the opportunity to refrain from revoking the applicant ’ s citizenship if there were no relevant and sufficient reasons for doing so. We cannot agree with the Government ’ s argument that the authorities had no other choice but to revoke the applicant ’ s citizenship.

It can be argued that the competent authorities applied the provisions of domestic law in a way that was incompatible with the Constitutional Court ’ s interpretation of the Russian Citizens Act. The conclusion then would be that the impugned measure lacked a legal basis in domestic law, and for that reason (which is different from the one advanced by the majority) was not “in accordance with the law”.

Alternatively, it is also possible to leave open the question whether the measure was in accordance with domestic law.

In any event, the domestic authorities adopted an “excessively formalistic approach” (see paragraph 70 of the judgment), paying no attention to any “surrounding circumstances” and thereby omitting any balancing of rights and interests. In these circumstances, they did not justify the proportionality of the impugned measure in the light of the aim pursued (the protection of national security, according to the Government; see paragraph 48 of the judgment). It has therefore not been demonstrated that the measure was “necessary in a democratic society”.