PARTLY DISSENTING OPINION OF JUDGE KTISTAKIS, JOINED BY JUDGE PAVLI

I voted against points 5 and 7 of the operative provisions, to the effect that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicants, as concluded by the majority (Article 41 of the Convention).

The present case has allowed the Grand Chamber to develop and clarify its sporadic case-law on the right not to be expelled from, and the right to enter, the territory of the State of one’s nationality, under Article 3 of Protocol No. 4. More specifically, it was, at a minimum, the lack of effective protection against arbitrariness which mainly characterised this case (see, among others, paragraphs 283 and 295 of the judgment). The applicants have certainly experienced distress because of this long-lasting arbitrariness which continued even after the hearing of the case by the Grand Chamber, when the French authorities organised the return to national territory of thirty-five minors of French nationality and sixteen mothers, but the applicants’ daughters and grandchildren were not among them (see paragraph 28 of the judgment). Thus, in my view, the Court’s finding of a violation alone cannot constitute just satisfaction.

[1] Protocol No. 4 entered into force on 2 May 1968. To date, forty-two States have ratified it: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Montenegro, the Netherlands, North Macedonia, Norway, Poland, Portugal, the Republic of Moldova, Romania, San Marino, Serbia, the Slovak Republic, Slovenia, Spain, Sweden and Ukraine.

[2] All references to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

[3] While it may be reasonable to read some implied exceptions into the absolute ban, so far they have only been found, or presumed, to have been justified as temporary measures, based on very compelling public interest grounds (see paragraph 248 in fine of the judgment).

[4] Article 15 of the Universal Declaration on Human Rights provides as follows:

“1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

[5] The fact that some States have used or contemplated using deprivation of citizenship as an alternative to the refusal to repatriate family members of ISIS fighters (see paragraph 249 of the judgment) does not change this conclusion. The distinction has strong historical roots: for example, in ancient Rome citizens were sometimes subjected to banishment without formally losing their Roman citizenship or related rights.

[6] See Collected Edition of the “Travaux Preparatoires” of Protocol No. 4 to the Convention , pp. 73 and 113, available at: https://www.echr.coe.int/LibraryDocs/Travaux/ECHRTravaux-P4-BIL2907919.pdf. The final version of Article 12 § 4 of the ICCPR provides as follows: “No one shall be arbitrarily deprived of the right to enter his own country.”

[7] See the decision of the UN Committee on the Rights of the Child of 8 February 2022, reported at paragraph 107 of the judgment, which found that “the fact that the State party [had] not protected the child victims constitute[d] a violation of their rights under Articles 3 and 37 (a) of the [CRC] … and the failure of the State party to protect the child victims against an imminent and foreseeable threat to their lives constitute[d] a violation of Article 6 § 1 of the [CRC]” (point 6.11).