135. As mentioned in the Commentary on Principle 7.6, because deprivation of nationality has an
inherent penal nature, and its consequences are particularly severe and permanent, the right to
a public hearing must also extend to measures of deprivation even if these measures should
never be used as punishment and even where they are administrative and do not follow a prior
criminal conviction. The right to a fair trial also entails that everyone is entitled to certain
minimum procedural guarantees without discrimination.229 Some of these were already discussed
under Principle 7.6 and include, for instance, the right for any affected person to be informed
promptly and in detail in a familiar language of the nature and cause of the charges against
them.230
136. Any person deprived of their nationality must be able “to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance,
to be given it free when the interests of justice so require .231 This contains three distinct
guarantees. First, everyone has the right to be present during the proceedings in order to defend
themselves. According to the HRC, this provision
“[…] requires that accused persons are entitled to be present during their trial. Proceedings in
the absence of the accused may in some circumstances be permissible in the interest of the
proper administration of justice, i.e. when accused persons, although informed of the
proceedings sufficiently in advance, decline to exercise their right to be present. Consequently,
such trials are only compatible with article 14, paragraph 3(d) [ICCPR] if the necessary steps
are taken to summon accused persons in a timely manner and to inform them beforehand
about the date and place of their trial and to request their attendance.”232
137. Second, the person concerned has the right to be assisted by a lawyer if they desire. Third, if the
person is unable to afford legal assistance, but nevertheless wishes to be represented by a lawyer,
they shall be granted legal aid. Once a decision has been taken, the person concerned has the
right to “have access to a duly reasoned, written judgment of the trial court, clearly stating the
reasons underlying the decisions taken.233 According to the HRC, as expressed in General
Comment No. 32, this right must be respected in order for the person concerned to effectively
exercise their right to have the decision taken by a judicial body, or a relevant administrative body,
“reviewed by a higher tribunal according to law .234 Finally, everyone has the right not to be “tried
or punished again for an offence for which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of each country .235 This last guarantee is of
fundamental importance in cases of deprivation of nationality, as such measures must always be
considered to constitute ‘punishment’ for this purpose.236
229
Art. 14(3) ICCPR.
Art. 14(3)(a) ICCPR.
231 Art. 14(3)(d) ICCPR, see also Art. 6(3)(c) ECHR.
232
Human Rights Committee, ‘General Comment No. ’
CCPR C GC , para .
233
Human Rights Committee, ‘General Comment No. ’
CCPR C GC , para .
234 Art. 14(5) ICCPR.
235 Art. 14(7) ICCPR.
236 UN Human Rights Council, ’Human rights and arbitrary deprivation of nationality: Report of the Secretary-General‘, A HRC
,
para 20; CoE Committee on Legal Affairs and Human Rights AS Jur , ‘Withdrawing nationality as a measure to combat terrorism: a human
rights-compatible approach? Report’, AS Jur (2018) 49, para 6.
230
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