Zitieren als:
EGMR, Beschluss vom 05.03.2020 - 3599/18 M.N. u.a. gg. Belgien - M28416

Kein humanitäres Visum für Asylantragstellung:

1. Die bloße Tatsache, dass eine Person in der Auslandsvertretung eines EMRK-Vertragsstaats, zu dem sie keine weitere Verbindung hat, unter Geltendmachung der Verletzung von Art. 3 EMRK ein Visum aus humanitären Gründen beantragt, um später in diesem Vertragsstaat einen Asylantrag stellen zu können, reicht nicht aus, um eine Gerichtsbarkeit dieses Staates im Sinne des Art. 1 EMRK zu begründen.

2. Dies würde dazu führen, dass Individuen durch die Einleitung eines Verwaltungsverfahrens bei einer Auslandsvertretung einseitig über den Anwendungsbereich der EMRK entscheiden könnten. Damit würde eine unbegrenzte Verpflichtung der Vertragsstaaten geschaffen, Personen die Einreise zu gestatten, die außerhalb ihrer Gerichtsbarkeit Menschenrechtsverletzungen ausgesetzt sind. Dies verstößt gegen den völkerrechtlichen Grundsatz, dass Vertragsstaaten das Recht haben, die Einreise, den Aufenthalt und die Ausweisung Staatsangehöriger anderer Staaten zu kontrollieren (vgl. EGMR, Entscheidung vom 27.05.2008 - 26565/05, N. gg. Großbritannien - M13624; EGMR, Urteil vom 14.03.2017 - 47287/15 - Ilias und Ahmed gg. Ungarn (engl.) - M24824, siehe hierzu auch EGMR-Kolumne zu Inhaftierung). 

3. Davon unberührt bleiben Bestrebungen der Vertragsstaaten, Zugang zu Asylverfahren durch ihre Auslandsvertretungen zu gewähren.

4. Die begehrte Einreise in das Territorium eines Vertragsstaats, die sich aus der Erteilung der Visa ergeben hätte, begründet kein ziviles Recht im Sinne des Art. 6 EMRK.

(Leitsätze der Redaktion)


Schlagwörter: Visa, Drittstaat, Libanon, Syrien, Asylantrag, humanitäre Gründe, humanitäres Visum, Gerichtsbarkeit, Zuständigkeit, Anwendungsbereich, Europäische Menschenrechtskonvention, EGMR, Asylverfahren, ziviles Recht, Verwaltungsverfahren, Visumsverfahren, Einreise, unmenschliche oder erniedrigende Behandlung, Folter, wirksamer Rechtsbehelf, faires Verfahren, M.N.,
Normen: EMRK Art. 1, EMRK Art. 3, EMRK Art. 13, EMRK Art. 6,


3. The Court’s assessment as to jurisdiction

(a) Recapitulation of the applicable case-law

96. The Court reiterates that Article 1 of the Convention limits its scope to "persons" within the "jurisdiction" of the States Parties to the Convention. [...]

98. As to the meaning to be given to the concept of “jurisdiction” for the purposes of Article 1 of the Convention, the Court has emphasised that, from the standpoint of public international law, a State’s jurisdictional competence is primarily territorial (see Güzelyurtlu and Others, cited above, § 178; see also Banković and Others, cited above, §§ 59-61). It is presumed to be exercised normally throughout the territory of the State concerned (see Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II). [...]

101. The Court has recognised that, as an exception to the principle of territoriality, acts of the States Parties performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 of the Convention. This is well-established case-law (see, among other authorities, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 314, ECHR 2004-VII; Medvedyev and Others v. France [GC], no. 3394/03, § 64, ECHR 2010; Al-Skeini and Others, cited above, § 131; and Güzelyurtlu and Others, cited above, § 178). [...]

104. Thus, the Commission and subsequently the Court concluded that a State was exercising its jurisdiction extraterritorially when, in an area outside its national territory, it exercised public powers such as authority and responsibility in respect of the maintenance of security (see X. and Y. v. Switzerland, cited above; Drozd and Janousek v. France and Spain, 26 June 1992, §§ 91-98, Series A no. 240; Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99 and 2 others, § 20, 14 May 2002; Al-Skeini and Others, cited above, §§ 143-150; and Al-Jedda v. the United Kingdom [GC], no. 27021/08, §§ 75-96, ECHR 2011). [...]

106. As the Court reiterated in the Al-Skeini and Others judgment (cited above, § 134), a State Party’s jurisdiction may arise from the actions or omissions of its diplomatic or consular officials when, in their official capacity, they exercise abroad their authority in respect of that State’s nationals or their property (see X. v. Germany, cited above; X v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977, Decisions and Reports 12, p. 73.; and S. v. Germany, no. 10686/83, Commission decision of 5 October 1984, D.R. 40, p. 191), or where they exercise physical power and control over certain persons (see M. v. Denmark, cited above, p. 193). [...]

109. By way of comparison, the Court emphasises that the above-cited cases are to be distinguished from those in which the facts contained an international element but which did not involve extraterritoriality for the purposes of Article 1 of the Convention. This was the situation with regard to cases under Article 8, concerning decisions taken with regard to individuals, irrespective of whether they were nationals, who were outside the territory of the respondent State but in which the question of that State’s jurisdiction had not arisen, given that a jurisdictional link resulted from a pre-existing family or private life that this State had a duty to protect (see Nessa and Others v. Finland (dec.), no. 31862/02, 6 May 2003; Orlandi and Others v. Italy, no. 26431/12, 14 December 2017; and Schembri v. Malta (dec.), no. 66297/13, 19 September 2017).

(b) Application in the present case

110. The Court notes, firstly, that the contested decisions were taken by the Belgian authorities in Belgium. They were issued in response to visa applications submitted by the applicants to the consular services of the Belgian Embassy in Beirut, with a view to obtaining authorisation to enter Belgium so that they could claim asylum in that country and avoid treatment in breach of Article 3 of the Convention to which they alleged that they were exposed in Aleppo. The decisions refusing to grant the requested visas subsequently passed through the embassy’s consular services, which notified the applicants.

111. The applicants have submitted that in the present case the question of “jurisdiction” within the meaning of Article 1 of the Convention does not arise solely in terms of the extraterritorial scope of the contested decisions. In their view, in processing their visa applications the Belgian authorities had ruled on the issue of the conditions for entry to the national territory. In so doing, those authorities had taken national decisions in respect of the applicants, bringing them under Belgium’s jurisdiction.

112. The Court accepts that in ruling on the applicants’ visa applications, the Belgian authorities took decisions concerning the conditions for entry to Belgian “territory” and, in so doing, exercised a public power. In itself, however, this finding is not sufficient to bring the applicants under Belgium’s "territorial" jurisdiction within the meaning of Article 1 of the Convention. The mere fact that decisions taken at national level had an impact on the situation of persons resident abroad is also not such as to establish the jurisdiction of the State concerned over those persons outside its territory (see Banković and Others, cited above, § 75).

113. In order to determine whether the Convention applies to the present case, the Court must examine whether exceptional circumstances existed which could lead to a conclusion that Belgium was exercising extraterritorial jurisdiction in respect of the applicants. As it has pointed out previously (see paragraph 102), this is primarily a question of fact, which requires it to explore the nature of the link between the applicants and the respondent State and to ascertain whether the latter effectively exercised authority or control over them. [...]

118. In this connection, the Court accepts the argument of the respondent Government, supported by the third-party intervening Governments, that none of the case-law precedents cited in paragraph 106 above are applicable to the present case, given that it contains none of the connecting links which characterised the above-mentioned cases. Firstly, the applicants are not Belgian nationals seeking to benefit from the protection of their embassy. Secondly, at no time did the diplomatic agents exercise de facto control over the applicants. The latter freely chose to present themselves at the Belgian Embassy in Beirut, and to submit their visa applications there – as indeed they could have chosen to approach any other embassy; they had then been free to leave the premises of the Belgian Embassy without any hindrance.

119. Even supposing, in the alternative, that an argument can be made from the administrative control exercised by the Belgian State over the premises of its embassies, the foregoing case-law (see paragraph 105) indicates that this criterion is not sufficient to bring every person who enters those premises within Belgium’s jurisdiction. [...]

121. Lastly, the applicants argue that they placed themselves under the Belgian State’s “jurisdiction” by bringing proceedings at domestic level with a view to securing their entry to Belgium, and that in the course of these proceedings the relevant national bodies exercised their full and complete authority (see paragraph 82) above. The Court has already rejected this argument in so far as it seeks to establish territorial jurisdiction over the applicants on Belgium’s part (see paragraph 112 above). However, it must still ascertain whether the fact of having brought proceedings at national level was capable of creating an exceptional circumstance which was sufficient to trigger, unilaterally, an extraterritorial jurisdictional link between the applicants and Belgium within the meaning of Article 1 of the Convention.

122. In the Court’s opinion, this approach is not supported by the case-law. In this connection, it points out that in the above-cited case of Markovic and Others (see paragraph 107 above), it declared inadmissible, for lack of jurisdiction, the applicants’ substantive complaints under the Convention provisions other than Article 6 (see Markovic and Others (dec.), cited above, and Markovic and Others [GC], cited above, §§ 4 and 49-50; see also, mutatis mutandis, Banković and Others, cited above, §§ 83-84). Nor can the proceedings giving rise to Turkey’s jurisdiction in the above-cited Güzelyurtlu and Others case (see paragraph 107 above) be compared to the administrative proceedings brought by the applicants in the present case. The relevant proceedings in the Güzelyurtlu and Others case – which created a jurisdictional link with Turkey – were criminal proceedings opened at the initiative of the Turkish authorities (who had control over the “Turkish Republic of Northern Cyprus”). They thus corresponded to action by a Contracting State in the context of its procedural obligations under Article 2. This is very different from administrative proceedings brought at the initiative of private individuals who have no connection with the State concerned except for proceedings which they themselves freely initiated, and without the choice of this State, namely Belgium, being imposed by any treaty obligation.

123. In contrast, the submissions of the respondent Government and the third-party intervening Governments are supported by the decision adopted in the case of Abdul Wahab Khan. The Court made clear in that decision that the mere fact that an applicant brings proceedings in a State Party with which he has no connecting tie cannot suffice to establish that State’s jurisdiction over him (see Abdul Wahab Khan, cited above, § 28). The Court considers that to find otherwise would amount to enshrining a near-universal application of the Convention on the basis of the unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction (ibid., § 27). If the fact that a State Party rules on an immigration application is sufficient to bring the individual making the application under its jurisdiction, precisely such an obligation would be created. The individual in question could create a jurisdictional link by submitting an application and thus give rise, in certain scenarios, to an obligation under Article 3 which would not otherwise exist.

124. Such an extension of the Convention’s scope of application would also have the effect of negating the well-established principle of public international law, recognised by the Court, according to which the States Parties, subject to their treaty obligations, including the Convention, have the right to control the entry, residence and expulsion of aliens (see, among many other authorities, N. v. the United Kingdom [GC], no. 26565/05, § 30, ECHR 2008, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 125, 21 November 2019). In this context, the Court notes that the CJEU ruled in a case similar to the present one that, as EU law currently stands, the issuing of long-stay visas falls solely within the scope of the Member States’ national law (see paragraphs 71-73 above).

125. In conclusion, the Court considers that the applicants were not within Belgium’s jurisdiction as regards the circumstances in respect of which they complain under Article 3 of the Convention. Having regard to that conclusion, the same finding applies as regards the complaint under Article 13.

126. Lastly, the Court notes that this conclusion does not prejudice the endeavours made by the States Parties to facilitate access to asylum procedures through their embassies and/or consular representations (see N.D. and N.T. v. Spain, cited above, § 222).

B. Articles 6 and 13 of the Convention

127. The applicants alleged that there had been a violation of Article 6 § 1 of the Convention in that it was impossible for them to pursue the execution of the Brussels Court of Appeal’s judgment of 7 December 2016, ordering the Belgian State to execute the Aliens Appeals Board’s judgment of 20 October 2016, which had instructed the Belgian authorities to issue the visas requested by them under Article 3 of the Convention. They considered that this also amounted to a violation of the right to an effective remedy within the meaning of the above-cited Article 13. [...]

136. In such a situation, while Article 6 § 1 of the Convention may be applicable, it is on condition, however, that the advantage or privilege, once granted, gives rise to a civil right (see Regner v. the Czech Republic judgment ([GC], no. 35289/11, § 105, 19 September 2017).

137. As regards the nature of the right in question in the present case, the Court, like the Belgian Government, considers that the entry to Belgian territory which would have resulted from the visas being issued does not engage a civil right within the meaning of Article 6 § 1 of the Convention, as is also the case in respect of every other decision relating to immigration and the entry, residence and removal of aliens. It is settled case-law that these areas are outside the scope of Article 6 of the Convention (see, among other authorities, Maaouia v. France [GC], no. 39652/98, § 40, 5 October 2000, and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 82-83, 4 February 2005).

138. Admittedly, the proceedings subsequently pursued by the applicants in the ordinary courts – in this case the Brussels Court of Appeal – in order to secure execution of the Aliens Appeals Board’s judgment of 20 October 2016 concerned the State’s refusal to execute a decision delivered by an administrative court, and the court of appeal, in establishing its jurisdiction under domestic law, held that the dispute before it concerned a civil right. That being stated, the Court considers that the object of those proceedings was solely to continue the proceedings challenging the merits of the authorities’ decisions refusing to issue the visas.

139. In any event, the Court considers that the underlying proceedings do not become “civil” merely because their execution is sought before the courts and they give rise to a judicial decision. Equally, the proceedings to secure execution of the Brussels Court of Appeal’s judgment of 7 December 2016 shared the same nature as the procedure for granting the visas requested by the applicants (see, mutatis mutandis, Pierre-Bloch v. France, 21 October 1997, § 51, Reports 1997-VI, and Panjeheighalehei v. Denmark (dec.), no. 11230/07, 13 October 2009).

140. Accordingly, Article 6 § 1 of the Convention is not applicable in the present case. This conclusion is not affected by the fact that the Belgian courts did not contest the applicability of Article 6 to the proceedings in issue. The Convention does not prevent the States Parties from granting more extensive judicial protection in respect of the rights and liberties guaranteed therein than that implemented by it (Article 53). [...]