In M.N. and others v. Belgium, the Grand Chamber of the European Court of Human Rights has examined whether the Convention is applicable to asylum claims filed from foreign embassies. The Court
The applicants had travelled to the Belgian embassy in Beirut. The applied for visa in order to be able to travel to Belgium and to claim asylum.
The visa applications were denied. The applicants appealed, ultimately to no avail. The applicants initiated judicial proceedings in Belgium but their visa requests were denied. They never entered Belgian territory.
The applicants submitted an application to the European Court of Human Rights. They relied in particular on article 3 ECHR. They argued that by denying them visa, Belgium had exposed them to the risk of being tortured. In addition, they referred to article 6 and 13 ECHR.
Pursuant to article 1 ECHR, the contracting states shall secure the rights enshrined in the Convention to everybody within their jurisdiction. The question whether the applicants could invoke the protection afforded by the ECHR hinged on whether they were within Belgian jurisdiction when they filed their asylum claim.
It is long-standing jurisprudence of the Court that the term jurisdiction has to be understood primarily in a territorial sense. States have jurisdiction over the territory within their borders.
However, the Court has also accepted exceptions to this principle:
- Effective control over an area; if a state exercises effective control over an area outside of its territory, it has jurisdiction over that territory. That is most frequently the case in the context of military conflicts. For example, in Al-Skeini v UK, the Court held that the UK exercised effective control over parts of Iraq during the war in Iraq. Consequently, it had to observe the ECHR during its engagement.
- Physical control over a person. States are bound by the ECHR if they exersice physical control over a person outside of their territory. An example is the Öcalan case. PKK leader Öczalan was apprehended by members of Turkish security forces in Kenia and taken on on airplane. The Court ruled that he was within Turkey’s jurisdicton even though he was not on Turkish ground.
- In addition to that, the Court has recognized in Güzelyurtlu v. Turkey that the launching by a state of a criminal investigation outside of its territory may create a ‘jurisdictional link” which brings the matter into the state’s jurisdiction. In that case, a Turkish businessman and his family had been killed on the territory of the ‘Turkish Republic of Northern Cyprus”. Turkish authorities had started an investigation. The Court held that this investigation had to satisfy the requirements of an ‘effective investigation’ under article 2 ECHR (in addition to that the Court stated that Turkey had also jurisdiction since it exercised effective control of the ‘Turkish Republic of Northern Cyprus’).
The applicants argued that they had been within Belgium’s jurisdiction when submitting their request. Belgium had established rules regarding the entry into the country which were enforced by staff working with the embassy. Thus, they had been under their jurisdiction. Pointing to the Court’s long-standing jurisprudence that individuals must not be expelled if there is a likelihood that they will be tortured, they submitted that exposing them to the risk of torture by denying their visa request violated the ECHR.
The Court rejected the argument that the processing of the visa applications by staff of the Belgian embassy had brought the applicants into Belgian jurisdiction. It stated that the classic test had to be applied to establish whether Belgium had had jurisdiction.
The Court pointed out that staff of the embassy had never exercised physical control over the applicants. The applicants had entered the embassy voluntarily and had been free to leave at any time.
The Court’s jurisprudence on expulsion was not pertinent, since the applicants had never been on Belgian territory. Güzelyurtlu v Turkey was not pertinent either. In that case, the Turkish authorities had launched in investigation on the basis of their obligations under article 2 ECHR. This was, according to the Court, very different from an administrative procedure initiated by the applicants. Consequently, Belgium had not had jurisdiction.
The Court declared the application inadmissible.