ECtHR – M.N. and others v. Belgium, Application no. 3599/18, 5 May 2020

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Country of Applicant: 
Date of Decision: 
European Court of Human Rights [GC], M.N. and others v. Belgium, Application no. 3599/18, 5 May 2020
Court Name: 
European Court of Human Rights (Grand Chamber)

Not all cases with an international element can establish jurisdiction under the Convention; an assessment of exceptional circumstances on the basis of the specific facts of each case is required.

The applicants do not have any connecting links with Belgium and their sole presence in the premises of the Belgian Embassy in Lebanon cannot establish jurisdiction, as they were never under the de facto control of Belgian diplomatic or consular agents. Jurisdiction under Article 1 ECHR cannot be established solely on the basis of an administrative procedure initiated by private individuals outside the territory of the chosen state, without them having any connection with that State, nor any treaty obligation compelling them to choose that state.


The applicants, a family of four, are Syrian nationals from Aleppo, Syria. In 2016, they requested visas on humanitarian grounds from the Belgian Consulate in Beirut, Lebanon. The Belgian Aliens Office rejected their requests and the applicants requested the suspension of execution of the decision by the Council for Alien Law Litigation (CALL. The latter ruled that the political and security situation in Aleppo created an Article 3 risk and instructed the authorities to issue new decisions. The Aliens Office again rejected the applicants’ requests and the CALL suspended them once more. Subsequent applications for judicial review were dismissed.

Given the Belgian authorities refusal to comply with the decisions of the CALL, the applicants brought the case before the Brussels Court of First Instance, which ruled that the state had to comply (December 2016). However, a later judgment of the Court of Appeal (June 2017), in a procedure initiated by the state, ruled that the applicants had not sought to set aside the visa refusal decisions, choosing to stay the proceedings instead, which meant that the refusal decisions were never set aside and had become final. Consequently, both the second CALL decisions and the December 2017 decision of the Court of Appeal were not operative.

The applicants lodged an application before the European Court of Human Rights alleging a violation of Article 3 and Article 13, on account of Belgium’s refusal to issue visas on humanitarian grounds, as well as a violation of Article 6 on the state’s failure to execute the judgments.

Decision & Reasoning: 

The Court looked into the issue of jurisdiction by first referring to the relevant case law on the scope of Article 1 of the Convention. Given the primarily territorial character of the notion of jurisdiction, an extraterritorial exercise of jurisdiction should be defined and limited by the territorial sovereignty of other states (paras. 99 & 101) and is assessed on the basis of the specific facts of each case (para. 102). In this line, the Court distinguished previous cases of extraterritorial jurisdiction (paras. 104 – 107) from situations where there is an international element but the facts are not able to establish extraterritorial jurisdiction (paras. 108 – 109). Regarding the specific facts of the case, the Court noted the applicants’ arguments that decisions were taken on the entry conditions for the applicants but held that the mere fact that a decision taken in a State Party is affecting the situation of individuals that are not present in its territory cannot establish jurisdiction (para. 112).

Looking into whether there are any exceptional circumstances regarding the exercise of power and the nature of the link between state and applicant that would establish jurisdiction, the Court noted the applicants’ arguments that visa-related consular functions are a form of public power that engages the state’s jurisdiction. However, there are no connecting links to support the jurisdictional argument as the applicants are not Belgian nationals and they were never under the de facto control of the diplomatic agents; in fact, they only approached the embassy to submit their applications and did not engage any further (para. 118). The mere fact of entering the premises of an embassy cannot be used to establish a jurisdictional link (para. 119). In the numerous cases that were cited by the applicants, the situation was fundamentally different as the Article 3 risk affected people already present in the state’s territory or at its borders (para. 120).

Similarly, the fact that the applicants brought proceedings at the national level is not sufficient to establish jurisdiction, as the latter would need more than just an administrative procedure initiated by private individuals outside the territory without any connection with the State concerned and without any treaty obligation regarding the state they chose (para. 121-122). To decide otherwise would be tantamount to accepting a near-universal application of the Convention and unlimited forms of positive obligations for States on the basis of individual choices, regardless of the individual’s presence (para. 123). The Court concurred with the arguments of the Belgian government and the intervening States and concluded that such an extension of the Convention’s scope would negate the principle of sovereignty of states under international law (para. 124). This finding, however, does not prejudice actions taken by states to ensure and facilitate access to asylum procedures through diplomatic and consular representations.

On the Article 6 complaint, the Court found that Article 6 was not applicable ratione materiae, as the right to entry to territory is not a civil right within the meaning of that Article, similar to its findings regarding any decision relating to immigration (paras. 137 – 138). Moreover, any relevant proceedings do not become civil solely on the basis of subsequent judicial procedures before courts.


Application declared inadmissible.


The Governments of  the Czech Republic,  Croatia, Denmark, France, Germany, Hungary, Latvia, Norway, the Netherlands, Slovakia and the United Kingdom intervened in this case. The AIRE Centre, DCR, ECRE and ICJ also submitted a third-party intervention.

The case bears significant similarities with another humanitarian visa case (C-638/16, X and X) decided by the Court of Justice of the European Union in 2017. You can read the full summary here.

Case Law Cited: 

ECtHR - Kudla v Poland [GC], Application No. 30210/96

ECtHR - N v United Kingdom (Application no. 26565/05)

ECtHR - Abdul Wahab Khan v. the United Kingdom, Application no. 11987/11, 28 January 2014

ECtHR - No. 29750/09, Hassan v UK, Application

ECtHR - Chiragov and Others v. Armenia, no. 13216/05, 14 December 2011

ECtHR - Gentilhomme and Others v. France (nos. 48205/99, 48207/99 and 48209/99, ECHR 14 May 2002)

ECtHR - Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A No. 240

ECtHR - Ilascu and Others v Moldova and Russia [GC], Application No. 48787/99

ECtHR- Catan and Others v. the Republic of Moldova and Russia [GC], (Application nos. 43370/04, 8252/05 and 18454/06)

ECtHR - Medvedyev and Others v France, [GC], Application No. 3394/03

ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01

ECtHR - Bankovic and Others v Belgium and 16 other Contracting States [GC], Application No. 52207/99

ECtHR- Panjeheighalehei v. Denmark, Application no. 11230/07
Other sources cited: 

The Court also cited Articles 1, 2, 23 (4), 25 and 32 of Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (“Visa Code”) and Articles 4 and 6 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code).

Authentic Language: 
State Party: 
National / Other Legislative Provisions: 
Aliens (Entry
Settlement and Expulsion) Act of 15 December 1980
Articles 144 and 145 of the Constitution
Article 584 of the Judicial Code