200519ScanStNDeuEGMR3599-18.pdf
Dieses Dokument ist Teil der Anfrage „Stellungnahme der Bundesregierung zu EGMR-Verfahren M.N. and Others v. Belgium (application no. 3599/18)“
* Bundesministerium der Justiz und für Verbraucherschutz Die Verfahrensbevollmächtigte der Regierung der Bundesrepublik Deutschland The Agent of the Government of the Federal Republic of Germany L'Agent du Gouvernement de la République Fédérale d'Allemagne STREET ADRESS POSTAL ADRESS CONTACT Ms. Wenzel DEVISION IV C1 TEL +49 (0)30 18 580 -84 31 FAX +49 (0)30 18 580 -84 31 EMAIL NO. DATE POSTAL ADRESS Mohrenstraße 37, 10117 Berlin 11015 Berlin wenzel-nißbmiv. bund.de W C1—9470/2-4E(0)- 48 141/2018 Berlin, 31 August 2018 Federal Ministry of Justice and Consumer Protection, 11015 Berlin Mr Stanley Naismith Section Registrar of the European Court of Human Rights Council of Europe F-67075 STRASBOURG -CEDEX BY E-TRANSMISSION ONLY Subject.: Application no. 3599/18 ,)and others v. Belgium Reference: Your letter dated 17 July 2018 Encl.: -1- Dear Sir, Please find enclosed the written comments of the Federal Government dated 31 August 2018. Yours sincerely, ( cr4 (Dr. Nicola Wenzel) LIEFERANSCHRIFT VERKEHRSANBINDUNG Kronenstrage 41, 10117 Berlin U-Bahnhof Hausvogteiplatz (U2)
Bundesministerium der Justiz und für Verbraucherschutz Die Verfahrensbevollmächtigte der Regierung der Bundesrepublik Deutschland STREET ADRESS POSTAL ADRESS The Agent of the Government of the Federal Republic of Germany L'Agent du Gouvernement de la Republique Fédérale d'Allemagne CONTACT Ms. Wenzel DEVISION IV C1 TEL +49 (0)30 18 580 -84 31 FAX +49 (0)30 18580 -8431 E-MAIL NO. DATE POSTAL ADRESS: Mohrenstraße 37, 10117 Berlin 11015 Berlin wenzel-niebrnjv. bund.de IV C 1—9470/2-4E(0)- 48 141/2018 'Berlin, 31 August 2018 Federal Ministry of Justice and Consumer Protection, 11015 Berlin Europäischer Gerichtshof für Menschenrechte —Europarat — F— 67075 STRASBOURG — CEDEX NUR PER E-TRANSMISSION Subject: Application no. 3599/18 el—m.1%nd others v. Belgium here: Letter from the Court dated 17 July 2018 Written comments by the Federal Republic of Germany • in the case of and others v. Belgium pursuant to Article 36 §2of the Convention for the Protection of Human Rights and Fundamental Freedoms 1 The Federal Government of the Federal Republic of Germany would like to express its thanks to the President of the Section for the opportunity to submit written comments pursuant to Article 36 §2 of the Convention for the Protection of Human Rights and Fun- damental Freedoms ("the Convention") regarding the case of IIII and others v. Bel- gium. 2 The Federal Government would like to take this opportunity to present to the Court its legal opinion on questions 1and 3 raised by the Court. The Federal Republic of Germany LIEFERANSCHRIFT VERKEHRSANBINDUNG Kronenstraße 41, 10117 Berlin U-Bahnhof Hausvogteiplatz (U2)
PAGE 2of 8 is of the opinion that questions 1and 3 are closely linked and should be answered in the negative for the following reasons: 3 The present case does not qualify as one of the instances in which the Court has recog- nised the extra-territorial applicability of the Convention because of an exercise of juris- diction by a Contracting State outside its own territorial boundaries (I.). We believe that the Court should not expand its established case-law and derive positive obligations from the Convention in an extra-territorial context, if authority and control over a territory or over the applicant are not firmly established. Broadening the extra-territorial responsibility of Contracting States in such away would overstretch the Convention and could have se- rious consequences for the Convention system as such (II.). In addition, answering ques- tions 1and 3 in the affirmative would create an unlimited obligation on Contracting States to allow entry to individuals who might be at risk of treatment contrary to Article 3 of the Convention, regardless of where in the world these individuals might find themselves. Such a broad obligation would not only run counter to accepted principles of international migration and refugee law, but would also be impossible for Contracting States to fulfil (Ill.). I. The present case does not fall into one of the categories in which the Court has ex- ceptionally recognised the exercise of extra-territorial jurisdiction. 4 The Federal Republic of Germany is of the firm opinion that persons who apply for avisa at aconsulate of aContracting State do not come under the jurisdiction of that State with- in the meaning of Article 1of the Convention. 5 According to the Court's established jurisprudence, aState's jurisdiction within the mean- ing of Article 1 of the Convention is primarily territorial (Bankovie and others v. Belgium and others [GC], no. 52207/99, §§ 61 and 67). lt may, under certain, narrowly defined cir- cumstances, extend to acts of State authorities that are performed or that produce effects outside its own territory. Whether such exceptional circumstances exist must be deter- mined with reference to the particular facts of each case (Al-Skeini and others v. The United Kingdom [GC], no. 55721/07, §132). 6 An analysis of the Court's jurisprudence shows that the exceptional exercise of extra- territorial jurisdiction may be based on two rationales: first, the exercise of authority and control over the person of the applicant by State agents (relational concept of jurisdic- tion), and second, the exercise of authority and control over a territory situated outside the State's borders (territorial concept of jurisdiction).
PAGE 3of 8 7 The territorial concept of jurisdiction is not pertinent in the present case. Embassies and consulates are located on foreign territory; their premises are part of the territory of the receiving State. They benefit from privileges and immunities, such as inviolability, in the receiving State. This does not, however, alter the fact that embassies and consulates are not extra-territorial territory of the sending State. 8 Germany contends that the relational concept of jurisdiction is not pertinent either. None of the scenarios in which the Court has exceptionally recognised the exercise of extra- territorial jurisdiction applies. 9 It is true that the Court has held that one recognised instance of extra-territorial exercise of jurisdiction are "cases involving the activities of its diplomatic or consular agents abroad [...]. In these specific situations, customary international law and treaty provisions have recognized the extra-territorial exercise of jurisdiction by the relevant State." (Bankovie and others, cited above, §73) However, the Court has also clarified that the actions of diplomatic and consular agents who are present on foreign territory in accordance with provisions of international law may amount to such an exercise of jurisdiction only when these agents exert authority and control over others (see, among many other authorities, Al-Skeini cited above, § 134). Authority and control is a general test that applies in all cases where the extra- territorial application of the Convention is invoked. Authority and control over the appli- cants, however, is lacking here. 10 The only link between the Contracting State and the applicants in cases such as the pre- sent one is the fact that the applicants initiated an administrative procedure by applying for avisa. This link is not sufficient, in Germany's understanding, to justify the exceptional application of the Convention in asituation that is by, its very nature, extra-territorial. 11 To date, the Court has recognised the applicability of the Convention based on an exer- cise of extra-territorial jurisdiction under the relational concept of jurisdiction only in the case of physical authority and control over the applicant. When a person on foreign terri- tory applies for avisa at aconsular division or consulate, however, said person is not un- der the physical authority and control of the sending State's agents. Whereas the State agents handling visa requests abroad are competent to reach decisions on visa applica- tions by foreign nationals and therefore on the question of whether permission will be granted to the applicants to enter the sending State's territory, they do not exercise phys-
PAGE 4of 8 ical authority or control over the applicants located abroad. Consular agents are, under public international law, not empowered to take coercive action against persons located on the consulate premises. If such coercive action should ever be necessary, the head of the consular post or his or her designee or the head of the diplomatic mission of the sending State must give their consent to the authorities of the receiving State to enter the diplomatic or consular premises (Article 31 §2of the Vienna Convention on Consular Re- lations; Article 22 § 1of the Vienna Convention on Diplomatic Relations) and must rely on the cooperation of the authorities of the receiving State. The applicants in the present case are therefore in a position that is very different to the one of the applicants in AI- Skeini, who were killed by State agents in the course of a security operation and of the applicant in Öcalan (Öcalan v. Turkey, no. 46221/99), who was taken into the custody by State agents abroad. 12 Even if one were to consider that when activities of consular agents are involved, their decisions could be seen to constitute an exercise of jurisdiction with regard to Convention rights directly relevant to the visa application procedure and thus the simple fact of apply- ing for avisa may be held to constitute ajurisdictional link to the sending State, the appli- cants could still not be said to come under the jurisdiction of the relevant Contracting State in relation to the specific violations of the Convention referred to in the current ap- plication. 13 Under the territorial rationale for extra-territorial jurisdiction, aState that exercises author- ity and control over aforeign territory has to secure, within the area under its control, the entire range of substantive rights set out in the Convention and any additional Protocols that it has ratified (Al-Skeini, cited above, § 138). Where the State, through its agents, exercises control and authority not over foreign territory, but over an individual abroad, it is only obliged to secure to said individual the rights of the Convention "that are relevant to the situation of that individual" (Al-Skeini, cited above, § 137). Insofar, the Convention rights can be "divided and tailored" (Al-Skein!, cited above, § 137) in the sense that, when examining whether in a specific case an exceptional instance of extra-territorial jurisdic- tion is to be recognised, the subject matter of the applicants' complaints must be taken in- to account (see Abdul Wahab Khan v. The United Kingdom (dec.), no. 11987/11, §28). 14 Since the only link between the Contracting State and the applicants in the kind of case currently under examination is the administrative procedure initiated by the applicants, only Convention rights closely linked to this procedure itself could possibly be relevant. When treating the applicants during the administrative procedure at the consulate, consu- lar agents would, of course, ensure that no ill-treatment of the applicants occurs there and then. This fact may, however, not entail responsibility on the part of consular agents
PAGE 5of 8 for any treatment of the applicants that occurs elsewhere and outside this administrative procedure and in this case even outside the receiving State where the consular agents are located. Namely, the applicants in the current case do not allege that a violation of their Convention rights occurred or would occur in Lebanon, where they lodged their visa application at the Belgian Embassy's consular division, through any treatment undergone or received there in Lebanon. Their claims relate to risks incurred in their home country, from which they travelled to Lebanon, a country where they do riot incur such a risk. The mere fact that the applicants availed themselves of the option provided for by Belgian law to apply for a short-term visa at a consular division abroad has no direct bearing on whether their complaints relating to the alleged risk of treatment contrary to Article 3 of the Convention back in their country of origin fall within the jurisdiction of Belgium (see mutatis mutandis Abdul Wahab Khan, cited above, §28). If the Court were to decide oth- erwise, applicants could, by availing themselves of a procedure provided for by the Con- tracting State at a diplomatic or' consular post abroad and not related to the substantial complaint, trigger the application of any substantive Convention right unrelated to the concrete procedure. Il. Positive obligations should not be derived from the Convention in an extra- territorial context without firmly established authority and control. 15 The fact that consular authorities are involved and that an administrative procedure has been initiated by the applicants against the respondent Contracting State outside its terri- tory should not obscure the fact that this kind of case really is about an omission. The applicants allege thafthe Contracting State has not taken the necessary steps to protect them against treatment contrary to Article 3 of the Convention in their home State. What the applicants request is for the Court to infer positive obligations for Contracting States in an extra-territorial situation where no authority and control exists. Not actual authority and control, but the simple theoretical ability to take action would be the basis for estab- lishing the exceptional exercise of extra-territorial jurisdiction. 16 To date, the Court has recognised positive obligations in an extra-territorial context on the basis of firmly established authority and control, either territorially or with respect to the applicant. In the Hirsi Jamaa case (Hirsi Jamaa v. Italy [GC], no. 27765/09), for example, the applicants had been rescued at sea and subsequently transferred on board ships of the Italian armed forces from where they were transferred to Libya (Hirsi Jamaa, cited above, §81). The Court found that Article 3 had been violated because Italy had not complied with its positive obligation under Article 3 not to expose the applicants to the risk of treatment contrary to Article 3by athird State. But this positive obligation could on- ly be inferred from the Convention because the applicants were under "the continuous
PAGE 6of 8 and exclusive de jure and de facto control of the Italian authorities" in the first place (Hirsi Jamaa, cited above, §8). 17 Such authority and control is lacking in the present case (see I. above), which should therefore be distinguished from the Hirsi Jamaa case. In Germany's understanding, the present case should rather be decided in line with the Court's rationale in Abdul Wahab Khan (cited above). In that case, the applicant, who was residing in Pakistan, had en- gaged judicial proceedings in the United Kingdom asking to be admitted to the United Kingdom and arguing that, in Pakistan, he was exposed to treatment contrary, inter alla, to Article 3 of the Convention. The Court held that the complaint was incompatible with the provisions of the Convention. In particular, it considered that there was not "any support in the Court's case-law [...] that the State's obligations under Article 3 re- quire it to take this Article into account when making adverse decisions against individu- als, even when those individuals are not within its jurisdiction." (Abdul Wahab Khan, cited above, §26).' As in Abdul Wahab Khan, there is no firmly established authority and control of the Con- tracting State over the applicants. If the fact of engaging judicial proceedings from abroad was not sufficient to establish a State's jurisdiction in that case, then the fact of applying for avisa at aconsulate of aContracting State in athird country is not sufficient, either. 18 We believe that, if the Court were to depart from the Abdul Wahab Khan jurisprudence in the present case and recognise positive obligations without a sufficient jurisdictional link as its basis, it would overstretch Contracting States' responsibility under the Convention. The door would be open to awide array of new applications invoking positive obligations in extra-territorial contexts. Even cross-border environmental and health issues for exam- ple could be litigated before the Court. In the end, the already 'overburdened Convention system would be jeopardized. Ill. An unlimited obligation on Contracting States to grant humanitarian visas would be at odds with international migration and refugee law and would be impossible to fulfil. 19 Finally, Germany would like to point out that answering questions 1and 3 in the affirma- tive would run counter to established principles of international migration and refugee law. Immigration control is traditionally part of the domaine réservé; States freely decide whom to admit to their territory. According to the Court's established case-law,
PAGE 7of 8 "Contracting States have the right, as amatter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens" (Hirsi Jamaa, cited above, §113; see also J.K. and others v. Sweden [GC], no. 59166/12, §79; F.G. v. Sweden, no. 43611/11, §111; Saadi v. Italy [GC], no. 37201/06, §§ 124-133). 20 This State prerogative is limited by the prohibition of refoulement. Article 33 of the 1951 Refugee Convention states: "No Contracting State shall expel or return ("refouler") arefugee in any manner whatso- ever to the frontiers of territories where his life or freedom would be threatened on ac- count of his race, religion, nationality, membership of aparticular social group or political opinion." The words "expel or return" demonstrate clearly that the prohibition of refoulement ap- plies to persons on a State's territory on the one hand or to persons presenting them- selves at the border of the State on the other. Non-refoulement does not apply to persons on the territories of third States. Neither does it imply that States are under an obligation to grant avisa to persons in third States in ordei to enable them to create a situation in which the guarantee of non-refoulement applies. For the reasons set out above, the same reasoning applies mutatis mutandis to the-Convention. The Convention cannot be interpreted in such away as to oblige Contracting States to grant visas to applicants to enable them to create asituation in which Article 3of the Convention applies. 21 To decide otherwise would mean creating an unlimited obligation on Contracting States to allow entry to individuals who might be at risk of ill-treatment contrary to Article 3of the Convention, regardless of where in the world those individuals might find themselves (see Abdul Wahab Khan, cited above, §27). Such a ruling would have considerable prac- tical consequences: contracting States would be faced with an obligation that is impossi- ble to fulfil. At the same time, if it were possible and they were to fulfil the obligation, the consequences for Contracting States would be incalculable. The Court itself has recog- nised that Contracting States "are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum-seekers (Hirsi Jamaa, cited above, §122). These difficulties would multiply considerably and, as a consequence, present a serious challenge to the cohesion of societies in Contracting States.
PAGE 8of 8 22 This having been said, the Federal Government would like to emphasise that Contracting States are aware of the dire human rights situation in Syria and are actively engaged in seeking political solutions to address the situation. Humanitarian admittance and assis- tance programmes are in place on a voluntary basis. The Federal Government of Ger- many for example admitted more than 20,000 Syrian refugees through humanitarian ad- mission programs from 2013-2015. Since 2016, Germany has admitted about 5,000 Syri- an refugees through resettlement and humanitarian admission programs, particularly from Turkey. In 2018 and 2019 Germany has committed to admit 10,200 refugees (in- cluding 7.500 Syrian nationals) via resettlement and humanitarian admission programs. In addition, around 25,000 visa have been issued since 2013 through various humanitari- an admission programs of Land Governments. This, however, is amatter of humanitarian policy choices. lt should not be turned into an issue of directly enforceable individual hu- man rights. cr7a. (Dr. Nicola Wenzel)