CEDH · CASELAW;DECISIONS;DECGRANDCHAMBER;ENG — 5 mai 2020

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Serghides,   Marko Bošnjak,   Jovan Ilievski,   Ivana Jelić,   Darian Pavli, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated on 24 April 2019 and 5 March 2020, decides as follows: PROCEDURE 1.     The case originated in an application (no. 3599/18) against Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10   January 2018 by a married couple and their two minor children, all Syrian nationals (“the applicants”). 2.     The applicants were represented by Mr O. Stein and Ms L. Lambert, lawyers practising in Brussels. The Belgian Government (“the respondent Government”) were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department. 3.     The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 26 April 2018 a Chamber of that Section gave notice to the Government of the complaints under Articles   3, 6   §   1 (enforcement limb) and 13. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3. On 20   November 2018 the Chamber relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention). 4.     The President of the Section to which the case had been assigned acceded to the applicants’ request not to have their names disclosed (Rule   47 § 4). 5.     The applicants and the Government both filed observations on the admissibility and the merits of the case. In addition, third-party comments were received from the Governments of Croatia, the Czech Republic, Denmark, France, Germany, Hungary, Latvia, the Netherlands, Norway, Slovakia and the United Kingdom, and from the Human Rights League (“LDH”), the International Federation for Human Rights (“FIDH”), the Centre for Advice on Individual Rights in Europe (“AIRE Centre”), the Dutch Council for Refugees, the European Council on Refugees and Exiles (“ECRE”), the International Commission of Jurists, and the Bar Council of French-speaking and German-speaking Lawyers (“OBFG”), which had been given leave to intervene in the written procedure (Article 36 §§ 2 and 3 of the Convention). 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 24 April 2019 (Rule 59 § 3). There appeared before the Court:   - for the respondent Government   Ms   I. Niedlispacher,   Agent, Ms E. Derriks,   Counsel, Ms M. De Sousa, Mr G. Vanwitzenburg, Mr A. Paul,   Advisers;   - for the applicants   Mr O. Stein, Ms L. Lambert,   Counsel, Mr J. Englebert, Mr J. Callewaert,   Advisers;   - for the French Government (third party)   Ms F. Merloz,   Co-Agent, Ms E. Leblond,   Adviser;   - for the Latvian Government (third party)   Ms K. Līce,   Agent, Ms E. L. Vītola,   Adviser;   - for the Norwegian Government (third party)   Mr Marius Emberland,   Agent;   - for the United Kingdom Government (third party)   Mr   G. Cox QC, Attorney General, Sir J. Eadie, Mr D. Blundell, Mr C. Murphy, Ms   A. Sornarajah,   Advisers, Mr C. Wickremasinghe,   Agent;   - for the OBFG   Mr   F. Krenc,   Counsel.   7.     The Court heard addresses by Ms Niedlispacher, Ms Derriks, Mr Stein and Ms   Lambert; by Mr Geoffrey Cox QC and Ms   Merloz, on behalf of the Governments of the United Kingdom, France, Latvia and Norway, and by Mr Krenc. Ms Derriks, Ms Niedlispacher, Mr   Englebert, Ms Lambert, Mr Callewaert and Mr Stein subsequently replied to questions put by the judges. THE FACTS Administrative phase (visa applications and proceedings before the Aliens Office and the administrative courts) 8.     During the administrative phase, the applicants attempted, firstly, to obtain documents that would enable them to enter and reside legally in Belgium for the period required to make a formal asylum claim; secondly, they brought proceedings before the administrative courts to challenge the refusal by the Aliens Office to issue them with visas. For its part, the Belgian State opposed, before the same courts, the granting of visas. Decisions of 13 September 2016 refusing to issue visas 9.     On 22 August 2016 the applicant couple, accompanied by one of their children, travelled to the Belgian embassy in Beirut to submit visa applications for themselves and their two children. Their applications were supported by a letter from their Belgian lawyer, dated 15 July 2016, and related documents. 10.     The applicants requested visas with limited territorial validity on the basis of Article 25 of the Community Code on Visas (see paragraph   64 below). With regard to the compelling humanitarian reasons required for application of that provision, the applicants stated that in terms of both security and living conditions they were in a situation of absolute emergency on account of the armed conflict in Syria and, more specifically, the intensive bombardment of Aleppo. They submitted documents in support of their claims. The applicants stated that their house in Aleppo had been destroyed by bombing; that they had taken shelter in the house of an uncle who had fled Syria; that the war situation had made access to food, water and electricity very difficult; and that the children were no longer attending school. In consequence, they wished to leave Aleppo and obtain visas in order to travel to and apply for asylum in Belgium, which had granted international protection status (asylum or subsidiary protection) in 2015 to the vast majority of asylum-seekers arriving from Syria and where they were in contact with a Belgian family which was willing to provide accommodation. 11 .     On 13 September 2016 the Aliens Office, the administrative body responsible for issuing visas (see paragraph 45 below), refused to grant “humanitarian visas” to the applicants and informed them of its decisions by an email of 29 September 2016, transmitted through the visa department of the Belgian embassy in Beirut. 12.     The Aliens Office indicated that the visas requested by the applicants were intended only for persons wishing to travel for a short period to the territory of a Schengen State for reasons beyond their control, such as the illness or death of a relative, and who had no intention of settling permanently in the State in question. The Aliens Office noted, however, that since the applicants’ avowed intention was to lodge an asylum claim on arrival in Belgium, they could not make use of this type of visa. In the view of the Aliens Office, granting a visa on humanitarian grounds to an individual who intended to apply for asylum in Belgium would therefore create a precedent which would derogate dangerously from the exceptional nature of the procedure for short-stay visas. The Aliens Office added that diplomatic and consular missions were not listed among the authorities before which an asylum claim could be lodged under the Royal Decree of 8   October 1981 on the entry, residence, settlement and expulsion of aliens. 13.     Lastly, the Aliens Office invited the applicants to apply for another type of visa, based on the Belgian legislation enabling them to stay in Belgium for more than 90 days. The applicants subsequently submitted such an application, which was rejected by the Belgian authorities in December 2016 (see paragraph   34 below). 14.     The applicants lodged an application under the extremely urgent procedure with the Aliens Appeals Board – the judicial appeal body against decisions by the Aliens Office (see paragraph 52 below) –, requesting a stay of execution, under the extremely urgent procedure, of the Aliens Office’s decisions of 13 September 2016 (see paragraph 11 above). 15 .     On 7 October 2016 the Aliens Appeals Board, acting under the extremely urgent procedure, ordered a stay of execution of the refusals by the Aliens Office to grant visas and instructed the Belgian State to take new decisions within 48 hours, giving adequate legal grounds, that is, by giving reasons which took account of the extremely dangerous situation in Syria. 16.     On 6 March 2017 the Aliens Appeals Board noted that no application had been brought to have the decisions of 13   September 2016 refusing to issue the visas set aside, and decided in consequence to lift the stay of execution of the visa refusal decisions and the interim measures. It further noted that, since the refusal decisions had not been set aside, they were still operative. 17.     On 8 February 2018 the Conseil d’État dismissed an appeal on points of law by the applicants against the judgment of 6 March 2017. It held that no departure from the case-law had been made out and dismissed the arguments in which the applicants alleged a breach of the principle of legal certainty and a violation of Articles 3 and 13 of the Convention. 18.     On the same date the Conseil d’État dismissed an appeal on points of law brought by the Belgian State against the judgment of 7 October 2016 on the grounds that, following the lifting of the stay of execution on 6   March 2017, the contested judgment no longer adversely affected the Belgian State. Decisions of 10 October 2016 refusing to issue visas 19 .     As required by the order of the Aliens Appeals Board (see paragraph   15 above), the Aliens Office issued new decisions, dated 10   October 2016, refusing to grant the visas; however, it provided the same reasons as in the previous refusals. In the notification email sent to the applicants’ lawyer, it stated that “Article 3 of the Convention [could] not be interpreted as requiring States to admit to their territory all persons living in catastrophic situations, at the risk of requiring the developed countries to accept entire populations from the developing world, countries at war or those ravaged by natural disasters”. 20.     By a judgment of 14 October 2016 the Aliens Appeals Board, acting under the extremely urgent procedure, again ordered a stay of execution of the decision of 10 October 2016 refusing to issue the visas, and instructed the Aliens Office to take new decisions, this time giving adequate legal grounds, within 48 hours. 21.     The Aliens Appeals Board held that it was unable to accept the State’s argument that Article   3 of the Convention could not reasonably entail an obligation for the member States of the Council of Europe to admit all populations confronted with situations of chaos or great danger in their own countries. It also reiterated the res judicata nature of its judgments, in particular that of 7 October 2016, which had nonetheless not been executed. Lastly, using the same terms as in its judgment of 7 October 2016, the Aliens Appeals Board stated that the Aliens Office had not met the formal requirement to provide reasons, by failing to take into consideration the alarming situation in Syria and the very serious risk of a violation of Article   3 of the Convention. 22 .     The applicants brought proceedings before the Aliens Appeals Board to have the Aliens Office’s decisions of 10   October 2016 set aside. On 24   March 2017 the Aliens Appeals Board dismissed the application to have those decisions set aside, finding that the Aliens Office’s decisions of 13   September 2016 (see paragraph 11 above) had become final and that, in consequence, the applicants no longer had standing to challenge the subsequent decisions. 23.     An administrative appeal on points of law lodged by the applicants against that judgment was dismissed by the Conseil d’État on 17 May 2018. It based its decision on the interpretation given by the Court of Justice of the European Union (“CJEU”) to Articles 1 and 25 of the Visa Code; the CJEU had found on 7 March 2017 that the Visa Code applied only to visits of less than 90   days, and that it could not therefore be applied in the context of an asylum request necessarily implying a longer stay (see paragraphs 71 ‑ 73 below). Decisions of 17 October 2016 refusing to issue visas 24.     On 17 October 2016 the Aliens Office again took decisions refusing to issue the visas, citing the same reasons as in the previous refusals. 25 .     By a judgment of 20 October 2016 the Aliens Appeals Board, essentially reiterating the substance of its previous judgments, ordered a stay of execution of the refusal decisions of 17 October 2016. In addition, in view of the imminent danger faced by the applicants, the Belgian State’s persistent refusal to comply with res judicata authority and the importance of ensuring that the remedy was effective, it considered that it was justified to direct the State to issue the applicants, within 48 hours, with laissez-passers or visas, valid for three months. 26.     By a judgment of 24 March 2017 the Aliens Appeals Board dismissed the application to have the decisions set aside and ordered that the stay of execution in respect of the visa refusal decisions be lifted, together with the interim measures, based on the same reasoning as that set out in its first judgment of the same date (see paragraph 22 above). 27.     An appeal on points of law against this judgment was dismissed by the Conseil d’État in a judgment of 17 May 2018, on the same grounds as those set out in the above-cited judgment of the same date (see paragraph   23   above). Judicial phase (proceedings before the civil courts concerning execution of the Aliens Appeals Board’s judgment of 20   October 2016) 28.     For the applicants, the purpose of the judicial phase was to obtain execution of the Aliens Appeals Board’s judgment of 20 October 2016 – by virtue of which they had obtained the right to travel legally to Belgium, since the Belgian Government had been ordered to grant them leave to enter and remain in the country for 3 months –, and subsequently of the Brussels Court of Appeal’s judgment of 7 December 2016. For its part, the Belgian State sought to counter the execution of the above-cited decisions; it secured this aim through the court of appeal’s judgment of 30   June 2017. Proceedings brought by the applicants before the urgent ‑ applications judge 29.     The applicants sent a formal notice, served by bailiff, to the Belgian authorities seeking execution of the Aliens Appeals Board’s judgment of 20   October 2016 (see paragraph 25 above). That approach having proved unsuccessful, the applicants brought a unilateral application before the President of the Brussels French-language Court of First Instance (“TPI”). 30.     By an order of 25 October 2016, considering that the failure by the Aliens Office to comply with a judgment of the Aliens Appeals Board, notwithstanding the fact that it had been immediately enforceable, constituted “an unacceptable illegal action”, the acting president of the French-language TPI ordered the State, as an urgent measure, to comply with the Board’s judgment of 20 October 2016, that is, to issue the applicants with visas or laissez-passers , and made the order subject to a penalty payment of 1,000   euros (EUR) per day of delay and per applicant. 31.     In compliance with a condition imposed by the president ruling on the unilateral application, the applicants brought an inter partes action against the State in order to have the order of 25   October 2016 confirmed. On 7   November 2016 another judge acting as president of the French ‑ language TPI declared their application admissible but unfounded, considering that the Belgian authorities could not be criticised for failing voluntarily to comply with a judgment by the Aliens Appeals Board, even one that was immediately enforceable, if these same authorities intended to challenge the legality of the judgment by pursuing an appeal procedure provided for by law. The judge also held that, since the legislature had not given the Aliens Appeals Board powers to impose penalty payments, the TPI in turn did not have such powers in the case under examination. 32 .     On an appeal by the applicants, the Brussels Court of Appeal delivered a judgment on 7   December 2016 varying the order of 7   November 2016. It held that the applicants could rely on the binding and enforceable nature of the contested judgment and on their subjective right to seek compliance and obtain an end to the harm sustained by them as a result of non-execution of the judgment, which constituted “an illegal action” and manifest fault. It also considered that, despite the absence of any proceedings to have the decisions of 13 September 2016 refusing the visas set aside, the appeal lodged with it was not wholly devoid of purpose. 33.     In consequence, the court of appeal ordered the Belgian State to execute the Aliens Appeals Board’s judgment of 20 October 2016, which had instructed the Belgian authorities to issue visas or laissez-passers , held that this order was immediately enforceable and, lastly, ruled that the State was to pay a penalty of EUR 1,000 per day of delay and per applicant. 34 .     In correspondence of 12 and 13 December 2016, the lawyers to the Belgian State informed the applicants that the Belgian authorities were refusing to issue the laissez-passers or long-stay visas requested by them as an alternative solution to granting the so-called “humanitarian” visas. They advised the applicants to approach the Lebanese authorities with a request for visas and urged them not to pursue the execution of the court of appeal’s judgment of 7   December 2016, in view of a similar case that was pending before the CJEU (see paragraphs   71-73 below). 35.     The applicants stated that they were unable to follow the advice of the Belgian Government and intended to seek enforcement of the Brussels Court of Appeal’s judgment, in view of the urgency of their personal situation and the disastrous humanitarian conditions prevailing for Syrians in Lebanon. On 13   December 2016 a payment order in respect of the penalties accrued was served on the Belgian State. 36.     On 27 February 2017 the Belgian State lodged an appeal on points of law against the court of appeal’s judgment of 7 December 2016. Those proceedings are currently pending. Proceedings lodged by the Belgian State before the urgent ‑ applications judge 37.     The Belgian State, which sought for its part a stay of execution of the Brussels Court of Appeal’s judgment of 7 December 2016, lodged a unilateral action to that effect with the President of the Brussels Dutch ‑ speaking TPI on 13   December 2016, but was unsuccessful (order of the same date). However, on an appeal by the Belgian State, the court of appeal varied the decision of the first-instance court in a judgment of 14   December 2016. It noted the Belgian State’s intention to raise the difficulties of complying with the judgment of 7   December 2016 with the enforcement judge (“ le juge des saisies ”) and ordered the applicants not to pursue further enforcement proceedings pending a decision by the enforcement judge who was to rule on the validity of the enforcement procedure and the State’s right to restrict the amounts due in respect of penalty payments. Proceedings concerning the difficulties involved in executing the court of appeal’s judgment of 7 December 2016 (attachment of property) 38.     On 15 December 2016 the applicants brought an action against the Belgian State before the enforcement judge at the Brussels French-language TPI, seeking to ensure that the payment order of 13   December 2016 was executed. 39.     On the same date the Belgian State brought proceedings against the applicants before the enforcement judge at the Brussels Dutch ‑ language TPI, seeking a stay of execution of the principal sentence ( condamnation principale ) resulting from the Aliens Appeals Boards’ judgment of 20   October 2016 (obligation to issue visas or laissez ‑ passers ) and/or a stay of execution of the court of appeal’s judgment of 7   December 2016, and/or to prevent other enforcement measures, such as penalty payments. In the alternative, the State requested a finding that the conditions for a judicial deposit arrangement (“ cantonnement ”) had been met. 40.     Those two sets of proceedings, brought before different courts, gave rise to disputes concerning the jurisdiction of each court and to diverging decisions. It was ultimately the action lodged by the Belgian State (see paragraph 37 above) which was the first to be examined by the Brussels Court of Appeal. By a judgment of 30 June 2017 a Dutch-language division of the Court of Appeal held that the Aliens Appeals Boards’ judgment of 20   October 2016 was no longer operative, given that the applicants had not lodged an application to have the visa refusal decisions of 13   September 2016 set aside. The court of appeal’s judgment of 7 December 2016 was thus no longer operative, given that the Aliens Office’s refusal decisions of 13   September 2016 had become final and irrevocable before the penalty payment was issued against the Belgian State. 41.     The applicants did not appeal on points of law against the Brussels Court of Appeal’s judgment of 30 June 2017, on the grounds that the lawyer at the Court of Cassation assigned to their case by the Legal Aid Board had informed them such an appeal would have no reasonable prospect of success. 42.     On 20 December 2017 the French-language enforcement judge, examining the action brought by the applicants on 15 December 2016, found that the case had become devoid of purpose following the Brussels Court of Appeal’s judgment of 30 June 2017. LEGAL FRAMEWORK AND PRACTICE Domestic law and practice Issuing of visas (a)    Legislative framework 43.     Section 2/1 of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15   December 1980 (“the Aliens Act”) provides for two types of visa: short-term visas, for a maximum duration of 90   days (“C-type visas”) and long-term visas, for a period of more than 90   days (“D ‑ type   visas”). It does not refer to the possibility of issuing a specific visa for humanitarian reasons. 44.     Visas are entered in passports by the Belgian diplomatic and consular missions abroad. Embassies and consulates do not have authority to refuse to issue a visa. In consequence, where a visa application requires more in-depth scrutiny, it is sent to the Aliens Office (see paragraph   45 below). 45 .     The decision on whether or not to grant a visa falls within the discretionary powers of the Minister (at the relevant time, the State Secretary with responsibility for asylum and migration), and his or her representative, an authorised civil servant from the Aliens Office. The Aliens Office is the administrative body, under the supervision of the minister, which has responsibility in practice for all decisions concerning the entry, residence, settlement and expulsion of aliens. 46.     Short-term visas are governed by the Community Code on Visas, which is directly applicable in Belgium (see paragraphs 62-65 below). This type of visa, which is in principle valid through the Schengen area, may, exceptionally, be issued “with limited territorial validity”, for example “on humanitarian grounds” (Article   25 of the Visa Code, see paragraph   71 below). 47.     Long-term visas – which fall outside the scope of EU law (see   paragraphs 71-73 below) – are governed by sections 9 to 13 of the Aliens Act. Section 9 (1) provides that “to remain in the Kingdom beyond the period laid down in section 6 [namely for more than 90 days] an alien who is not in one of the cases provided for in section 10 [cases where an alien is automatically granted leave to remain for more than three months] must be authorised to do so by the Minister or his or her representative”. Section 13 §   1 provides that, except where expressly provided otherwise, long-term leave to remain is granted for a limited duration. Under section   13   §   2, this authorisation may be extended by the Minister or his or her representative. (b)    Practice 48.     The Belgian Federal Centre for the analysis of migration flows, protection of the fundamental rights of aliens and action against trafficking in human beings, or “Myria” – an independent public institution –, carried out research in 2017 and 2019 into the practice of issuing visas on humanitarian grounds. 49.     Myria stressed that, given the discretionary nature of the powers exercised by the Minister and the Aliens Office, and in the absence of criteria for granting or refusing a so-called “humanitarian” visa, it was impossible to indicate with precision the situations which had justified granting this type of visa. Nonetheless, it was able to distinguish the broad outlines of the policy in place. 50.     Until the CJEU’s judgment of 7   March 2017 (see paragraphs   71-73 below) short-stay visas could be issued on humanitarian grounds to individuals in disturbing medical or humanitarian circumstances; to aliens entitled, at the invitation of the Belgian authorities, to submit an asylum claim in Belgium; to beneficiaries of resettlement programmes run by the Office of the United Nations High Commissioner for Refugees and, in Belgium, by the Commissioner-General’s Office for Refugees and Stateless Persons; and to asylum-seekers who had been involved in an exceptional rescue operation, on the instruction of the Secretary of State for Immigration and Asylum Policy. 51.     The majority of so-called “humanitarian” visas were issued to family members who did not meet the legal requirements for family reunion. Since the CJEU’s judgment of 7   March 2017, only long-stay visas are issued to persons applying for visas who wish to claim asylum in Belgium. (c)    Appeals 52 .     If the Aliens Office refuses to issue a visa, the requesting party may apply to the Aliens Appeals Board to have the Aliens Office’s decision set aside. The Aliens Appeals Board is an administrative court which rules in a collegial formation or as a single judge. 53.     An action to have a decision by the Aliens Office set aside does not suspend it. For this reason, section 39/82 of the Aliens Act provides for the possibility of submitting a request for a stay of execution either under an “ordinary” procedure or under the “extremely urgent” procedure. In principle, requests for suspension and for setting aside must be submitted in the same application, except in cases of extreme urgency. In the latter case, the request for a stay of execution may be submitted separately from the action to have the decision set aside. However, the latter must be submitted within 30 days of notification of the decision to refuse the visa, failing which the stay of execution and any other interim measures ordered prior to submission of the action to have the decision set aside will be lifted. A stay of execution may be ordered only if the grounds relied on are sufficiently serious to warrant setting aside the impugned decision, and if immediate enforcement of the decision is liable to cause serious damage that it would be difficult to repair. 54.     Under section 39/67 of the Aliens Act, an appeal on points of law against the decisions of the Aliens Appeals Board lies to the Conseil d’État . Judicial proceedings 55 .     Under Articles 144 and 145 of the Constitution, the courts have competence to examine disputes relating to subjective rights. 56.     Article 584 of the Judicial Code provides for the possibility of applying to the president of the court of first instance by means of an urgent application or by an ex parte application: “The President of the Court of First Instance shall, in respect of all matters except those which the law excludes from the jurisdiction of the courts of justice, give a provisional ruling in cases which he recognises as being urgent. ... The matter shall be brought before the President by means of an urgent application or, in cases of absolute necessity, an ex parte application.   ....” 57.     An appeal lies against decisions taken at first instance, and an appeal on points of law may be lodged against judgments given on appeal. 58 .     In the event of difficulties in executing a judgment containing an order to pay penalties, any interested party can apply to the enforcement judge (“ juge des saisies ”) on the basis of Article 1498 of the Judicial Code, without, however, such an application having suspensive effect. International and European Union law International law 59.     Article 1, Section A, paragraph 2, of the Convention on the Status of Refugees, signed at Geneva on 28 July 1951, as amended by the New York Protocol of 31 January 1967 (“the Geneva Convention”), provides in particular that a refugee is any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country. 60.     Article 33 § 1 of the Geneva Convention provides that no Contracting State shall expel or return (“ refouler ”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. European Union law (a)    Charter of Fundamental Rights 61.     The Charter of Fundamental Rights of the European Union contains, inter alia , the following provisions: - Article 18, which provides that the right to asylum is to be guaranteed with due respect for the rules of the Geneva Convention and in accordance with the Treaty establishing the European Union (“EU”) and the Treaty on the Functioning of the EU; - Article 51 § 1, which provides that the provisions of the Charter are addressed to the EU’s institutions, bodies, offices and agencies with due regard for the principle of subsidiarity, and to the member States only when they are implementing EU law; and - Article 52 § 3, which states that, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention, their meaning and scope are to be the same as those laid down by the Convention, although this provision does not prevent EU law from providing more extensive protection. (b)    Secondary legislation (i)   Visa Code 62 .     Under Article 1 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”), which is directly applicable in the member States of the EU, the Regulation establishes the procedures and conditions for issuing visas for transit through or intended stays in the territory of the member States not exceeding three months (90 days) in any six-month period (180 days). Article 2 (2) (a) and (b) of the Code define the concept of “visa” as “an authorisation issued by a Member State” with a view to, respectively, “transit through or an intended stay in the territory of the Member States of a duration of no more than 90 days in any 180-day period” and “transit through the international transit areas of airports of the Member States”. 63.     Article 23 (4) of the Visa Code, headed “Decision on the application”, states that, unless the application has been withdrawn, a decision is to be taken, inter alia , to issue a uniform visa in accordance with Article 24 of the Code, to issue a visa with limited territorial validity in accordance with Article 25 of the Code or to refuse a visa in accordance with Article 32 of the Code. 64 .     Article 25 of the Visa Code, headed “Issuing of a visa with limited territorial validity”, is worded as follows: “1.     A visa with limited territorial validity shall be issued exceptionally, in the following cases: (a)     when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations, (i)     to derogate from the principle that the entry conditions laid down in Article   5(1)(a), (c), (d) and (e) of the Schengen Borders Code must be fulfilled; (ii)     to issue a visa ... ...” 65.     Article 32 of the Visa Code, headed “Refusal of a Visa”, provides: “1.     Without prejudice to Article 25(1), a visa shall be refused: ... (b)     if there are reasonable doubts as to the authenticity of the supporting documents submitted by the applicant or the veracity of their contents, the reliability of the statements made by the applicant or his intention to leave the territory of the Member States before the expiry of the visa applied for.” (ii)   Schengen Borders Code 66.     Article 4 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) provides that, where they apply this Regulation, the member States are to act in full compliance with the relevant EU law provisions, including the Charter, of applicable international law, including the Geneva Convention, their obligations with regard to access to international protection, in particular the principle of non-refoulement , and fundamental rights. 67 .     Article 6 of the Schengen Borders Code, entitled “Entry conditions for third-country nationals”, provides as follows: “1.     For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following: (a)     they are in possession of a valid travel document ... (b)     they are in possession of a valid visa, if required ... , except where they hold a valid residence permit or a valid long-stay visa; (c)     they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence ... ; (d)     they are not persons for whom an alert has been issued in the [Schengen Information System] for the purposes of refusing entry; (e)     they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds.” (iii)   Dublin Regulation 68.     Article 1 of Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (the “Dublin Regulation”), provides as follows: “This Regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person ...” 69.     Under Article 3 § 1 of the Dublin Regulation: “Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones ...” (iv)   Asylum Procedures Directive 70.     Article 3 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) is worded as follows: “1.     This Directive shall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection. 2.     This Directive shall not apply to requests for diplomatic or territorial asylum submitted to representations of Member States ...” (c)    Case-law of the CJEU 71 .     A request for a preliminary ruling was submitted to the CJEU in a judgment delivered by the general assembly of the Aliens Appeals Board on 8   December 2016, in a case bearing some similarities to the present case ( X and X   v.   Belgium , C-638/16 PPU). This case followed a rejection by the Aliens Office of a request for a visa with limited territorial validity, lodged on the basis of Article   25 §   1 (a) of the Visa Code by a Syrian family at the Belgian embassy in Beirut. Having received an application for a stay of execution under the extremely urgent procedure, the Aliens Appeals Board asked the CJEU to clarify the scope of the international obligations referred to in Article   25 of the Visa Code. 72.     In a judgment of 7 March 2017, the CJEU reiterated that under Article 1 of the Visa Code, the Code concerned visas for stays not exceeding 90 days. In the case in question, however, the visa applications had been lodged for the purpose of claiming asylum and therefore of being issued with a residence permit with a validity that was not restricted to 90   days. The CJEU thus concluded that those applications, although formally submitted on the basis of Article 25 of the Visa Code, fell outside the scope of the Code, in particular of Article 25 (1) (a). Furthermore, as no measure had been adopted by the EU legislature with regard to the conditions governing the issue by member States of long-term visas and residence permits on humanitarian grounds, the applications at issue fell solely within the scope of national law. 73 .     The CJEU indicated that to conclude otherwise would undermine the general structure of the system established by the European Union to determine the member State responsible for examining a request for international protection and would imply that the Visa Code required the States to permit third-country nationals to submit applications for international protection to the diplomatic or consular missions of member States that were within the territory of a third country. However, this was not the aim of the Visa Code, which was not intended to harmonise the laws of member States on international protection. COMPLAINTS 74.     The applicants complained that the Belgian authorities’ refusal to issue them with the so-called “humanitarian” visas had exposed them to a situation incompatible with Article   3 of the Convention (prohibition of torture and of inhuman or degrading treatment) with no possibility of remedying it effectively, as required by Article 13 (right to an effective remedy). 75.     The applicants further alleged a violation of Article 6 § 1 (right to a fair hearing) and Article   13 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 them with the visas they had requested under Article   3 of the Convention. THE LAW Articles 3 and 13 of the Convention 76.     Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 77.     Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 78.     The respondent Government submitted that the complaints alleging a violation of Articles 3 and 13 were inadmissible ratione loci, on the grounds that the applicants did not fall within their jurisdiction within the meaning of Article 1 of the Convention, which is worded as follows: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” The parties’ submissions on jurisdiction (a)    The Respondent Government 79.     The Belgian Government pointed out that it was well-established case-law that Article 1 of the Convention reflected the ordinary and essentially territorial understanding of the States’ jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case and the relevant rules of international law, without losing sight of the general context. In the present case, the applicants had not been territorially under the jurisdiction of the Belgian State, given that they were not in its national territory and that, in accordance with the Vienna Convention of 18 April 1961 on diplomatic relations, an embassy was not considered to be part of the national territory of the country it represented. Nor did the present case fall within the exceptional scenarios for extraterritorial exercise of Belgium’s jurisdiction as identified by the Court in the case of Banković and Others v.   Belgium and Others (dec.) [GC], no.   52207/99, ECHR 2001 ‑ XII). 80 .     According to the Government, there was, in particular, no question of acts which had produced effects outside the territory, as the only effect of the decision not to issue the applicants with short-term visas had been to prevent them from entering Belgian territory for a short stay, with no impact on their situation in Lebanon or Syria. The scenario of acts performed abroad by diplomatic or consular agents could also not be accepted. In contrast to the other cases involving such acts that the Court had already examined, the diplomatic agents in the present case had not exercised any form of authority or control over the first applicant, who had been free to come and go, and they had not performed any act affecting him. 81.     Lastly, relying on the cases of Abdul Wahab Khan v. the United Kingdom ((dec.), no.   11987/11, 28 January 2014) and Markovic and Others v.   Italy ([GC], no.   1398/03, ECHR   2006-XIV), the Government argued that the fact that the applicants had had access to Belgian administrative and judicial proceedings in order to have their visa requests examined and to challenge the decisions taken had no influence on Belgium’s jurisdiction over them. To conclude otherwise would imply a virtually universal application of the Convention, as the States Parties had embassies all over the world and any foreign national could apply to them for a visa. (b)    The applicants 82 .     The applicants argued that the Belgian courts had found on various occasions that although they were outside Belgian territory the applicants had been under Belgium’s jurisdiction, and these courts had accordingly applied Article 3 of the Convention. Indeed, the Court’s case-law clearly indicated that the responsibility of the States could be engaged on account of acts by their authorities which produced effects outside the national territory. 83.     In the present case, the Belgian State bodies which dealt with the applicants’ visa applications had reached decisions in their capacity as agents of the Aliens Office or as diplomatic agents, under the supervision of the Belgian authorities. In reaching their decisions these agents were exercising a State function of border control. When a State laid down the conditions of entry into its territory and the conditions of residence and settlement there, just as when it exercised its authority in this area and made decisions on visa applications, it was acting by