TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): The court unanimously found in favor of Aswad, and I argue today that Aswad follows Tarakel, Papusvili, and Tata.
AP1 (Applicant): The importance of family is also mentioned by the court in MT versus Sweden, where it's directly stated by the court that the family was actively assisting him, that they were available.
AP1 (Applicant): The family is there in the country.
AP1 (Applicant): Sabran had no family available in the country.
AP1 (Applicant): I will then briefly mention two cases about schizophrenic custody persons.
AP1 (Applicant): The first one is Musial versus Poland from 2009.
AP1 (Applicant): Musial was seen by staff on a daily basis.
AP1 (Applicant): The court says he was feeling inferior and powerless, and there was required increased vigilance is called for.
AP1 (Applicant): This is exactly what we are having today.
AP1 (Applicant): And the court also says in Musial that the detrimental effect on his health is in human degrading treatment.
AP1 (Applicant): I find Musial relevant.
AP1 (Applicant): The same is stated in G versus France from 23 February 2012, where the court talks in G versus France about the extreme vulnerability and uses the phrase hardship.
AP1 (Applicant): G is subjected to hardship exceeding the level of suffering inherent in detention.
AP1 (Applicant): This also shows the standard.
AP1 (Applicant): Two more judgments, Ruman versus Belgium from the Grand Chamber in January last year, specifically refers to the 2004 recommendation number 10 of the Committee of Ministers of the Council of Europe.
AP1 (Applicant): That recommendation mentions in Article 12 adequately qualified staff and appropriate individually prescribed treatment plans.
AP1 (Applicant): A treatment plan is required when you have serious mental illness.
AP1 (Applicant): Ruman also shows the increased protection by the European court of the mentally ill inside the convention system.
AP1 (Applicant): The last judgment to mention is Ben Said versus UK.
AP1 (Applicant): Let me stress, Mr. President, the facts of Ben Said and Sabran
AP1 (Applicant): are substantially different.
AP1 (Applicant): Ben Said has schizophrenia, but he was not paranoid schizophrenic.
AP1 (Applicant): Sabran has been seven years permanently in closed ward hospital.
AP1 (Applicant): Ben Said had been in hospital for a few days.
AP1 (Applicant): Ben Said had his parents and five brothers and sisters in Algeria, and he had only lived 11 years in the UK.
AP1 (Applicant): Sabran has no family in Turkey.
AP1 (Applicant): He does not speak the language, and he has been away for much longer.
AP1 (Applicant): Ben Said is, in my opinion, still valid.
AP1 (Applicant): It is still below the Article 3 threshold, Ben Said versus UK, in my opinion, but Sabran is certainly not below the threshold.
AP1 (Applicant): I then turn to the third party interventions, and I'll come with a few remarks to those.
AP1 (Applicant): I would like to emphasize the University of Paris-Nanterre's statement.
AP1 (Applicant): It is very important, and it has a wealth of legal sources.
AP1 (Applicant): I also note that they talk about the American Psychiatric Association's guidelines, including the importance of a family intervention for this type of intervention.
AP1 (Applicant): For this type of psychiatric patient.
AP1 (Applicant): This is a core matter for my client, both under Article 3 and under Article 8.
AP1 (Applicant): I will highlight the Gardner versus Canada decision, which is mentioned in there.
AP1 (Applicant): He was a paranoid schizophrenic, and there was a violation of the covenant because he was, as the committee said, effectively resulted in an abrupt withdrawal of available medical and family support.
AP1 (Applicant): This is the same as in our case, and I find it important that the Human Rights Committee arrives at the same conclusion as the chamber did in Savron.
AP1 (Applicant): Amnesty International, I also refer to them, especially that they state that mental health is on a par with physical health.
AP1 (Applicant): And they stress that access to medical intervention should be seen as a broader concept.
AP1 (Applicant): The German intervention in this case, I note that they explicitly state that the practice in Germany is to qualify whether there's a contact person for a mentally ill person.
AP1 (Applicant): So Germany basically says the same as the majority said in Savron.
AP1 (Applicant): I also note that the Netherlands state in their case the Netherlands state in their intervention that having a social or family network may be necessary to effectively access the care.
AP1 (Applicant): Germany and Netherlands speak about the importance of the family network and a contact person.
AP1 (Applicant): Switzerland, they refer to some cat decision in the Committee Against Torture.
AP1 (Applicant): I will highlight, and I send it to the court on e-comms this morning and to the government, AN versus Switzerland, 3 August 2018.
AP1 (Applicant): It was again a person with a very serious mental disease.
AP1 (Applicant): He provided medical reports and the committee states a violation of the torture convention because of the lack of specialized medical treatment and the absence of any family support in Italy.
AP1 (Applicant): This would prevent his full rehabilitation.
AP1 (Applicant): The absence of a stable social environment provided by his brother and the ill treatment would entail a risk of his medical condition being worsened.
AP1 (Applicant): This was a breach of the torture convention.
AP1 (Applicant): So the majority in Savron does not stand alone.
AP1 (Applicant): They are together with the Committee Against Torture and the Human Rights Committee in Geneva.
AP1 (Applicant): Article 8, I don't have much time, Mr. President,
AP1 (Applicant): so I'll basically refer to the written comments there, stressing that he was, our client was very much relying on his mother and his sisters and brothers in Denmark.
AP1 (Applicant): I will then say a few words towards the end about his situation.
AP1 (Applicant): And I do this together with my colleague, Bollskifte.
AP1 (Applicant): Savron is very weak.
AP1 (Applicant): He's seriously ill with his paranoid schizophrenic disease.
AP1 (Applicant): He needs permanent medical treatment, which he does not get at all in Turkey.
AP1 (Applicant): He's completely helpless, and he feels inferior and powerless.
AP1 (Applicant): He is, in fact, in a terrible state, and he is devastated.
AP1 (Applicant): He's alone, and he is on his own.
AP1 (Applicant): He has no family or relatives in the village, nor in other parts of Turkey, and he lives very isolated as he does not speak the Turkish language.
AP1 (Applicant): His illness, his limited mental capacity means he cannot learn a new language on a level that can support social engagement.
AP1 (Applicant): He stays inside.
AP1 (Applicant): He does not know the streets, and therefore he's afraid of getting lost and not being able to find his wake, again bearing in mind his strongly diminished intellectual capacity.
AP1 (Applicant): He found his way to the hospital in Konya for the first time six months after his arrival in Turkey.
AP1 (Applicant): He was in touch with a doctor for a few minutes and showed a piece of paper describing the medication in Denmark.
AP1 (Applicant): The doctor didn't do an examination, a health check, or any kind of follow-up on his development and mental health, and the doctor was a somatic doctor, not a psychiatrist.
AP1 (Applicant): Availability of medicine for him is to a very high degree random and ad hoc.
AP1 (Applicant): There's no follow-up.
AP1 (Applicant): There's no monitoring by professionals of him.
AP1 (Applicant): There's no follow-up to see if he fails to show up, and neither does the hospital at all follow up on side effects of the medication, even though his side effects can be of a very serious degree.
AP1 (Applicant): The hospital is not a psychiatric hospital, as the Danish government has stated, but a public hospital that treats somatic illnesses, and the doctor he communicates with is not a psychiatrist.
AP1 (Applicant): At times, the doctor has not been available, and he only gets access to a secretary at the hospital.
AP1 (Applicant): He was last there in March 2020, and he communicated very briefly with a nurse.
AP1 (Applicant): The court has asked us to present his status, but we cannot, Mr. President,
AP1 (Applicant): provide reports of his medical assessment.
AP1 (Applicant): He does not receive any treatment, and he does not even have a contact person or a psychiatric consultant available.
AP1 (Applicant): I note, regarding the burden of proof, that Denmark has not provided any medical status, neither has the Turkish government about Mr. Sabran.
AP1 (Applicant): I turn, Mr. President, to my concluding remarks,
AP1 (Applicant): and I only have two minutes left.
AP1 (Applicant): The government seems to argue that the threshold of Article 3 is lowered.
AP1 (Applicant): We strongly dispute this, and we also dispute that a contact person is only a social measure.
AP1 (Applicant): It's not only a social measure.
AP1 (Applicant): It's an integrated and pivotal element of the medical treatment of a paranoid schizophrenic patient.
AP1 (Applicant): Again, we highlight Judge Lemons and the other judges' statement in the majority, the essential role of monitoring a follow-up scheme and a contact person.
AP1 (Applicant): And again, I stress that several psychiatric evaluations were produced on behalf of the state prosecutor, so the medical certificates that the court is asking in Papusvili, they were fully in place here.
AP1 (Applicant): Again, it's a legal forensic declaration inside the official criminal justice system that was given to the courts in Denmark, which also secures their validity, the seriousness of the statements by the doctors.
AP1 (Applicant): Last sentence.
AP1 (Applicant): From seven years behind closed doors, behind locked doors in a psychiatric hospital, my client had intensive treatment day in and day out.
AP1 (Applicant): From this to the imminent risk of de facto no treatment in Turkey, a fear that was very sadly materialized from June 2015 onwards, and is still today, Mr. President,
AP1 (Applicant): a devastating reality five years later.
AP1 (Applicant): Close monitoring and follow-up to secure effective treatment was required, and the high court in Copenhagen let him down on this Article 3 protection.
AP1 (Applicant): Article 3 enshrines one of the most fundamental values of a democratic society.
AP1 (Applicant): As the Grand Chamber stated last year in Roman, the city court in Copenhagen secured Mr. Savran
AP1 (Applicant): his Article 3 rights, and I respectfully urge the Grand Chamber to do the same today.
AP1 (Applicant): This in full accordance with the already well-established standards from the court's rich jurisprudence on Article 3.
Robert Spano (JudgeP): Mr. Trier, I confirm that both your audio and video was very clear.
Robert Spano (JudgeP): We now turn to the government.
Robert Spano (JudgeP): Mr. Braad, you have the floor.
Robert Spano (JudgeP): Thank you.
GR1 (Government): it's an honor to appear before you again on behalf of the Danish government.
GR1 (Government): The case before you today concerns the question whether the expulsion of the applicant, a 35-year-old criminal alien suffering from paranoid schizophrenia, was compliant with Article 3 and with Article 8 of the European Convention on Human Rights.
GR1 (Government): The applicant was deported to Turkey on 23rd June 2015 based on a conviction for assault under highly aggravating circumstances.
GR1 (Government): In the Danish government's opinion, the expulsion of the applicant did not violate Article 3 or Article 8 of the convention.
GR1 (Government): The main issue at hand is the interpretation of Article 3 in connection with the removal of a mentally ill person to his country of origin.
GR1 (Government): The key question is whether absence of a regular and personal contact person in the applicant's home country is sufficient to bring the case within the scope of Article 3.
GR1 (Government): If the answer to that question is yes, it would constitute a very significant broadening of the scope of Article 3 in an area politically very sensitive to many contracting states and with potentially far-reaching resource implications.
GR1 (Government): Mr. President, I will start my submission
GR1 (Government): by focusing on the chamber judgment, and I will then turn to the specific question of the majority's application of the criteria established by the Grand Chamber in the case Papasvili versus Belgium from 2016 and the scope of Article 3 of the convention.
GR1 (Government): And I will then conclude with a few observations on the question of Article 8.
GR1 (Government): The majority of the members of the chamber found that the Danish authorities should have assured themselves that upon the applicant's return to Turkey, a regular and personal contact person would be offered by the Turkish authorities as part of this treatment, and that this amounted to a violation of Article 3 of the convention.
GR1 (Government): The government respectfully disagrees with this conclusion and disagrees with the majority's application of the criteria as established by the Grand Chamber in the Papasvili case.
GR1 (Government): And we also disagree with the applicant's counsel's reading of the Papasvili case as presented here this morning.
GR1 (Government): And let me explain why by recalling the very specific and the very explicit criteria established in the Papasvili judgment.
GR1 (Government): In the crucial paragraph 183 of the Papasvili judgment, the court clarified the meaning of the term, and I quote, very exceptional cases used in the judgment in versus the United Kingdom from 2008.
GR1 (Government): The court found that other than imminent death, the term should be understood to refer to, and I quote, situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at an imminent risk of dying, would face a real risk on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment of being exposed to a serious, rapid, and irreversible decline in his or her state of health, resulting in intense suffering or to a significant reduction in life expectancy, end of quote.
GR1 (Government): Now, with this clarification, the court established two separate criteria for determining whether a removal of a seriously ill alien to his country of origin would violate Article III.
GR1 (Government): And the criteria may be referred to as, one, the severe disease criterion, and secondly, the treatment criterion.
GR1 (Government): Now, it follows from the severe disease criterion that consequences to the alien's health in the event of removal may raise questions under Article III, but only if the alien in question suffers from, quote, a serious illness.
GR1 (Government): A further requirement is that in case of removal, a lack of proper medical treatment would expose the alien to, and again, I quote, a serious, rapid, and irreversible decline in his or her state of health, resulting in intense suffering or to a significant reduction in life expectancy, end of quote.
GR1 (Government): So it follows from the treatment criterion that it has to be assessed whether the care generally available in the receiving state is sufficient and appropriate, and also whether the individual in question will actually have access to the care, to such care and facilities in the receiving state.
GR1 (Government): And contrary to what the applicant is arguing, it's only when both the disease criterion and the treatment criterion are satisfied that the returning state must obtain an individual and sufficient assurance from the receiving state that appropriate treatment will be available and accessible to the persons concerned.
GR1 (Government): Mr. President, it's very important to note the relationship
GR1 (Government): between the severe disease criterion and the treatment criterion.
GR1 (Government): The severe disease criterion is, as pointed out by the dissenting judges in the chamber of judgment, it's a threshold criterion.
GR1 (Government): The criterion must be satisfied before it's even relevant to assess the treatment option in the event of removal.
GR1 (Government): In other words, it's only when the consequences to the applicant's health upon removal reach the level required by the severe disease criterion that the relevant treatment options must be assessed.
GR1 (Government): Mr. President, the government would
GR1 (Government): challenge the chamber majority's application of the Papu Shvili criteria and would do so based on two grounds.
GR1 (Government): First, the government submits that the severe disease criterion set out in the Papu Shvili judgment is not applicable in determining whether the removal of mentally ill aliens would be in violation of Article 3.
GR1 (Government): In cases involving mental illness, a very high threshold should be maintained in line with the court's previous case law, as for example, in the cases of Ben Said versus the United Kingdom and Tata versus Switzerland.
GR1 (Government): This is based on the consideration that due to its nature, the symptoms, and possible treatment, mental illness cannot be treated in the same way as terminal or other very serious physical illness that requires continued intensive treatment.
GR1 (Government): And I refer to paragraphs 30 to 36 of our memorial for elaboration on this point.
GR1 (Government): Second, assuming that the criterion actually does apply in the present case concerning a mentally ill alien, the government submits that the criterion has not been applied correctly by the chamber and not been met in the present case.
GR1 (Government): The majority did assess the treatment criterion, but it did not apply the threshold criterion concerning severe disease.
GR1 (Government): Also in the assessment of the relevant treatment options, that is the access to a regular contact person, the majority applied a new and a broader reading of Article 3.
GR1 (Government): And I will elaborate on this in the following.
GR1 (Government): As stated in our memorial, paragraph 13, the Danish courts carefully assessed the impact of the removal of the applicant, the impact on the applicant's health, in light of the information provided by national health authorities and medical experts.
GR1 (Government): Obviously, the courts did not take into account the specific published really severe disease criterion, simply because the courts made the decisions before the published really judgment was handed down.
GR1 (Government): However, there's absolutely no basis in the medical information presented to the Danish courts or in the Danish courts assessment for concluding that the applicant upon removal would be in risk of consequences exceeding the high threshold established by the severe disease criterion in the published really judgment.
GR1 (Government): None of the medical statements presented before the Danish courts indicated that the applicant would risk, and I quote, intense suffering or, and again I quote, significant reduction in life expectancy in case of removal.
GR1 (Government): The medical statements did indicate, inter alia, how the applicant would potentially become aggressive and dangerous to others in case he would not receive his prescribed medication.
GR1 (Government): But this is not sufficient to meet the severe disease criterion.
GR1 (Government): Here the government refers to paragraph 40 of our memorial.
GR1 (Government): It describes the medical information presented to the Danish courts.
GR1 (Government): And it appears from this information, inter alia, that the applicant had complete awareness of his illness, was highly motivated for psychiatric treatment, including treatment with psychoactive drugs, and that he clearly acknowledged his need for therapy.
GR1 (Government): It also appears that he had a good prospect of recovery if subjected to follow up and control in connection with intense outpatient therapy when discharged.
GR1 (Government): This clearly demonstrates that the applicant's situation did not satisfy the threshold criterion, including the requirement that the applicant would risk a serious, rapid, and irreversible decline in his state of health, resulting in, and I quote, intense suffering on his removal to Turkey.
GR1 (Government): The government also recalls that the Danish High Court, in its decision on 13 February 2015, found that the applicant's health did not, in a decisive way, speak against his removal.
GR1 (Government): The High Court stressed the information provided on specific treatment options and found that in these circumstances, removal of the applicant was not contrary to Article 3.
GR1 (Government): It is correct that the Danish City Court had previously reached a different conclusion.
GR1 (Government): It did so with reference, in particular, to the medical doctor's assessment of the risk of a resumed substance abuse and that the applicant would potentially, again, become aggressive and potentially assault other persons.
GR1 (Government): So neither of the two decisions gives basis for concluding that the severe disease criterion is satisfied.
GR1 (Government): The majority did not consider whether the disease criterion was met in the present case.
GR1 (Government): The majority simply stated, in paragraph 63, that returning the applicant to Turkey would cause him, and I quote, additional hardship.
GR1 (Government): This clearly does not reach the high threshold established in the Papus-Willi case, where the requirement is, and I quote again, intense suffering or significant reduction in life expectancy.
GR1 (Government): Nevertheless, the majority then proceeded directly to assess whether the treatment criterion was satisfied.
GR1 (Government): And now this is a critical point.
GR1 (Government): The severe disease criterion is, as I mentioned, a threshold criterion.
GR1 (Government): If the criterion is not satisfied, there can be no violation of Article 3, according to the court's jurisprudence, and no matter the relevant treatment options.
GR1 (Government): One could ask the question here, whether the majority just dealt with the criterion implicitly before proceeding to apply the Papus-Willi treatment criterion on availability and accessibility of medical treatment.
GR1 (Government): And accessibility of medical treatment.
GR1 (Government): But even if that was the case, then for the reasons that I've already mentioned, there was no basis in the medical information or in the assessment by the Danish courts for concluding that the severe disease criterion was satisfied.
GR1 (Government): The medical assessment of the applicant points to the following risk.
GR1 (Government): If the applicant is not subjected to appropriate treatment, he may resume substance abuse, and this may worsen his psychotic symptoms and may lead to aggressive behavior towards others.
GR1 (Government): So while this demonstrates that the applicant does suffer from a mental illness requiring treatment, it does not demonstrate that the applicant would, upon removal, be subject to intense suffering, meeting the high threshold of Article 3.
GR1 (Government): A conclusion that the applicant would risk intense suffering therefore does not rest on medical grounds, nor does it rest on an assessment by the national Danish courts.
GR1 (Government): It is therefore the opinion of the government that the Chamber acted as a court of fourth instance and that it did not have any new medical basis for reaching its conclusion.
GR1 (Government): I would also like to draw the court's attention to the information provided by the applicant himself.
GR1 (Government): It cannot be deduced from this information that he has experienced any relapses or any worsening of his psychotic symptoms after his deportation to Turkey.
GR1 (Government): On the contrary, according to his own information and what we heard this morning, he has been able to consult a somatic doctor when needed and has received medical treatment.