TrustHLT/LaCour huggingface dataset:
GR1 (Government): The government notes that the Swedish hourly legal aid fee for 2016 is Swedish kronor 1,653, VAT included.
GR1 (Government): The government holds that a reasonable amount as compensation for costs before the grand chamber should not exceed 30 hours work by their counsel.
GR1 (Government): Finally, Mr. President, let me just
GR1 (Government): draw the grand chamber's attention to the fact that the decision to expel the applicant family will become statute barred on 9 August this year.
GR1 (Government): In view of this, the government would like to stress the importance that the grand chamber decides the case in good time before that date.
GR1 (Government): In concluding, Mr. President, the government
GR1 (Government): invites the court to hold that there has been no violation of article three of the convention in the present case.
GR1 (Government): I thank you, Mr. President, distinguished members
Guido Raimondi (JudgeP): Thank you very much, Ambassador Rönquist.
Guido Raimondi (JudgeP): Now I turn to my colleagues in order to invite them to put questions to the parties.
Guido Raimondi (JudgeP): Do they have any?
Guido Raimondi (JudgeP): But I see Judge Motoc, please, you have the floor.
Iulia Antoanella Motoc (Judge): Thank you very much, Mr. President.
Iulia Antoanella Motoc (Judge): I also thank the parties for their interventions.
Iulia Antoanella Motoc (Judge): I have a question to the government.
Iulia Antoanella Motoc (Judge): You have stated here that you have laws in Sweden that protect the migrants.
Iulia Antoanella Motoc (Judge): You have quoted here the Swedish law on migration, the Swedish law for aliens, the preparatory work for aliens.
Iulia Antoanella Motoc (Judge): But you didn't mention here if you have relevant national or policy guidelines that indicate general practice regarding the burden of proof of asylum seeker, namely more concrete, if you have certain indication to give in advance to asylum seeker, how they have to formulate the police advice for their own countries, namely for Iraq, because your migration board find that this is not satisfactory for Sweden.
Iulia Antoanella Motoc (Judge): Do you know exactly how this have to be given, how many witnesses have to be there, how much, how many indication the police had to give in the concrete case for each country, or this depends for case to case?
Guido Raimondi (JudgeP): The court will now rise for, say, 20 minutes, following which the parties will return for a second round of short pleadings to respond to the submissions in the first round and to the questions put by Judge Motoc.
Guido Raimondi (JudgeP): The hearing is now resumed and I call Mrs. Skyfacos.
Guido Raimondi (JudgeP): You have the floor please.
AP1 (Applicant): Mr. President, the Swedish government has in their pleading stated that ISIS is no longer
AP1 (Applicant): a threat towards my clients.
AP1 (Applicant): Our submitted comfort information testifies to the contrary.
AP1 (Applicant): It testifies among other things that former interpreters and collaborators have suffered ill-treatment by members of ISIS when ISIS has taken control over a certain area in Iraq.
AP1 (Applicant): They have searched for these persons and tried to get them killed and they did not get them like a herring in the court.
AP1 (Applicant): They just found them and killed them.
AP1 (Applicant): And our submitted comfort information testifies to that devastating destiny of former interpreters and collaborators to the American forces.
AP1 (Applicant): It is also common knowledge that ISIS is a branch of former Al-Qaeda and it's common knowledge that former members of Al-Qaeda do operate in Baghdad together with ISIS members.
AP1 (Applicant): They have been Al-Qaeda members but are now in the position of being ISIS members.
AP1 (Applicant): They just shifted the group on which they work within.
AP1 (Applicant): And that's it.
AP2 (Applicant): Regarding the protection from the authorities, our applicant could not seek protection from the authorities out of fear that his address would be revealed and that his family would be in further danger.
AP2 (Applicant): The government have commented in their pleadings that my client was not a victim of ill treatment between 2008 and 2010.
AP2 (Applicant): This was only because they were in hiding during that time.
AP1 (Applicant): And I don't understand why the Swedish government find this questionable, why he was not suffered, why he didn't suffer a treatment between 2008 and 2010, when in fact my client told everybody that he was hiding and moving around in Baghdad and his son didn't even go to school, they didn't leave their house.
AP1 (Applicant): And if you see how common people that is trying to avoid to be prosecuted by state officials, they can hide in years without the police finding them and searching for them.
AP1 (Applicant): So I don't understand why the government feels this so remarkable that he indeed did hide and was not found by the Al-Qaeda members.
AP1 (Applicant): And he didn't want to seek the international protection because he was afraid of, that if he made a statement of ill-treatment to the government officials, then he had to reveal his current address and then his family would be in risk even more because then it would be possible for Al-Qaeda to find him.
AP1 (Applicant): Al-Qaeda did infiltrate the state officials in Iraq and they did also corrupt the state officials.
AP1 (Applicant): That can be no secret to the Syrian government.
AP1 (Applicant): Regarding the comparison of Russia versus Sweden, in our case, we have already commented on this aspect, so we will not go into this further.
AP1 (Applicant): I do notice that the Swedish government did comment on the police report that we submitted stating that Jake's house had been burned down by Al-Qaeda members.
AP1 (Applicant): They said that you couldn't read from the police report who burned down the house.
AP1 (Applicant): But we say, as we already said in 2012, to the immigration court, that it does say, by the document that we submitted, it does say who committed, who burned down the applicant's house.
AP1 (Applicant): And it does say that it was Al-Qaeda.
AP1 (Applicant): And regarding the fact that there were two addresses, as we already told the court, my client did not live in this house that was destroyed.
AP1 (Applicant): He had moved around in Baghdad, and that's why there were two different addresses in the police report.
AP1 (Applicant): Regarding the cost of the bill, Mr. Landahl has commented that he sees it unreasonable
AP1 (Applicant): that we claim that we have submitted of 78 hours.
AP1 (Applicant): But if we look to our side of the table and we look at Runqvist's side of the table, there are six persons and we are two persons.
AP1 (Applicant): So I wonder how many hours did you spend on your cost of bills.
AP1 (Applicant): I'm sure of that you have extended my costs by far.
AP1 (Applicant): Thank you Mr. President, Honourable Members of the Court.
Guido Raimondi (JudgeP): Thank you very much Mrs. Skyfacos.
Guido Raimondi (JudgeP): Thank you Mrs. Nilsson.
Guido Raimondi (JudgeP): And now Mr. Ambassador Rönquist, you have the floor please.
GR1 (Government): let me first turn to the question of Judge Mottok on the questions of burden of proof and rules on evidence according to the Swedish system.
GR1 (Government): Two fundamental principles in Swedish evidential law is the principle of free sifting of evidence and the principle of free evaluation of evidence, which are outlined in the Swedish Code of Judicial Procedure and in the Administrative Procedures Act.
GR1 (Government): According to the principle of free sifting of evidence, there are no legal limitations on what evidence a party can invoke.
GR1 (Government): The principle of free evaluation of evidence means that authorities and courts are free to evaluate submitted evidence without regards to any rules in law.
GR1 (Government): These principles, when it comes to asylum cases, are further elaborated in the Swedish Migration Agency's Handbook on Asylum Cases.
GR1 (Government): The ex officio inquiry principle in Swedish law requires the Swedish administrative courts to ensure that a case is investigated to the extent its nature so requires.
GR1 (Government): The principle is explicitly outlined in the Administrative Procedures Act, which means that it only applies to administrative courts, such as the migration courts, but should also be applied by administrative authorities, such as the Swedish Migration Board, according to customary law.
GR1 (Government): Mr. President, the representatives
GR1 (Government): of the applicants refer to Article 4.4
GR1 (Government): in the qualification directive.
GR1 (Government): It is true that that article states that the fact that an applicant has already been subject to persecution or serious harm is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm.
GR1 (Government): This, however, only applies if there are no good reasons to consider that such persecution or serious harm will not be repeated.
GR1 (Government): In this case, there are good reasons to consider that the persecution will not be repeated.
GR1 (Government): Firstly, a long time has passed since they suffered ill treatment.
GR1 (Government): Secondly, and this is of most importance, the security situation in the applicant's country of origin has changed.
GR1 (Government): As the government already stated, according to the country information, the Iraqi authorities are not today deemed to be infiltrated by terrorist groups, such as al-Qaeda or Daesh.
GR1 (Government): Recent country of origin information does not support that former collaborators of the US forces are direct targets of Daesh.
GR1 (Government): Instead, Daesh target mainly Christians and other religious groups.
GR1 (Government): Yazidis is the most exposed group.
GR1 (Government): Thus, the applicant would no longer risk the same kind of persecution.
GR1 (Government): This means that in this case, past persecution is not a serious indication of the risk of future persecution.
GR1 (Government): Finally, it is the situation for the individuals in this case which should be the basis for the assessment.
GR1 (Government): I thank you very much, Mr. President,
Guido Raimondi (JudgeP): Thank you very much, Ambassador.
Guido Raimondi (JudgeP): I thank the parties for their interventions and answers to the question of the court.
Luis López Guerra (JudgeP): Good morning. I declare open the public hearing on the merits in the case of Baka v. Hungary.
Luis López Guerra (JudgeP): The application was lodged with the Court on 14 March 2012 under Article 34 of the Convention by a Hungarian national, Mr. András Baka. The application was allocated to the second
Luis López Guerra (JudgeP): section of the Court pursuant to Rule 52, Paragraph 1 of the Rules of the Court. On
Luis López Guerra (JudgeP): 27 May 2014, a chamber of the second section delivered its judgment in the case. On 27
Luis López Guerra (JudgeP): August 2014, the Government requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and the panel of the Grand Chamber accepted the request of 15 December 2014. On 5 March 2013, the President of the second section
Luis López Guerra (JudgeP): granted leave to the Hungarian Helsinki Committee, the Hungarian Civil Liberty Union, the Eötvös Karolyi Institute and the Helsinki Foundation for Human Rights, based in Poland, to submit written comments under Rule 44, Paragraph 3 of the Rules of the Court. On 11 March 2015,
Luis López Guerra (JudgeP): the President of the Grand Chamber granted leave to the International Commission of Jurists to submit written comments under Rule 44, Paragraph 3 of the Rules of the Court. The
Luis López Guerra (JudgeP): Government is represented by the agent, Mr. Zoltán Tallódi, assisted by Mrs. Mónika Weller,
Luis López Guerra (JudgeP): co-agent. The applicant is represented by his counsel, Mr. András Cech, assisted by
Luis López Guerra (JudgeP): Mr. Erik Látrányi, advisor. I welcome the representative in the name of the Court. I also welcome a
Luis López Guerra (JudgeP): delegation of judges, including its President from the Court of Cassation of Armenia, a delegation of Ukrainian judges and a delegation of French judges. Having consulted the agent
Luis López Guerra (JudgeP): of the Government and the representatives of the applicant, I have determined the order of addresses as follows. First, Mr. Cech, for the applicant, will speak first, and then
Luis López Guerra (JudgeP): Mr. Tallódi will speak for the Government. I will explain that, in addition to interpreting
Luis López Guerra (JudgeP): in the two official languages of the Court, English and French, interpreting into Russian and Armenian has been authorised for the benefit of the groups of judges from Ukraine and Armenia attending this hearing. That interpreting is not arranged by the Court, and no transcription
Luis López Guerra (JudgeP): of the oral translation will be included in the official record of the proceedings. I
Luis López Guerra (JudgeP): call Mr. Cech to the floor.
AP1 (Applicant): it is a great privilege to appear before you this morning representing the applicant, Mr. Baka,
AP1 (Applicant): the former president of the Supreme Court of Hungary.
AP1 (Applicant): When I give a brief outline of the applicant's position in this highly unusual case, let me start with quoting the first sentences of his letter, which was sent to the Hungarian Prime Minister, Mr. Orbán.
AP1 (Applicant): In states governed by the rule of law, the role of the president of the Supreme Court and that of the persons in charge of court administration consists in performing their specialized professional everyday duties.
AP1 (Applicant): It is under very special circumstances only that they have to raise their voice to protect independence of the courts and judges.
AP1 (Applicant): Indeed, such an exceptional situation arose in 2011 in Hungary, when the applicant felt obliged to speak up on account of four issues vitally affecting the judicial system.
AP1 (Applicant): Firstly, he called into question the bill of the so-called Nullification Act.
AP1 (Applicant): This act ordered reopening final judgments delivered in relation to crowd dispersion in autumn 2006.
AP1 (Applicant): The applicant criticized the manner in which the goal of the act would be achieved, namely reopening final judgments, denying free assessment of evidence, and annulling judicial decisions by the force of law.
AP1 (Applicant): This legislation also set an alarming precedent.
AP1 (Applicant): If a political force orders reopening a group of already closed cases that it dislikes, other political forces could do the same with other final judgments.
AP1 (Applicant): In response to these concerns, he got hostile reaction from the side of the ruling forces, denying that final judgments would be bind the legislator.
AP1 (Applicant): This court hardly needs to be reminded of the principles of separation of powers and of legal certainty, which involve that even the legislator shall be bound by final judgments.
AP1 (Applicant): The second issue which provoked shock and protest was the drastic reduction of the retirement age of judges by eight years that resulted in the forced and immediate retirement of 1 10th of the judiciary, affecting mainly senior high court and Supreme Court judges.
AP1 (Applicant): This rule was adopted after only nine days of parliamentary debate without any consultation of the judiciary.
AP1 (Applicant): As a result, the reaction was unanimous amongst judges.
AP1 (Applicant): The plenary session of the Supreme Court, the National Judicial Council, as well as the presidents of regional and county courts addressed the communique to the Hungarian and European Union public.
AP1 (Applicant): They argued for the autonomy and independence of the judiciary by criticizing the new mandatory retirement age.
AP1 (Applicant): As I mentioned, the applicant wrote an official letter to the prime minister, too, urging him to use his influence and to make every possible effort to prevent parliament from adopting the proposal.
AP1 (Applicant): However, despite all criticism, the rules have been incorporated into the new constitution, excluding thereby any scrutiny by the constitutional court.
AP1 (Applicant): When considering the applicant's activity in the matter at hand, please note that he was not directly affected by the sudden reduction of the age limit.
AP1 (Applicant): The third issue of this agreement related to the constitutionality of the amendment of the Code on Criminal Procedure.
AP1 (Applicant): This act empowered the chief prosecutor to depart from statutory rules of jurisdiction and cherry pick a court when lodging an indictment.
AP1 (Applicant): The new regulation extended from three days to five the maximum period of detention without bringing the detainee before a judge, grossly neglecting this way the jurisprudence under Article 5.3
AP1 (Applicant): In cases of great importance, the new law prohibited all exchanges between the defendant and his or her counsel for the first two days of the detention.
AP1 (Applicant): For these reasons, the applicant, as chief justice, decided for the first time in the Hungarian legal history to turn to the constitutional court, which eventually established the unconstitutionality of the impugned provisions and therefore quashed them.
AP1 (Applicant): It is noteworthy that as a response to this decision, the disavowed provisions concerning the chief prosecutor's right to establish extra court competence was nevertheless reenacted in the new constitution, thereby immunizing it from further constitutional examination.
AP1 (Applicant): Lastly, the applicant spoke up in the parliamentary debate on the new cardinal acts on the judiciary.
AP1 (Applicant): He sent a detailed analysis of the bills to parliament, taking account of the comments received from judges throughout the country.
AP1 (Applicant): Then, as no reaction received, he decided to express his opinion directly before the parliament in accordance with the pertinent rules.
AP1 (Applicant): In his speech, the applicant criticized mostly the fact that the collective decision-making power of the National Judicial Council was conferred to a single politically appointed chief executive of the court administration, who got excessive and in Europe unprecedented powers without any accountability.
AP1 (Applicant): We invite the court to bear in mind that the applicant, being the head of the judiciary, was under an explicit statutory obligation to express opinion on parliamentary draft legislations affecting the judiciary.
AP1 (Applicant): The concerns he raised were not his isolated ideas, but reflected the previously surveyed standpoint of the members of the judiciary.
AP1 (Applicant): The legal issues at stake were of high importance, as they affected fundamental matters, principally the basic institutions and judicial independence.
AP1 (Applicant): They were so relevant that even the organs of the Council of Europe, like the monitoring committee of the Parliamentary Assembly and the Venice Commission, and European Ombudsman, the European Commission, the European Parliament, the Human Rights Watch, Chief Justices of the European Union, and different organizations of judges and lawyers from other countries, or even foreign governments, expressed their concern and disagreement.
AP1 (Applicant): These critical views of the applicant were fully shared and repeated by these organizations.
AP1 (Applicant): What is more, the European Court of Justice also condemned Hungary on account of the forced early retirement of judges.
AP1 (Applicant): As a consequence of the harsh international criticism and pressure, the Hungarian government had to change the relevant legislation.
AP1 (Applicant): However, they changed them to the minimum extent.
AP1 (Applicant): As a consequence of these interventions, the applicant has been removed from office.
AP1 (Applicant): The removal was carried out despite the government having consistently denied that the new laws on judiciary would entail the termination of the applicant's term of office.
AP1 (Applicant): They even assured the Venice Commission that the applicant would continue his term as president of the Courier.
AP1 (Applicant): In the face of all that, the applicant was not only removed, which necessarily involved the loss of his actual entitlements, but nine days later, by a personalized legislative provision, he has also been fully deprived of all his post-term presidential benefits, including presidential pension, which would have been due to him automatically after termination of office.
AP1 (Applicant): Please bear in mind that the applicant's case is by far not an isolated example of the personalized legislation.
AP1 (Applicant): Since 2010, it has been a common practice of the ruling forces to resolve particular situations by taking individual measures in form of legal provisions.
AP1 (Applicant): Dozens of different, so to say, problems were already resolved by means of tailor-made legislation.
AP1 (Applicant): The Hungarian third party intervener gave a comprehensive review of this practice, which is without example in Europe.
AP1 (Applicant): It is based upon a sweeping parliamentary majority, which votes all government proposals with military discipline.
AP1 (Applicant): Turning to the complaint under Article VI, we are convinced that the chamber rightly established the applicability of this article.
AP1 (Applicant): As a preliminary remark, let me remind you that in our written submission, we quoted a series of access to court cases where this court has applied the Eskalinan test.
AP1 (Applicant): Therefore, the government's objection suggesting the inapplicability of this test to the right of access cases must be deemed simply outdated.
AP1 (Applicant): This court, in the case of Vilho Eskalinan and others versus Finland, established a presumption that Article VI applies to employment disputes involving civil servants unless the following two conditions are fulfilled.
AP1 (Applicant): Firstly, the state in its national law must have expressly excluded access to a court for the postal category of staff in question.
AP1 (Applicant): Secondly, this exclusion must be justified on objective grounds in the state's interest.
AP1 (Applicant): As far as the first criterion is concerned, according to the well-established Strasbourg case law, it must be interpreted strictly.
AP1 (Applicant): Only a clear and express exclusion may warrant the inapplicability of Article VI.
AP1 (Applicant): By contrast, in Hungarian law, there was no such provision.
AP1 (Applicant): Furthermore, this exclusion must affect a certain post or category of staff in an abstract manner.
AP1 (Applicant): But the legislative act in question, which terminated the ongoing mandate of the Chief Justice, was applicable only to one person at a given moment, notably the applicant alone.
AP1 (Applicant): Therefore, it did not treat this post generally, nor any other category of staff.
AP1 (Applicant): What is more, the applicant's right of access to court, rather than being excluded, was guaranteed by plain terms.
AP1 (Applicant): The text of the law is clear.
AP1 (Applicant): All judges, court executives, including court presidents without exception, were vested with the right to bring an action before the service tribunal in order to contest their dismissal.
AP1 (Applicant): This explicit right of the applicant was eventually precluded by the enactment of his dismissal into the Constitution.
AP1 (Applicant): Consequently, the government failed to prove the fulfillment of the first condition of the Eskalinan test.
AP1 (Applicant): And this would in itself be sufficient to conclude to the applicability of Article VI.
AP1 (Applicant): But even assuming that such a legal ground existed, it wouldn't have been justified on objective grounds in the state's interest either.
AP1 (Applicant): Our firm assessment is that the government did not specify any objective ground in the present case that could justify the exclusion of the applicant's right of access to court.