TrustHLT/LaCour huggingface dataset:
Angelika Nußberger (Judge): My other three questions are of quite a technical nature and more addressed to the government.
Angelika Nußberger (Judge): So in as far as the applicant has contributed to the disability pension, is there a specific contribution to disability pension or covers it both disability and old age pension?
Angelika Nußberger (Judge): Or is there a differentiation?
Angelika Nußberger (Judge): And the next question is, if the pension had not been withdrawn, would it be transferred, the disability pension, into an old age pension at a certain moment?
Angelika Nußberger (Judge): And if yes, when?
Angelika Nußberger (Judge): And last question, if she now, is she still eligible to get an old age pension or is she excluded from the possibility of having an old age pension as well?
Guido Raimondi (JudgeP): Thank you very much. President López Guerra.
Luis López Guerra (Judge): Thank you.
Luis López Guerra (Judge): Well, as far as it could have any relevance for the assessment of the case by this court, could the applicant give us some information on the medical or clinical reasons for the disability of the applicant?
Luis López Guerra (Judge): Of course, I'm not asking for any details, but just some general information of the reason for the impairment of the applicant, which made him unable to work.
Guido Raimondi (JudgeP): Thank you very much. Judge Wojtyczek, please.
Krzysztof Wojtyczek (Judge): Thank you, Mr. President.
Krzysztof Wojtyczek (Judge): I have two questions, both to the government and to the applicant.
Krzysztof Wojtyczek (Judge): The first question is the following.
Krzysztof Wojtyczek (Judge): Was the applicant, after the withdrawal of her disability pension, eligible to receive any types of benefits or allowances under the Hungarian law?
Krzysztof Wojtyczek (Judge): Did the applicant apply for such benefits or no?
Krzysztof Wojtyczek (Judge): And the second question, I would like to know the exact amount of the disability pension which was granted, if I remember correctly, in 2001.
Krzysztof Wojtyczek (Judge): What was the amount at that time, and what was the amount of that disability pension at the time it was withdrawn?
Krzysztof Wojtyczek (Judge): Thank you.
Guido Raimondi (JudgeP): Thank you very much. Judge Lemmens, please.
Paul Lemmens (Judge): It's a bit of a question in line of what my colleague just asked, but a very precise question.
Paul Lemmens (Judge): When the pension allowance was withdrawn in 2010, did the applicant at that moment receive a rehabilitation allowance?
Paul Lemmens (Judge): Some uncertainty in the facts.
Paul Lemmens (Judge): I'm asking that because if she had received a rehabilitation allowance, which I understand is of a lower amount than the pension allowance, than a disability pension, then she might benefit from a transitional rule in the act of 2011.
Paul Lemmens (Judge): So a very precise question about the disability allowance, whether she received it or not.
Guido Raimondi (JudgeP): If there are no more questions, the court will now rise for 20 minutes.
Guido Raimondi (JudgeP): So we'll resume at 25 to 11, following which the parties will return for the second round of short pleadings to respond to submissions in the first round and to the questions put by the judges.
Guido Raimondi (JudgeP): Please be seated. The hearing is now resumed, and I call Mr. Cech.
AP1 (Applicant): first I would like to address the question put by Judge Nussberger regarding the domestic local remedies after the first jurisdiction in Hungary.
AP1 (Applicant): As you pointed out in the proceedings, according to the judgment of 2011 of the Nenet Hazal Labor Court, the withdrawal of the applicant's disability pension is the result of the change in the governing eligibility rules while her health status has remained unchanged.
AP1 (Applicant): The court held that the pension authorities had correctly applied the relevant law.
AP1 (Applicant): It follows that the only prospect for redressing the unfavorable judgment would have been a new assessment, finding the applicant's loss of capacity to work to be 50% or less.
AP1 (Applicant): However, there shall be neither record of evidences nor reconsideration of evidences in the procedure of review before the Supreme Court.
AP1 (Applicant): As the final judgment of the Nenet Hazal Labor Court was in compliance with the relevant legal provisions and no other expert opinion could have made, the courier could have adopted no other decision than upholding the final judgment according to the section 275 of the Civil Procedure Act.
AP1 (Applicant): Turning to the second question, why we complain under Article 1, it is well-certain case law of this court that the master of the case is of the court.
AP1 (Applicant): The applicant submitted the fact and complained about the loss and the denial of her benefit.
AP1 (Applicant): Since the court communicated the case and the complaint by raising the question whether there has been a violation of Article 1 of Protocol Number 1, we had to address this issue.
AP1 (Applicant): Turning to the question of Judge Lemons regarding the medical status of the applicant, we know actually that the applicant is suffering from permanent joint goods as much as she is unable to do even the housekeeping.
AP1 (Applicant): She is in a bad condition that the 250 kilometers traveling from her home to my office caused serious difficulties.
AP1 (Applicant): So we assume that her physical condition is poor.
AP1 (Applicant): As to the question of Judge Wojticek regarding the amount the applicant received, at the time of the withdrawal, her disability pension amounted to about 190 euros.
AP1 (Applicant): We don't have proper data here, but we assume that the amount of the disability pension when it was granted has to be lower since there is a yearly increase on the basis of the law.
AP1 (Applicant): As regards the second question, we will submit that after the withdrawal, she was not eligible for disability allowance because the competent authority in its discretion power did not find feasible her rehabilitation, therefore was not advised.
AP1 (Applicant): In this way, she didn't get any allowance.
AP1 (Applicant): And finally, sorry, maybe I addressed the question of Judge Lemons, but I think it was clear.
AP1 (Applicant): My answer is improper.
AP1 (Applicant): As to the question of Judge Guerrero of any other allowance of the applicant, we put forward that the only allowance she got, it was a housekeeping allowance of an amount of 12 euros by month given on an equitable basis by the municipal authority.
AP1 (Applicant): She does not have other income.
AP1 (Applicant): She has to rely on the support of her family, of course.
AP1 (Applicant): And finally, I have to address the issue that the government raised concerning the status of the applicant's health.
AP1 (Applicant): We haven't seen, and the government has never demonstrated a genuine medical report which would have clearly stated any fact of improvement in the applicant's health.
AP1 (Applicant): They only rely on the comparative schemes put forward in the memorandum as regards the loss of capacity to work and health deterioration.
AP1 (Applicant): But there is no legal base thereof in the domestic law.
AP1 (Applicant): Therefore, it cannot be assumed more than a speculation.
AP1 (Applicant): By contrast, the forensic medical expert report produced in the course of the first domestic litigation is a prima facie evidence of the fact that the applicant's health has not improved.
AP1 (Applicant): Moreover, it is the sole evidence purporting any statement of a medical expert on the state of health.
AP1 (Applicant): In the records of the medical checkups, only scores on the applicant's physical condition were made according to the DEN methodology, but no conclusion was drawn as to whether her health improved or worsened.
AP1 (Applicant): Here I emphasize again that there has been no improvement in her health since 2001.
AP1 (Applicant): Accordingly, the real cause of the withdrawal of her disability benefit cannot be other than the change in the assessment methodology.
AP1 (Applicant): As regards the legitimate expectation, the existence of the continued and recognized legitimate expectation is also well demonstrated by the ensuing periodic reviews.
AP1 (Applicant): The Hungarian government debate this conclusion by relying on the information provided by the competent authority, though no evidence thereof has been advanced.
AP1 (Applicant): And they argue that the reviews took place upon the applicant's request and not as a result of the authorities or expert orders.
AP1 (Applicant): Given the reality, this argument is not convincing.
AP1 (Applicant): The applicant's requests for review were not made on her own initiatives, but were the fulfillment of her obligation imposed by the authorities, namely the competent social security authorities.
AP1 (Applicant): Each time when the applicant's assessment took place, scheduled the next review.
AP1 (Applicant): The labor court in the course of the first proceeding also alluded in its judgment to the time of the next assessment.
AP1 (Applicant): These documents are in the case file.
AP1 (Applicant): To sum up, with regard to the applicant's unimproved health status, the government has interfered continuously with the rights to possession.
AP1 (Applicant): For this reason, we invite the court to hold that there has been a violation of Article 1 of Protocol Number of Convention.
Guido Raimondi (JudgeP): Thank you very much, Mr. Cech.
Guido Raimondi (JudgeP): Now I call Mr. Tallódi, please, you have the floor.
GR1 (Government): Thank you very much, Mr. President.
GR1 (Government): We tried to collect all the relevant information concerning the question of Mr. Schuyl,
GR1 (Government): who is the vice president of the court, Mrs. Nussberger, Lopez Guerra,
GR1 (Government): Vojticek, and Lemons judges, and I would like to ask my colleague to give you the information.
GR2 (Government): Thank you for the floor, Mr. President,
GR2 (Government): honorable member of the court.
GR2 (Government): I would like first to answer the question of Mr. Judge Shio.
GR2 (Government): The answer for the first question is that, yes, she would have been eligible for the entitlement had the new law not entered into force in 2012 from the date when her health status deteriorated, that is from October 2012.
GR2 (Government): To answer the other question, yes, the law had been modified in 2014 in a favorable way, so if someone had met the number of days covered by Social Security under the new, more lenient rule, yes, that person would have become definitely eligible.
GR2 (Government): But Mrs. Béla Né-Nagy could not meet the new rules either,
GR2 (Government): so she didn't, she hadn't become eligible under the new rules either.
GR2 (Government): To answer the questions put by Judge Nussberger, I would say that from 2012, contributions for allowances of persons with changed working capacity are paid to health insurance funds, whereas other contributions are paid to the pension insurance fund.
GR2 (Government): So, yes, there are two kind of funds now, and contributions for the age pension and the disability pension go into different funds now.
GR2 (Government): To answer the second question, I would say that, yes, if she would have been in receipt of the disability pension, she would have continued receiving this kind of pension, so it wouldn't have been transformed into an old age pension.
GR2 (Government): And to answer the third question, yes, now if she reaches the requisite age, Mrs. Béla Né-Nagy would be entitled to partial age pension
GR2 (Government): because she hadn't been working since 1997, so she could not meet the requisite insurance period for the full age pension, but only the partial.
GR2 (Government): But, yes, partly she would be entitled to that one.
GR2 (Government): To answer the questions of Judge Wojciech, yes, she also applied for other kinds of allowances.
GR2 (Government): She applied for a so-called regular social allowance, however it was denied because her health did not deteriorate when she was working, but after, and it was a precondition for this kind of allowance.
GR2 (Government): Now she is also in receipt of other kinds of allowances.
GR2 (Government): As far as the government knows, she now is in receipt of a certain kind of subsidy related to house maintenance.
GR2 (Government): And to answer the third question, the sum of the pension was 60,000 forints when it was withdrawn in 2010.
GR2 (Government): And to answer the very last question put by Judge Lemons, the government say that Mrs. Béla Né-Nagy
GR2 (Government): was never in receipt of a rehabilitation allowance, but in receipt of a disability pension, so the guarantee rules under the new law could not have been applied in her case.
GR2 (Government): But in any way, the government wish to repeat that even supposing the unlawfulness of the withdrawal back in 2010, the court is not allowed to examine this issue for the purposes of establishing the applicability under Article 1, Protocol Number 1, as this is exactly the issue the court has prevented from examining, even according to the court itself, as it was phrased in the disability decision relating to the proceedings back in 2010.
GR2 (Government): This is all that I wish to say.
GR2 (Government): I hope we could answer all of your questions.
GR2 (Government): Thank you.
Guido Raimondi (JudgeP): Mr. Tallódi, would you like to add something?
Guido Raimondi (JudgeP): Anything?
Guido Raimondi (JudgeP): No.
Guido Raimondi (JudgeP): So we have now come to the end of the hearing.
Guido Raimondi (JudgeP): I thank the parties for their interventions and answers to the court's questions.
Robert Spano (JudgeP): Good morning to all participants in this public hearing organized by the European Court of Human Rights with the use of video conferencing technology, which has been made necessary due to the COVID-19 health crisis.
Robert Spano (JudgeP): I wish to begin by thanking the applicant and the respondent government for their cooperation in preparing this hearing on the admissibility and merits in the case of Kurt versus Austria, which I now declare open.
Robert Spano (JudgeP): It will be available to the public on the court's website tomorrow, Thursday, June 18.
Robert Spano (JudgeP): The application in this case was lodged with the court on 16 December 2015 under Article 34 of the convention by an Austrian national, Miss Senay Kurt.
Robert Spano (JudgeP): It was allocated to the fifth section of the court pursuant to Rule 52, paragraph 1 of the rules of court.
Robert Spano (JudgeP): It was communicated to the government on 30 March 2017.
Robert Spano (JudgeP): On 4 July 2019, a chamber of the fifth section delivered its judgment in the case.
Robert Spano (JudgeP): It declared unanimously the application admissible and held also unanimously that there had been no violation of Article 2 of the convention.
Robert Spano (JudgeP): On 27 September 2019, the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the convention.
Robert Spano (JudgeP): And a panel of the Grand Chamber accepted the request on 4 November 2019.
Robert Spano (JudgeP): Leave to intervene under Article 36, paragraph 2 of the convention and Rule 44, paragraph 3 of the rules of court was granted to "GREVIO", group of experts on action against violence against women and domestic violence, Women Against Violence Europe, "WAVE", Women in Network Against Violence, "Donne in Rete Contro la Violenza", Association of Autonomous Austrian Women's Shelters, "Verein Autonome Österreichische Frauenhäuser", European Human Rights Advocacy Center, "ERAC" and Equality Now, jointly, Federal Association of the Austrian Centers for Protection from Violence, "Bundesverband der Gewaltschutzzentren Österreichs", and women's petition for a referendum 2.0,
Robert Spano (JudgeP): "Frauenvolksbegehren 2.0".
Robert Spano (JudgeP): The government are represented by their agent, Ambassador Helmut Tichy from the Federal Ministry for European and International Affairs, assisted by Miss Brigitte Ohms, Deputy Government Agent, Federal Chancellery, as well as by Mr. Klaus Famira,
Robert Spano (JudgeP): Miss Elizabeta Samoilova, Mr. Ulrich Pesendorfer,
Robert Spano (JudgeP): Miss Andrea Rohner, Mr. Peter Andre,
Robert Spano (JudgeP): and Mr. Walter Dillinger, advisors.
Robert Spano (JudgeP): The applicant is represented by Miss Sonja Aziz, Council, assisted by Miss Christine Kolbitsch, Council.
Robert Spano (JudgeP): Having consulted the agent of the government and the representative of the applicant, I have determined the order of addresses as follows.
Robert Spano (JudgeP): Mr. Tichy for the government will speak first
Robert Spano (JudgeP): for 30 minutes, and then Miss Aziz for the applicant for the same amount of time.
Robert Spano (JudgeP): So we now proceed with the government.
Robert Spano (JudgeP): I call Mr. Tichy.
Robert Spano (JudgeP): Please, Mr. Tichy, you have the floor.
GR3 (Government): President, distinguished members of the court, I have the honor to present the position of the Austrian government on the compatibility with Article 2 of the Convention of the Austrian authorities' handling of a case of domestic violence.
GR3 (Government): At the very beginning, I would like to express our sincere sympathy to the applicant and her family, especially her daughter.
GR3 (Government): The tragic events of 2012 are deeply disturbing.
GR3 (Government): The applicant's suffering has been taken very seriously by the Austrian authorities.
GR3 (Government): And if we discuss now the legal aspects of this tragedy, this should not be regarded as demeaning the suffering of the victims.
GR3 (Government): The Austrian legal framework on combating domestic violence follows a multi-institutional approach.
GR3 (Government): The aim is to optimize the coordination between police authorities, family courts, the penal system, youth welfare agencies, and the protection centers for the benefit of the victims.
GR3 (Government): This coordination between state agencies and the private protection centers avoids possible gaps in the protection of victims.
GR3 (Government): The message of our legal framework is clear, acts of violence committed in the domestic sphere are not a private affair, but a public issue of general concern.
GR3 (Government): We shall come back to the details of the legal framework in Austria in our replies to the questions of the court.
GR3 (Government): In Austria, a wide range of state aid and state funded support is offered proactively to victims of domestic violence.
GR3 (Government): The private protection centers mandated to protect and assist victims of domestic violence play a key role in the Austrian prevention system, as they act as hubs for all relevant institutions, such as police, courts, youth welfare services, and women's shelters.
GR3 (Government): Police and the public prosecution have to inform these centers without delay about every case of domestic violence.
GR3 (Government): Thereupon, the centers contact the victim to offer information and practical assistance, such as a current risk assessment and a safety plan.
GR3 (Government): In addition, they provide psychosocial care and support, as well as legal advice.
GR3 (Government): Where possible, the mandated center provides an expert with the same cultural background as the victim, or at least an expert and an assistant interpreter.
GR3 (Government): Gravio, the group of experts on action against violence and against women and domestic violence of the Council of Europe, welcomed in its baseline study of 2017 Austria's long history of policymaking in the area of violence against women.
GR3 (Government): In particular, the strong leadership Austria has shown in the past 20 years in introducing a system of emergency barring and protection orders for victims of domestic violence.
GR3 (Government): Gravio concluded, today, this system is well-established and is widely considered a success.
GR3 (Government): Gravio referred to the strong focus of the Austrian political support and funding on domestic violence and mentioned, I quote, the well-established support services for victims of domestic violence, which serve as respected partners for the law enforcement agencies, unquote.
GR3 (Government): And that cooperation between government entities and domestic violence services is fully institutionalized and placed on a legal basis.
GR3 (Government): Unmet needs, according to Gravio, mainly concerned the situation of children witnesses of domestic violence, the budget of 5 million euro for the policy agenda, and the low conviction rate due to the frequent use of diversionary measures in domestic violence cases.
GR3 (Government): All this shows that the main features of the system of protection against violence have proven to be effective.
GR3 (Government): Statistical data and evaluations, such as an academic study of 2012, periodic roundtables, and a task force in 2018, 2019, came to the conclusion that eviction and barring orders, as well as temporary restraining orders and temporary injunctions, together with interventions of the protection centers, have successfully prevented a higher number of massive violations.
GR3 (Government): The following statistics illustrate the developments.
GR3 (Government): Between 2015 and 2019, 41,314 barring orders were issued by the police and 12,018 temporary restraining orders and temporary injunctions by the district courts.
GR3 (Government): Nevertheless, a high percentage of violent crimes in Austria is still attributed to acts of domestic violence.
GR3 (Government): In the same period, between 2015 and 2019, 156 femicides were committed, which is totally unacceptable and a matter of grave concern for the Austrian government and the public.
GR3 (Government): Therefore, one of the priorities in the government's program of January 2020 aims at combating domestic violence.
GR3 (Government): The program provides for a needs-based expansion of women's counseling and protection centers, as well as for a new national action plan against domestic violence.
GR3 (Government): The government is also committed to increasing substantially the specific budget, in particular for women's shelters and counseling.
GR3 (Government): President, distinguished members of the court, in 2012, at the time of the tragic events, an ex officio police barring order could only prohibit entry to the joint residence, including adjacent areas, but not to a school.
GR3 (Government): However, in the present case, the applicant had a series of options.
GR3 (Government): She received counseling and was accompanied by a female legal expert of her own cultural background from the local protection center, with whom she had been in regular contact since 2010.
GR3 (Government): We know that the dynamics of leaving an abusive relationship are very complex.
GR3 (Government): Women who want to leave this vicious circle often undergo a long process.
GR3 (Government): However, we must assume that the applicant had quite some time to reflect and to consider all possible options.
GR3 (Government): Due to the counseling service, she knew of her possibility to file a request with the district court for a restraining order, also for the school premises of her children.
GR3 (Government): In the morning of the 22nd of May, 2012, when filing for divorce at the district court, she could also have filed a request for an injunction covering her children's school.
GR3 (Government): An additional option offered by the Enforcement Act.
GR3 (Government): In the afternoon of the same day, when she reported to the police and the police barring order relating to the marital home was issued, she received a leaflet with the information that as a victim of violence, she could also file a request for an injunction with the district court.
GR3 (Government): Such an injunction could have prohibited her husband from entering not only the marital residence and the parents' apartment, but also the children's school and other venues.