TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): But nowhere in the refusal from the alien authorities nor from the Ministry of Refugees, it is explicitly pointed out, well, you have to wait to 2005.
AP1 (Applicant): Then you fulfill 12 years, and then you can be reunited in Denmark.
AP1 (Applicant): It's not the worthing of the refusal from the ministry.
AP1 (Applicant): So the reason why they have not reapplied is that, according to their conception, they had to wait, in fact, 28 years to 2030.
AP1 (Applicant): And you have to bear in mind that when they moved to Sweden, Mr. Bjau has to give up his apartment in Denmark.
AP1 (Applicant): He had an apartment in Nistved where he worked.
AP1 (Applicant): But he was forced to move with her, too.
AP1 (Applicant): So in 2030, Mr. Bjau will be 59 years old.
AP1 (Applicant): His wife will be 51 years old.
AP1 (Applicant): And the son will be 26 years old.
AP1 (Applicant): Perhaps at that moment, they can apply again.
AP1 (Applicant): But if it's going to be a success, nobody knows the answer, so to speak, is blowing in the wind.
AP1 (Applicant): So there's no reason for disputing again.
AP1 (Applicant): As the court can see, we have two different opinions about that.
AP1 (Applicant): But I want to emphasize one thing, and that is that the fact that the rule is made like a form of Lex Danish expatriates, that's how I see it.
AP1 (Applicant): But we can't see anything about how much it was.
AP1 (Applicant): I want to draw the court's attention to Exhibit 2, which is the statistics in the government statement this year.
AP1 (Applicant): Here you can see on the last page how many uncertainties there are to these statistics.
AP1 (Applicant): And in my view, I think when a government claims there's no violations of Article 14 taken in conjunction with Article 8, you have to have all the papers in order.
AP1 (Applicant): And to this day, I cannot understand.
AP1 (Applicant): I've had this case since 2006 in the High Court.
AP1 (Applicant): I cannot understand why it is not possible for the government to specify or to be as detailed as the English government, for example, was in the Abdel Rassous case, paragraph 38, statistics.
AP1 (Applicant): So I think this court can see it as a fact that no one told the applicants about the 12-year possibility or an earlier possibility.
AP1 (Applicant): And that's also confirmed in the two exhibits in the file, where the Danish Ombudsman severely criticized the information on the website, New in Denmark, severely criticized the administrative practice, severely criticized that the EU law has not, so to speak, mirrored in the administrative practice.
AP1 (Applicant): So I hope that answers the questions.
AP1 (Applicant): Thanks.
Dean Spielmann (JudgeP): Mr. Bering Liisberg, please.
GR1 (Government): If I may, let me first reply to the comments made just now by the applicant's counsel.
GR1 (Government): First, it was alleged that Mr. and Mrs. Biao
GR1 (Government): were forced by Denmark to move to Sweden.
GR1 (Government): I emphasize this is not the case.
GR1 (Government): This couple had the possibility to move to Sweden and be reunified there as a family, thanks to EU free movement law.
GR1 (Government): There was no forcing of the couple to Sweden or any other country.
GR1 (Government): There were certainly alternatives, as was laid down by the Danish authorities.
GR1 (Government): It was assessed at that time that the couple's aggregate ties to Ghana was bigger than to Denmark.
GR1 (Government): And it was perfectly possible for the couple also to move to a third country, such as Ghana.
GR1 (Government): Second, I would also like to reply to the comment made that the applicants were not informed of the 12-year practice that some of the members of the court asked some questions about.
GR1 (Government): Now, we have been frantically trying to see if we had an English translation of the entire Supreme Court judgment.
GR1 (Government): And it seems that we have not submitted such a full translation.
GR1 (Government): But in the statement of facts in the official gazette of Danish law reports on page 1,039 and onwards, the entire decision, the entire administrative decision of 2004 is reproduced.
GR1 (Government): And there is a paragraph which says, and I'm translating here in an unofficial way, in practice, as a point of departure, it is required that the residence in Denmark must amount to approximately 12 years, provided that the person has also made an effort to become integrated, which is exactly applicable, or would have been applicable, to the situation of Mr. Biao
GR1 (Government): if he had stayed in Denmark.
GR1 (Government): Now, why was this piece of information, this practice, not communicated to Mr. Biao before?
GR1 (Government): The reason is simply that this practice of 12 years, or approximately 12 years, of residence in Denmark was established only in 2003.
GR1 (Government): That is after the first administrative decision of the Immigration Authority.
GR1 (Government): Now, that leads me to the question posed by Judge Kjellbrug.
GR1 (Government): The first question to the government relates to exactly this question of the administrative practice.
GR1 (Government): Yes, it is correct that the Danish parliamentary ombudsman criticized, in two instances, insufficient public availability of information about the practice of the immigration authorities.
GR1 (Government): In the first case, in 2005, it did, in fact, relate to the 12 years practice rule.
GR1 (Government): And in the second case, in 2008, which the applicants have also referred to, it did not relate to the attachment requirements, even less to the 28-year rules, but entirely to EU law after the METOC ruling.
GR1 (Government): We have since developed the website and the public information.
GR1 (Government): And I think for the purposes of deciding this case on the facts of it, what is important is to note that the applicant was indeed informed about the 12-year practice in the final administrative decision of August 2004.
GR1 (Government): We will, with the permission of the court, gladly provide a full translation and official translation of the Supreme Court decision in which the administrative decision is reproduced in its entirety.
GR1 (Government): Second, in relation to the administrative practice, Judge Turkovich asked the question whether the fact that Mr. Biao lives in Sweden
GR1 (Government): and works in Denmark would count in a positive way towards accomplishing the 12-year residence practice.
GR1 (Government): It wouldn't because it's based on residence, not work.
GR1 (Government): But I think more importantly, it is not even applicable, the 12-year practice rule, in the case of Mr. Biao,
GR1 (Government): if he were to reapply, because the EU rules would at that point have primacy and would be applied and would lead to the result which I explained in my initial oral submission, that he would be granted resident right also to his third country national spouse in Denmark on the basis of EU law.
GR1 (Government): That brings me to the question which Judge Kirbel raised, the hypothetical question, what would be the likely consequences that the government of Denmark would draw if the court were to find that there had been a violation, that the 28-year exception rule constitutes a violation of Article 14 in conjunction with Article 8?
GR1 (Government): It is correct that in my submission, I referred to the hypothetical that if you were to reach that decision, it would benefit no one if the conclusion would be that the exception rule was repealed.
GR1 (Government): Now, I have no possibility to answer the question on what political consequences would be drawn from a finding of violation.
GR1 (Government): But one consequence, as I stated in my submission, could be the repealing of this preferential treatment to expatriate Danes.
GR1 (Government): Certainly, other possibilities could also be envisaged.
GR1 (Government): And I guess it would also depend to some extent on the reasoning of the court and to what extent the court would revise or even annul its previous case law.
GR1 (Government): On top of that, we are having elections later this year, which makes it even more difficult for me to give you an estimate of how the next government would react and what a parliament majority would find appropriate.
GR1 (Government): What I can say is that, of course, the government of Denmark would respect the decision of the court.
GR1 (Government): That is beyond question.
GR1 (Government): Now, Judge Pinto and Judge Motok raised questions about criticism of Danish immigration policy from also other instances than this court, that is, the UN bodies and the Commissioner for Human Rights.
GR1 (Government): It is true that the Danish immigration rules introduced from 2000, 2002, 2003, and onwards have been subject to a lot of scrutiny by international partners and bodies.
GR1 (Government): We have engaged in a very constructive dialogue with all of these bodies and commissioners and others.
GR1 (Government): Sometimes they have expressed opinions on the nature and quality of Danish immigration legislation, which we do not agree with.
GR1 (Government): Sometimes they have led to further reconsideration, and some of the policy measures have been amended throughout this period of 10 years, even the 28-year rule has been reduced to a 26-year rule because of a change of government.
GR1 (Government): What I would say is that this is about political choice to a very wide extent.
GR1 (Government): We take seriously all the comments we get.
GR1 (Government): Some of them are based on law.
GR1 (Government): Some of them are based on more political considerations.
GR1 (Government): And many of the criticisms raised, most of them, in fact, do not relate to the 28-year exception rule.
GR1 (Government): It is true that the Commissioner for Human Rights of the Council of Europe did criticize the 28-year rule.
GR1 (Government): We believe his assumptions were wrong, namely that you could only become reunified with your spouse if you were a naturalized Danish citizen if you reached the age of 56, which I have tried to explain is not a correct understanding of the Danish law.
GR1 (Government): We have received criticism on many other elements of the Danish immigration law, but they are not at issue before the court today.
GR1 (Government): The attachment requirement is one.
GR1 (Government): The so-called 24-years rule is another.
GR1 (Government): They work in combination.
GR1 (Government): And it is true, as Judge Motok drew our attention to, that the underlying purpose of these rules, the attachment requirement and the 24-year rules, which are not the subject of our case today, were aimed at trying to avoid immigration problems, integration problems, and trying to avoid a practice or prevent a practice seen in certain immigrant communities in Denmark of forced marriages, sham marriages, or covertly forced marriages through the use of arrangements.
GR1 (Government): Now, I'm afraid I have not been able to produce statistics on this issue, which in itself is not so relevant for this case, I submit, because the 28-year rule is what we have to look at today.
GR1 (Government): And that was never reasoned with any reference to sham marriages or forced marriages or other practices we were trying to avoid.
GR1 (Government): I'm told by my colleagues that it is very rare, but it happens, that applications for family or spousal reunification are denied because authorities find that it is an instance of a sham marriage or a forced marriage.
GR1 (Government): But the fact that these instances are few, I don't think is proof that our rules don't work.
GR1 (Government): On the contrary, perhaps, that in fact, the general requirement of closer ties to Denmark, aggregate ties for the couple, and the requirement that only normally persons of 24 years or above that age can have a spousal reunification in Denmark serve their purpose.
GR1 (Government): At least that is why the political consensus, almost consensus in Denmark, is that these rules are fair and should stay in place.
GR1 (Government): I hope I have answered the questions to the court's satisfaction.
GR1 (Government): Thank you, Your Honor.
Robert Spano (JudgeP): Good morning to all participants in the 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 applicants and the respondent government for their cooperation in preparing this hearing on the remerits in the case of Khasanov and Rakhmanov versus Russia which I now declare open.
Robert Spano (JudgeP): It will be available to the public on the court's website from 1430 this afternoon.
Robert Spano (JudgeP): The applications were lodged with the court on 15 June and 11 October 2015 under Article 34 of the Convention by two Kyrgyz nationals, Mr. Turdivai Urumbayevich Khasanov and Mr.
Robert Spano (JudgeP): Shavgatbek Zalizhanovich Rakhmanov.
Robert Spano (JudgeP): The applications were allocated to the third section of the court pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Robert Spano (JudgeP): On 15 October 2019, the Chamber of the third section unanimously declared the applications admissible and held by five votes to two that there will be no violation of Article 3 of the Convention in the event of the applicant's extradition to Kyrgyzstan.
Robert Spano (JudgeP): On 7 February 2020, the applicants 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 that request on 15 April 2020.
Robert Spano (JudgeP): The government are represented by their agent, Mr. Mikhail Galperin, representative of the
Robert Spano (JudgeP): Russian Federation at the European Court of Human Rights, assisted by Mr. Pavel Smirnov,
Robert Spano (JudgeP): Ms. Olga Ocheretyanaya, Ms. Zlata Bereza, Mr. Sergey Grigorenko, Mr. Sergey Klykovskiy, Ms.
Robert Spano (JudgeP): Olga Zinchenko, and Ms. Kamila Dzhabbarova, advisors.
Robert Spano (JudgeP): The applicants are represented by Ms. Nadezhda Yermolayeva and Mr. Kirill Zharinov, counsel.
Robert Spano (JudgeP): I welcome the representatives of the parties in the name of the Court.
Robert Spano (JudgeP): Having consulted the agent of the government and the representatives of the applicants, I have determined the order of addresses as follows.
Robert Spano (JudgeP): Mr. Zharinov and Ms. Yermolayeva for the applicants will speak first, and then Mr. Galperin for
Robert Spano (JudgeP): the government.
Robert Spano (JudgeP): Mr. Zharinov, you have the floor.
AP2 (Applicant): Mr. President, Honorable Judges,
AP2 (Applicant): with your permission, I will now address the current situation in Kyrgyzstan concerning risks of ill-treatment for ethnic Uzbeks under criminal prosecution.
AP2 (Applicant): My colleague, Ms. Nadezhda Yermolaeva, will continue and cover the individual circumstances
AP2 (Applicant): of the applicants and their assessment by the Russian authorities.
AP2 (Applicant): She will also show that the diplomatic monitoring mechanism is ineffective.
AP2 (Applicant): In our written submissions to the Grand Chamber, we have already given an extensive overview of various materials on Kyrgyzstan from independent and reliable sources.
AP2 (Applicant): We have demonstrated that ethnic Uzbeks are systematically discriminated, persecuted, and subjected to ill-treatment.
AP2 (Applicant): The existing mechanisms of protection against torture in Kyrgyzstan, including the National Preventive Mechanism, or the NPM, created in 2012, unfortunately remain ineffective.
AP2 (Applicant): The respondent government contested our conclusions, claiming that the situation in Kyrgyzstan has significantly improved in the recent years.
AP2 (Applicant): The government put forward a number of arguments and cited a range of sources.
AP2 (Applicant): However, at a closer look, it turns out that they presented no convincing evidence.
AP2 (Applicant): In fact, the government cited the international reports selectively, referred to the information provided by Kyrgyzstan itself instead of independent observers, or made statements not supported by any statistics at all.
AP2 (Applicant): Speaking about the selectivity of the quotations provided by the government, I would like to give just one of the examples.
AP2 (Applicant): The Russian authorities referred to the public statement of Amnesty International made in 2020, which, I quote, welcomed Kyrgyzstan's cooperation with the Universal Periodic Review and its acceptance of 193 out of 232 recommendations, including recommendations on eradicating torture and ill-treatment.
AP2 (Applicant): Full stop.
AP2 (Applicant): However, the government failed to cite the following passage from the same statement.
AP2 (Applicant): I quote, we regret that recommendations to set up an independent body to investigate torture and other ill-treatment were merely noted.
AP2 (Applicant): Finally we urge the Kyrgyzstan authorities to follow through with the implementation of recommendations from the previous cycle of its UPR to carry out full and impartial investigations into human rights violations that occurred during the June 2010 ethnic violence, with special attention to allegations made by members of the Uzbek minority.
AP2 (Applicant): And in its report for the cycle of the UPR of 2020, Amnesty International expressed its disappointment that, I quote, Kyrgyzstan rejected recommendations to adapt recruitment guidelines for the police and the security forces to increase the representation of ethnic minorities and to adopt comprehensive anti-discrimination legislation.
AP2 (Applicant): Moving further, the government largely relied on the reports of the working group on the UPR for Kyrgyzstan of 2015 and 2020.
AP2 (Applicant): The UPR, I mean the Universal Periodic Review.
AP2 (Applicant): At the first sight, the citations made by the government contain a lot of information on positive changes, even an alleged decrease in reported cases of torture and ill-treatment.
AP2 (Applicant): But a careful study of the quoted reports reveals the following.
AP2 (Applicant): All the extracts cited were derived not from the conclusions of any independent observers.
AP2 (Applicant): But they were taken directly from the UPR itself.
AP2 (Applicant): We strongly doubt that any serious weight could be given to such statements in view of independent information to the contrary.
AP2 (Applicant): It is also important that some of the arguments of the Russian government are not accompanied by any statistics or evidence at all.
AP2 (Applicant): For instance, in their submissions, the government mentioned the Kyrgyzstan Ombudsman Office.
AP2 (Applicant): They emphasized that it was tasked with receiving complaints of ill-treatment.
AP2 (Applicant): But no statistics was provided, even on the number of such complaints.
AP2 (Applicant): We also haven't managed to find such information.
AP2 (Applicant): Moreover, there is no official statistics even on the number of complaints of any kind received by the Ombudsman in the last few years.
AP2 (Applicant): Further, the government brought the attention to the establishment of a special monitoring center in 2014 aimed at preventing the recurrence of the ethnic conflict.
AP2 (Applicant): However, the only achievement of this center in the last six years, which the government was able to find, is, I quote, working on a digital map of sites of potential ethnic conflicts.
AP2 (Applicant): To be fair, there are some examples where the assumptions of the Russian government are indeed accompanied by precise statistics.
AP2 (Applicant): For instance, the government sought to prove the effectiveness of the national preventive mechanism created in Kyrgyzstan in 2012.
AP2 (Applicant): They highlighted that by 2018, it had conducted over 4,000 visits to places of detention.
AP2 (Applicant): Definitely, that is quite an impressive number.
AP2 (Applicant): However, does it in any way prove the effectiveness of the NPM?
AP2 (Applicant): How many complaints of ill-treatment did the NPM receive during all these visits?
AP2 (Applicant): How many perpetrators were brought to liability?
AP2 (Applicant): How many victims got redress?
AP2 (Applicant): The Russian government did not answer these questions.
AP2 (Applicant): Neither did the government describe what happened to the NPM after 2018.
AP2 (Applicant): Why is it so?
AP2 (Applicant): Maybe because in most recent years, the NPM has been paralyzed and unable to exercise its most important functions.
AP2 (Applicant): And that's not just our conclusions.
AP2 (Applicant): I am quoting the latest reports of the United Nations Subcommittee on the Prevention of Torture and even the reports of the NPM itself.
AP2 (Applicant): Moreover, in 2020, the NPM even lacked money for visits as its bank account was frozen a year before.
AP2 (Applicant): It follows from the international reports that the Kyrgyzstani legislature simply lacks interest in the NPM and the NPM itself misunderstands its function.
AP2 (Applicant): Further, I will continue speaking about some other statistics provided by the government.
AP2 (Applicant): In particular, they submitted that there is no widespread ethnic bias in the Kyrgyzstani law enforcement system.
AP2 (Applicant): According to the government, it is demonstrated by, I quote, many examples.
AP2 (Applicant): After such an ambitious statement, the government managed to refer to only three cases.
AP2 (Applicant): In these cases, the ethnic Uzbeks extradited to Kyrgyzstan were either released on parole or granted amnesty, or even their criminal prosecution was discontinued.
AP2 (Applicant): But firstly, it is clear that such statistics is not very representative.
AP2 (Applicant): Secondly, and most importantly, this information has nothing to do with the assessment of the risks of ill treatment.
AP2 (Applicant): A person of Uzbek origin may be ill treated immediately after a forced return and afterwards, for some reason, released on parole.
AP2 (Applicant): And this is exactly what happened in one of the cases now pending before the court, namely KK versus Russia.
AP2 (Applicant): To sum up, the government failed to provide any credible evidence that ethnic Uzbeks are no more at risk of ill treatment in Kyrgyzstan.
AP2 (Applicant): And it is explained by a simple fact, there is just no such information at all.
AP2 (Applicant): Unfortunately, the Kyrgyzstani authorities do not do their best to improve the situation.
AP2 (Applicant): One of the most striking examples of their unwillingness to stop torture is the case of Mr. Azimzhon Askarov.
AP2 (Applicant): He was a prominent human rights defender convicted to life imprisonment.
AP2 (Applicant): The National Preventive Mechanism failed to protect Mr. Askarov to ensure his release
AP2 (Applicant): or even to monitor his situation.
AP2 (Applicant): In 2016, the UN Human Rights Committee found that his right not to be subjected to torture was violated and recommended his immediate release.
AP2 (Applicant): The Kyrgyzstani authorities ignored the recommendations.
AP2 (Applicant): They also ignored numerous reports about the decline of Mr. Askarov's health.
AP2 (Applicant): Eventually, in July 2020, Mr. Askarov died in prison.
AP2 (Applicant): His conviction and death were acknowledged to be the results of a flagrant violation of his rights.
AP2 (Applicant): However, in 2020, the Supreme Court of Kyrgyzstan upheld Mr. Askarov's sentence despite the
AP2 (Applicant): evidence of torture.
AP2 (Applicant): The Supreme Court held that all Mr. Askarov's claims were refuted by the evidence of his
AP2 (Applicant): guilt.
AP2 (Applicant): Therefore, the highest judicial authority of Kyrgyzstan, in fact, gave a carte blanche to the law enforcers.
AP2 (Applicant): It showed that a conviction clearly based on acts of torture remains acceptable in the legal system of Kyrgyzstan.
AP2 (Applicant): And just a week ago, Human Rights Watch, in their latest report of 2021, described the situation in Kyrgyzstan in the following way.
AP2 (Applicant): Impunity for torture and ill-treatment remains the norm.