TrustHLT/LaCour huggingface dataset:
GR1 (Government): that his denial should be replaced. And in the operative part of the submission by the applicants,
GR1 (Government): they are dealing with different objects. There they ask for the
GR1 (Government): approval to the adoption agreement and to state at the same time that the family law relations between the biological father and the second applicant and the family members of the second applicant should not extinguish. So it's not, it's not, this operative part is not dealing
GR1 (Government): with the replacement of the consent of the biological father at all.
GR1 (Government): Now I want to turn to the questions of Judge Potocki. In our view, the sexual orientation
GR1 (Government): was not relevant at all in this case insofar as we are dealing with a single-parent adoption where the precondition, the consent of the biological father, was not met.
GR1 (Government): If the biological father had given his consent, the adoption would not have been possible but not on the grounds of sexual orientation. Also, as I have indicated earlier this morning,
GR1 (Government): any man, like a possible new male partner of the mother or another male relative, would not have been in a position to adopt the child as long as the father did not consent.
GR1 (Government): So let me turn to the next question. Whether it is impossible for the applicants or for same-sex
GR1 (Government): couples to adopt together. Austrian law allows the joint adoption only for married partners.
GR1 (Government): Only married partners can adopt jointly. But this is not the situation of our present applicants.
GR1 (Government): We are dealing now with the adoption by a single person. And there we are once again at this
GR1 (Government): precondition of the consent of the father. Here I want to mention that the Partnership Act of
GR1 (Government): 2010, which explicitly prohibits the adoption by same-sex partners, is not applicable for the present case because the last national judgment was given in 2006. So we have to look at the
GR1 (Government): legal situation at that time. That's relevant. And for us, it's also very important when looking
GR1 (Government): or when making the proportionality test that there is no European standard at all. And we are
GR1 (Government): of the opinion with respect to the rich variety of solution within the European countries, that our solution is also proportional in this sense. Thank you.
Nicolas Bratza (JudgeP): And then I give the floor to Mr. Graupner.
AP1 (Applicant): the applicants before the national courts have applied for a replacement of the consent of the father.
AP1 (Applicant): And the representative of the Austrian government has quoted from our application.
AP1 (Applicant): If we are saying to the court the consent of the father should be replaced, what else is it in an application?
AP1 (Applicant): We have said to the court what we want.
AP1 (Applicant): And it has to be noted that, as in many member states, I guess, under Austrian law, family law proceedings on these issues are not as formal proceedings as civil proceedings general.
AP1 (Applicant): This is a very informal proceeding where the law, the statutes, Austrian statutes, even state explicitly that no motion, no application, no income from any party should be rejected on any unjustified formal grounds.
AP1 (Applicant): That is what exactly the government wants to argue.
AP1 (Applicant): What my client said were that the refusal of the father should be replaced as it is not justified, as he had seriously acted against the best interests of the child.
AP1 (Applicant): That was in our application to the district court.
AP1 (Applicant): And B, that the interests of the child in the adoption supersedes his interest in objecting to it.
AP1 (Applicant): So these are valuable, and it has not been contested grounds for replacement of consent under Austrian, under national law.
AP1 (Applicant): So according to national law, Article 181 of the General Civil Code, the district court would have had to start an inquiry, of course, and deliver a decision on whether the consent be replaced or not.
AP1 (Applicant): I have cited that in paragraphs 41, 42 of my written submissions to the Grand Chamber, that there is Supreme Court case law in Austria on this issue, that in such proceedings, the court has to give and render a separate decision on replacement of consent.
AP1 (Applicant): No Austrian court has ever given such a separate decision.
AP1 (Applicant): I have submitted this Supreme Court decision with the written observations.
AP1 (Applicant): The Supreme Court says it can be combined in one document, but nevertheless, it has to be two separate decisions issued on replacement of consent and granting of adoption.
AP1 (Applicant): What did the Austrian courts do?
AP1 (Applicant): They said, no.
AP1 (Applicant): Dear women and their son, we cannot grant your adoption in any case, because you are two females.
AP1 (Applicant): We are not looking into whether this adoption is of best interest for your child.
AP1 (Applicant): We do not look in whether the refusal of the father is justified or not.
AP1 (Applicant): You are of the same sex, and that's the reason why we are rejecting.
AP1 (Applicant): No court, there were three instances, no court of any instance ever dismissed the approval of the adoption on the basis which argues the Austrian government, namely that there were not any formal requirements met or that there were no application for a replacement of consent of the father.
AP1 (Applicant): As the question was specifically to the regional court decision, I would like to say a little bit to it.
AP1 (Applicant): The regional court, court of second instance, starts its decision with a discussion if the child would have needed a special guardian for the court's adoption procedure.
AP1 (Applicant): The appeals court concludes, I quote in my translation, we need not discuss this issue further, as this court takes the view that, as outlined below, the adoption in the present case has to be refused without further investigations that's a literal quote, without further investigations anyway, as the first instance courts did, so that a possible deficiency in lawful representation of the child is not decisive. Page 9. So it was not even necessary that the child
AP1 (Applicant): be lawfully represented in the proceedings. A representation we have to take into
AP1 (Applicant): mind, which should guarantee the best interests of the child, because establishing a guardian, a special guardian, is, of course, a measure in the best interest of the child to be adequately represented in the proceedings, not necessary, just because there are two women. And so there was no look into replacement
AP1 (Applicant): of the father's consent. And the court goes on saying, and I quote,
AP1 (Applicant): that a child, positive development, needs relations to a female and a male attachment figure. Please keep in mind, they are not saying
AP1 (Applicant): a child needs relations to his or her father and mother.
AP1 (Applicant): They are saying to a male and a female attachment figure.
AP1 (Applicant): They are saying, I quote, in opposite-sex couples, in step-parent adoption, the child, on page 13, the child keeps two parents and thus attachment figures of different sex, in heterosexual step-parent adoption.
AP1 (Applicant): This situation, literally quote, which is so important, is not just a case of separation, literally quote, which is substantial for the child's development, however, could not be created by the adoption by the same-sex partner of a parent.
AP1 (Applicant): So the only issue was that they both are of the same sex and nothing else. The child
AP1 (Applicant): the court says literally, the child should just be enabled to develop with constant contact with a male and a male parent. Please note, the court does not speak and
AP1 (Applicant): say to develop with constant contact with his female and his male parent.
AP1 (Applicant): They are saying with a female and a male parent. So the issue for the regional
AP1 (Applicant): court was that there is a male and a female, not necessarily the biological parents. It can be adoptive parents. It can be foster parents, both not biological
AP1 (Applicant): parents. But the basic principle should be one man, one woman. And that's not connected
AP1 (Applicant): to the best interest of the child. That's just ideology. So the issue for also for
AP1 (Applicant): the appeals court never was the consent of the father and that the legal requirements for its replacement were not fulfilled. It was exclusively based on this decision
AP1 (Applicant): that the child needs a female and a male attachment figure, not the biological parents, not mother and father, male and female attachment figures. And the Supreme
AP1 (Applicant): Court in the court of last instance confirmed that, as I have cited it before, when the court said, given the legal impossibility of adoption, it's not necessary to have a male and a female attachment figure. So the Supreme Court confirmed
AP1 (Applicant): we are not looking into whether replacement of consent of the father and the adoption is in the best interest of the child because it's impossible based on the sex of the partners of the parents, biological parent and step-parent, and not in any way connected this refusal to go into that question on formal grounds or any other issues presented in the court.
AP1 (Applicant): The issue is that my clients have been refused an inquiry and a decision on the merits. And the merits are whether it is in the best interest of the child that
AP1 (Applicant): the adoption be granted. And the issue and the violation of human rights is not that
AP1 (Applicant): the adoption has not been granted, as the government wants to put it. The issue
AP1 (Applicant): and the human rights violation is that there was no inquiry into the merits, into the best interest. It can be that the courts could have come to the conclusion,
AP1 (Applicant): no, consent of the father should not be replaced. It's not in the best interest.
AP1 (Applicant): Like in heterosexual step-parent families, totally okay, no discrimination on sexual orientation, no discrimination on sex. But this inquiry has not been
AP1 (Applicant): made. And there is European standard. I contest it. There is European standard.
AP1 (Applicant): We have an overwhelming consensus of 42 member states. We have a European standard.
AP1 (Applicant): Make no difference on basis of sex and sexual orientation. Make no difference
AP1 (Applicant): between unmarried heterosexual couples and unmarried homosexual couples when it comes to step-parent adoption. That share 42 member states. If this is not European
AP1 (Applicant): standard, we don't have European standard in any case. Because 100 percent you may
AP1 (Applicant): have in Northern Korea, but not in a pluralistic Europe.
AP1 (Applicant): So, Mr. President, dear members of the court, this court has ended the second-class
AP1 (Applicant): status of children born out of wedlock about 30 years ago. And we, my clients and
AP1 (Applicant): myself, and many others in Europe concerned by this case, are respectfully submitting that you should also end the second-class status of children in rainbow families. Children living with their parents and their same-sex partners.
AP1 (Applicant): And thereby, this court would contribute to the well-being and the pursuit of happiness of all children, regardless of the race, the ethnic origin, the color, the religion, and also on the basis of the gender and the sexual orientation of their parents. Many thanks.
Nicolas Bratza (JudgeP): We have now come to the end of the hearing.
Nicolas Bratza (JudgeP): The court will now deliberate on the admissibility and merits of the case.
Nicolas Bratza (JudgeP): The parties will be informed of the court's decision and or judgment in due course.
Nicolas Bratza (JudgeP): I declare the hearing in the case of X against Austria closed.
Linos-Alexandre Sicilianos (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Big Brother Watch and others versus the United Kingdom.
Linos-Alexandre Sicilianos (JudgeP): The three applications were lodged with the court under Article 34 of the Convention by Big Brother Watch and others, Bureau of Investigative Journalism and Alice Ross, and 10 human rights organizations and others on 4 September 2013, 11 September 2014, and 20 May 2015, respectively.
Linos-Alexandre Sicilianos (JudgeP): The applications were allocated to the first section of the court pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Linos-Alexandre Sicilianos (JudgeP): The applications were communicated to the government on 7 January 2014, 5 January 2015, and 24 November 2015, respectively.
Linos-Alexandre Sicilianos (JudgeP): The respondent government are represented by their agent, Mrs. Sagoo, assisted by Mr. Eadie QC and Mr. Milford, Counsel, and my Mrs. Samuel, Mr. Bowden, Mr. Anstee, Mr. Rutherford, Mrs. Morgan, and Mr. Newman, advisors.
Linos-Alexandre Sicilianos (JudgeP): The applicants are represented by Mrs. Rose QC, Mrs. Mountfield QC, and Mr. Ryder QC, counsel, assisted by Mr. Mehta, Mr. McCarthy, Mr. Wills, Mr. Carey, Mrs. Wilson Palow, and Mr. Williams, advisors.
Linos-Alexandre Sicilianos (JudgeP): Additional representatives from the applicant organizations are also present.
Linos-Alexandre Sicilianos (JudgeP): I welcome the representatives in the name of the court.
Linos-Alexandre Sicilianos (JudgeP): I also welcome the delegation from the Indonesian Constitutional Court.
Linos-Alexandre Sicilianos (JudgeP): Having consulted the agent of the government and the representative of the applicants, I have determined the order of addresses as follows.
Linos-Alexandre Sicilianos (JudgeP): Mr. Eadie for the government will speak first, and then Mrs. Rose and Mrs. Mountfield for the applicants.
Linos-Alexandre Sicilianos (JudgeP): Mr. Eadie, you have the floor.
GR1 (Government): these applications raise issues of the utmost importance for the United Kingdom.
GR1 (Government): If the applicant's case on the legal requirements for interception and intelligence sharing in this context were to be accepted, the results would be profound damage to the capabilities and work of the UK intelligence services.
GR1 (Government): The nature of the safeguards against unwarranted intrusion on the right to proper respect for privacy need, we say, to take into account the impact on the ability of the government to protect the lives and safety of the public, all the more so in the light of the string of recent and appalling atrocities across Europe.
GR1 (Government): That balance, that sensitivity to the need not unduly to impede contracting states' ability to fulfill their paradigm-protective responsibilities, is inherent in the fundamental structure of the Convention and has been a hallmark of this court's jurisprudence in this area, and rightly so.
GR1 (Government): I will need to examine the true extent of the interference with Article 8 rights in the present context in due course.
GR1 (Government): And I will, of course, examine in some detail the extensive, multilayered systems of safeguarding that exist in the UK.
GR1 (Government): But it is to be noted at the outset, when considering these balances, that whilst privacy rights are, of course, of importance and to be respected, the right to life and, indeed, the safety of citizens is paramount.
GR1 (Government): And in this sphere, as you will be well aware, national security is not an end in itself.
GR1 (Government): The intelligence services exist and operate to seek, as best they can in a dangerous world, to protect the public.
GR1 (Government): The scales in the overall balance are not evenly weighed.
GR1 (Government): The core problem at the heart of the applicants' case is that they seek to conjure up, by reference to what we suggest are grossly inaccurate speculations presented as fact, a specter of vast privacy intrusion.
GR1 (Government): They ignore or seek to downplay the wide-ranging safeguarding built into the domestic regime and then simply ignore the critical need to protect lives.
GR1 (Government): I, therefore, start with the pressing need for and critical importance of the intelligence services capabilities that you are considering today.
GR1 (Government): The importance of those powers has been the subject of detailed and repeated consideration by a series of independent bodies in recent years, by the independent reviewer of terrorism, David Anderson QC, whose report is at tab 50 of your bundle, by the Intelligence and Security Committee in Parliament, whose report, in relevant part, is at tab 47 of your bundle, by the Interception Commissioner, and by the Investigatory Powers Tribunal, the IPT.
GR1 (Government): There is unanimity of view.
GR1 (Government): There is, to use Anderson's words, a proven operational case emphasising the importance of the powers.
GR1 (Government): As he put it at paragraph 5.54 of the bulk powers report,
GR1 (Government): bulk interception is proven and is of, quote, vital utility in counterterrorism and in protecting against child exploitation, amongst other fields.
GR1 (Government): It has played, as he put it, an important part in the prevention of bomb attacks and is of very great utility in assessing the intentions and plans of targets in crucial situations.
GR1 (Government): And it has, as he noted, no proper, less intrusive alternative.
GR1 (Government): We have given compelling examples of major threats that were only discovered and repelled by the use of bulk data at paragraphs 23 to 27 of our observations.
GR1 (Government): They include the triggering of a manhunt for a known terrorist linked to previous attacks on the UK at a time when other intelligence sources had gone cold, and the highlighting of links between the terrorist and extremists in the UK.
GR1 (Government): The result was a successful disruption of the terrorist network.
GR1 (Government): The identification of an airline worker with links to al-Qaeda, who had offered to use his airport access to launch a terrorist attack from the United Kingdom.
GR1 (Government): Without access to bulk data and its examination, it is highly unlikely that he would have been identified.
GR1 (Government): The analysis of bulk data to track men overseas who had used the World Wide Web to blackmail hundreds of children across the world.
GR1 (Government): The disruption of an operational terrorist cell in the final hours before a planned attack.
GR1 (Government): Most recently, in a judgment of the 8th of September, 2017, behind tab 21 of your bundles, the IPT, the Investigatory Powers Tribunal, has referred a series of questions back to the Court of Justice in Luxembourg post the Watson decision.
GR1 (Government): In relevant part, they questioned whether the sorts of safeguards identified in Watson and Digital Rights Ireland could possibly work in the national security context that we are dealing with here.
GR1 (Government): The IPT was concerned, therefore, to set out as clearly as possible the true factual basis on which those issues arose in the context of the bulk capabilities of the intelligence agencies.
GR1 (Government): They were concerned to do so in part, given inaccurate and overblown assertions made by claimants who were unsighted on the true facts.
GR1 (Government): In part, recognizing that the IPT had the benefit themselves of having seen the full picture, including sensitive material, and in part concerned that the CJU may not fully and clearly have understood the relevant facts.
GR1 (Government): They placed considerable reliance on the independent Anderson report, but they also considered further and updating evidence.
GR1 (Government): They then made three important findings of fact.
GR1 (Government): First, that the use of bulk data capabilities is, quote, critical to the ability of the security and intelligence agencies to secure national security and essential to the protection of that national security.
GR1 (Government): Second, a fundamental feature they found of many of the techniques of interrogating bulk data is that they are non-targeted.
GR1 (Government): As they noted, the capacity to intercept communications in bulk is critical for the discovery of threats and intelligence targets.
GR1 (Government): The intelligence services rely on the use of small pieces of intelligence information obtained through bulk interception in order to find new threats and those responsible for them.
GR1 (Government): As the Intelligence and Security Committee said in their 2014 report, quote, it is essential that the agencies can discover unknown threats.
GR1 (Government): This is not just about identifying individuals who are responsible for threats.
GR1 (Government): It is about finding those threats in the first place.
GR1 (Government): Indeed, often this is the only way to obtain even a small proportion of the communications of known targets overseas in circumstances where they are very likely to use a variety of means of communication and change those means frequently and where electronic communications travel over a variety of different routes to reach their intended destination.
GR1 (Government): As the IPT pointed out, this is very different from the use of data in an investigation of a criminal offence by police.
GR1 (Government): The police may well have identified a suspect who can then be made the subject of a targeted investigation.
GR1 (Government): There is, as the IPT put it, a, and I quote, a need for the haystack in order to find the needle.
GR1 (Government): The IPT gave an example of how it had been possible to use bulk data in this way to establish by applying a number of filters and matches to reduce a pool of some 27,000 candidates so that one person was identified as a suspected al-Qaeda suicide bomber.
GR1 (Government): The IPT thus concluded that bulk communications data, quote, is of particular value in identifying potential threats by persons who are not the target of any investigation.
GR1 (Government): Their third finding was this.
GR1 (Government): If in a national security context such as the present, procedural requirements of the kind referred to by the CJU in Watson were to be applied to measures taken in the bulk data sphere to protect national security, and I quote from the IPT's judgment at paragraph 69, they would frustrate them and put the national security of the UK and it may be other member states at risk.
GR1 (Government): I emphasise that those findings of fact were made two months ago.
GR1 (Government): I do so because the applicants say at paragraphs 9 to 15 of their observations that in this sphere, the world has moved on.
GR1 (Government): In truth, the fundamentals of the section 8.4
GR1 (Government): interception regime have not changed.
GR1 (Government): It was known at the time that the relevant piece of legislation, RIPA, was enacted that a section 8.4 warrant would be used
GR1 (Government): to collect external communications in bulk, that this would require the interception of the entire contents of a bearer and that a certain number of internal communications would necessarily be intercepted as part of that process.
GR1 (Government): All those matters are reflected in debate in Parliament over the bill and in the scheme of the Act.
GR1 (Government): The volume of communications has inevitably increased, but those fundamentals remain exactly the same.
GR1 (Government): The really significant change is that the task of collecting wanted and necessary data is now much more complex, whilst at the same time, the global threat of terrorism has hugely increased.
GR1 (Government): Terrorists and criminals use online methods of communication that are much more difficult today to intercept.
GR1 (Government): They are much more aware of data security.
GR1 (Government): They hide behind multiple and changing identities online.
GR1 (Government): They hide in the dark web.
GR1 (Government): They use encryption.
GR1 (Government): And the number of communication providers has grown, and their levels of cooperation vary significantly.