TrustHLT/LaCour huggingface dataset:
GR1 (Government): Mr. President, evidence shows that the Child Welfare Service did indeed attempt to find an appropriate Muslim foster home for the boy, in line with the Board's statement that I just cited.
GR1 (Government): I refer to the Government's Memorial Section 2.6, where these efforts are rendered in detail.
GR1 (Government): The Child Welfare Service considered not only the applicant's relative as a candidate, but also two other Muslim foster homes, but for fully legitimate reasons decided against all of them, also having regard to the child's extraordinary needs and his need for an imminent placement.
GR1 (Government): The Child Welfare Service was, for that matter, also required to search for a Muslim foster home by virtue of domestic law and regulations, as is further detailed in the Government's Memorial Section 3.10.
GR1 (Government): The Government agrees with the applicant and the Turkish Government that the Member States or the Council of Europe shall make reasonable efforts to ensure that children are cared for by foster parents who share their religious and cultural backgrounds.
GR1 (Government): But the decisions taken in the present case show that Norwegian authorities acted with due diligence in this regard, consistent with the Convention's requirements.
GR1 (Government): A legal framework was in place, and the general measures undertaken to attain this goal have been actively pursued for many years, as is evidenced by two research reports that have been submitted to the Grand Chamber as annexes 58 and 59 to the Government's Memorial.
GR1 (Government): In this particular case, however, the ideal outcome could not be attained simply because of the scarcity of appropriate Muslim foster homes in reasonable proximity to the applicant and having regard to other aspects of the boy's needs and those affiliated with his faith, notably his well-being and what was considered best for him.
GR1 (Government): For these reasons, the Grand Chamber is invited to conclude that the applicant's rights under the Convention have not been violated, also when considering in the cases religious and cultural aspects.
GR1 (Government): This concludes the Government's intervention. I thank you for your attention.
Jon Fridrik Kjølbro (JudgeP): Thank you Mr. Emberland. I can confirm that your oral intervention was heard clearly and without any interruption. I thank both parties for their submissions and I now invite the judges of the Grand Chamber wishing to do so to put their questions to the parties.
Jon Fridrik Kjølbro (JudgeP): The first question will be from Judge Arnfinn Bårdsen. You have the floor please.
Arnfinn Bårdsen (Judge): The case was referred to the Grand Chamber of the Court based on the applicant's request related to Article 9.
Arnfinn Bårdsen (Judge): I take, however, note that the agent of the Norwegian government, both in the written submissions and now during the hearing this morning, has entered into close to a full-fledged reassessment, also under Article 8, where the chamber unanimously found a violation.
Arnfinn Bårdsen (Judge): I have two closely interconnected questions to the agent of the Norwegian government related to the government's position on the interpretation and application of Article 8 taken in isolation, leaving out now the issues under Article 9.
Arnfinn Bårdsen (Judge): Of course, the representative of the applicant is free to address these questions, too, should she so wish.
Arnfinn Bårdsen (Judge): I read the Norwegian government's written submissions to the effect that it agrees with the Starnloeben principles, as did the Norwegian Supreme Court in its Grand Chamber follow rulings 27 March late and subsequent follow-up rulings from that court since then, in parallel with this court's follow-up judgments.
Arnfinn Bårdsen (Judge): The government's position appears to be confirmed by the oral pleadings this morning.
Arnfinn Bårdsen (Judge): My first question is this.
Arnfinn Bårdsen (Judge): Have I understood the Norwegian government position correctly, that the government agrees with the Starrloeben principles in their full range, and now forcefully ask the Grand Chamber of the court both to guard these principles and to apply them?
Arnfinn Bårdsen (Judge): Assuming that the agent will answer this first question in the affirmative, my second question is whether the Norwegian government also accept this court's reading of Starnloeben, as this reading transpires from the court's application of the Starn Loeben principles in subsequent chamber judgments, such as KO and VM versus Norway, November 2019, AS versus Norway, December 2019, Peterson and others versus Norway, 10 March 2020, and Herne Hult versus Norway, 10 March 2020.
Arnfinn Bårdsen (Judge): I need to expound some more on the context and substance of this second question.
Arnfinn Bårdsen (Judge): I remind you that these four Norwegian chamber judgments are all unanimous in finding a violation of Article 8.
Arnfinn Bårdsen (Judge): They were decided by alternating chamber formations.
Arnfinn Bårdsen (Judge): They all refer to and explicitly state that they apply the Starnloeben principles.
Arnfinn Bårdsen (Judge): And they are all final.
Arnfinn Bårdsen (Judge): After the Grand Chamber panel in September last rejected the Norwegian government's request for having the two of them, Peterson and others, and Herne Hult referred to the Grand Chamber.
Arnfinn Bårdsen (Judge): Apart from the fact that the chamber judgment in the current case is not final, Abdi Ibrahim blends apparently squarely and seamlessly into this group of cases.
Arnfinn Bårdsen (Judge): The same can be said about the most recent judgment against Norway on this issue, namely ML versus Norway, 22 December 2020.
Arnfinn Bårdsen (Judge): In addition, the Starnloeben principles have, of course, been referred to and applied by the court in a number of parallel judgments against other member states.
Arnfinn Bårdsen (Judge): I note here that the government's argument before the Grand Chamber panel in Peterson and others and in Herne Hult was that the chamber judgment in those two cases did not represent a correct application of Starnloeben.
Arnfinn Bårdsen (Judge): Moreover, the Norwegian government's arguments before the Grand Chamber panel in those cases were apparently quite similar to those submitted now before the Grand Chamber in this current case, notably arguments in substance related to a lack of deference to the assessment carried out by the domestic authorities.
Arnfinn Bårdsen (Judge): That is, too little subsidiarity, too little margin of appreciation, too much substantial review.
Arnfinn Bårdsen (Judge): And that the court laid too little emphasis on the best interest of the child, but rather gave priority to the biological parents.
Arnfinn Bårdsen (Judge): I also note that the Norwegian government did not ask for the current case, Abdi Ibrahim, to be referred to the Grand Chamber.
Arnfinn Bårdsen (Judge): Nonetheless, the old argument that the Norwegian chamber judgments following up Starn Loeben are not really in compliance with Starn Loeben, but represent rather an extension, is apparently still alive.
Arnfinn Bårdsen (Judge): The alleged errors in the chamber are in substance not case specific.
Arnfinn Bårdsen (Judge): The core critique is systemic.
Arnfinn Bårdsen (Judge): Going to the court's role and the level and character of the European control mechanism under the convention.
Arnfinn Bårdsen (Judge): Indeed, we recognize the gist of these arguments in the submissions made before the Grand Chamber in the current case by the intervening Danish government in referral also to the Copenhagen Declaration.
Arnfinn Bårdsen (Judge): So finally, here is the real substance of my second question.
Arnfinn Bårdsen (Judge): Taking into account the context that I have now just briefly described, and that in cases like this one, where the family ties are cut completely and permanently over, the threshold under Article 8 is indeed very high.
Arnfinn Bårdsen (Judge): And the court applies, according to Starn Loeben, stricter scrutiny, which will inevitably also narrow the margin of appreciation.
Arnfinn Bårdsen (Judge): Would it at all be possible for the court to not finding a violation of Article 8 in this case, as it now stands, without also in the same vein calling into question not only the bulk of chamber judgments handed down subsequently to Starn Loeben, but also Starn Loeben itself?
Arnfinn Bårdsen (Judge): Is the government not in reality, by the character of its arguments, in fact inviting the Grand Chamber of the court to reopen Starn Loeben as precedence and take one or more steps back?
Arnfinn Bårdsen (Judge): And even if this is not the intention of the government, would there not be a real risk that a Grand Chamber judgment not finding a violation of Article 8, based on the arguments forwarded by the government, would be perceived as watering down the Starn Loeben principles?
Arnfinn Bårdsen (Judge): I apologize for having used so much valuable time.
Arnfinn Bårdsen (Judge): And I thank you for your patience, Mr. President.
Arnfinn Bårdsen (Judge): And I thank the agent for the Norwegian government in advance for his replies to my inquiries.
Jon Fridrik Kjølbro (JudgeP): I'll now give the floor to George O'Leary for a question.
Síofra O’Leary (Judge): In paragraph 119 of their submissions, the Norwegian government highlight the fact that Article 2 of Protocol Number 1 did not feature in the application to the court or in the referral request.
Síofra O’Leary (Judge): Presumably because of the former, the chamber didn't address this article.
Síofra O’Leary (Judge): So could the parties explain why Article 2 of Protocol 1 can now be considered to fall within the scope of the case before the Grand Chamber?
Síofra O’Leary (Judge): And is the government in paragraph 119 pointing to a possible exhaustion problem in relation to this article?
Jon Fridrik Kjølbro (JudgeP): And the next question is from Judge Lemmens.
Jon Fridrik Kjølbro (JudgeP): You have the floor.
Paul Lemmens (Judge): I actually have two questions.
Paul Lemmens (Judge): One is primarily to the government.
Paul Lemmens (Judge): We have heard both parties arguing extensively on the one hand that the authorities did not do enough to find a family with the same or a similar ethnic, religious or cultural background, or the other party said the authorities did enough.
Paul Lemmens (Judge): Assuming that indeed it was not possible to find such a family, were there nevertheless other restrictions relating to the choice of a foster family among families that do not have the same characteristics as the applicant?
Paul Lemmens (Judge): So it's not only, my question is, is there not only a question of trying to find the appropriate family, but also avoiding other families?
Paul Lemmens (Judge): And how does that work in practice?
Paul Lemmens (Judge): And the second question is primarily directed to the applicant.
Paul Lemmens (Judge): I heard when the applicant was arguing about Article 9 that at a given moment, but she did not seem, the lawyer did not seem to develop that, she spoke of the positive obligations under Article 9.
Paul Lemmens (Judge): Could the applicant explain what the complaint is about?
Paul Lemmens (Judge): Is it about an interference by the state in freedom of religion or about a failure to fulfill a positive obligation under Article 9?
Jon Fridrik Kjølbro (JudgeP): Thank you very much and I give the floor to Pastor Vilanova.
Jon Fridrik Kjølbro (JudgeP): Please.
Pere Pastor Vilanova (Judge): Merci beaucoup, monsieur le Président.
Pere Pastor Vilanova (Judge): J'ai deux questions, une destinée à la représentante de la requérante et la deuxième destinée à l'agent du gouvernement.
Pere Pastor Vilanova (Judge): Commençons donc par la question destinée à la représentante de la requérante.
Pere Pastor Vilanova (Judge): Si j'ai bien compris, aujourd'hui, pendant votre pléthorie, vous avez demandé la réouverture de la procédure interne en base de l'article 46, si j'ai bien compris.
Pere Pastor Vilanova (Judge): J'aimerais bien que vous le confirmiez.
Pere Pastor Vilanova (Judge): Si tel est le cas, pour autant que j'ai bien compris votre position devant la Chambre, vous n'avez pas demandé telle possibilité.
Pere Pastor Vilanova (Judge): Est-ce que vous pouvez expliquer à quoi est dû ce changement de position et pourquoi introduisez-vous, si tel est le cas, devant la Grande Chambre cette nouvelle prétention?
Pere Pastor Vilanova (Judge): Ma deuxième question se dirige particulièrement à l'agent du gouvernement.
Pere Pastor Vilanova (Judge): Le gouvernement que vous représentez n'a pas effectué aucune demande de renvoi du jugement de la Chambre.
Pere Pastor Vilanova (Judge): Donc, normalement, s'il n'y a pas de pétition de renvoi, cela devrait normalement nous laisser entendre que le gouvernement était d'accord avec le jugement de la Chambre.
Pere Pastor Vilanova (Judge): Or, dans votre mémoire, présentée devant la Grande Chambre le 25 novembre 2020, au niveau de vos conclusions, notamment au niveau du paragraphe 166, vous demandez à ce que la Chambre conclue à la non-violation en solitaire de l'article 8.
Pere Pastor Vilanova (Judge): Pouvez-vous, s'il vous plaît, nous expliquer la raison de cette apparente contradiction?
Jon Fridrik Kjølbro (JudgeP): And the next questions will come from Judge Motoc, please.
Jon Fridrik Kjølbro (JudgeP): You had the floor.
Iulia Antoanella Motoc (Judge): Merci beaucoup monsieur le Président.
Iulia Antoanella Motoc (Judge): Ma première question est plutôt factuelle, elle est un peu liée à la première question du juge Lemmens. Il y a une contradiction entre ce que la récurrente et le gouvernement disent par rapport aux essais que le gouvernement, les autorités norvégiennes ont fait de trouver une famille d'accueil pour le fils de récurrente, une famille qui soit d'origine somalienne ou de croyance musulmane. Donc je voudrais que les deux parties répètent quels sont
Iulia Antoanella Motoc (Judge): vraiment ces essais, comment sont passés et j'ai une question subséquente, est-ce que, qui est posée au gouvernement, est-ce que le gouvernement et les autorités norvégiennes ont pensé de trouver aussi une famille séculière vu la position de la récurrente mais aussi les experts dans la croyance musulmane qui expliquent le fait que être né musulman signifie complètement différemment autre chose par rapport à des autres croyances. Ça c'est ma première question.
Iulia Antoanella Motoc (Judge): Ma deuxième question est relative à la façon dont les deux parties voient le rapport entre l'article 9 de la convention et l'article 2 du protocole 1 parce qu'il me semble que la récurrente avait fait des propos par rapport à la cour de trouver une violation de l'article 9 en relation avec cet article 2 tandis que le gouvernement nous a dit que l'article 9 sans doute il est plus large. Donc quelle sera la préférence du gouvernement et de la récurrente par rapport au rapport entre ces deux articles? Merci beaucoup.
Jon Fridrik Kjølbro (JudgeP): Thank you. And the next judge asking questions is Yudkivska. You have the floor.
Ganna Yudkivska (Judge): My question echoes questions put by judges Lemmens and Motoc on Article 9, but it goes to the applicant.
Ganna Yudkivska (Judge): In your memorial, you relied heavily on the case of Tenenbaum versus Sweden, that concerned decision by the Swedish authorities to place their daughters in a Protestant foster family rather than a Jewish one, although they were Jewish, in which the commission stressed on the principles that the authorities were obliged to take into consideration the applicants' wish to have their children be placed in Jewish foster home.
Ganna Yudkivska (Judge): And you rightly say that this applies in the present case as well.
Ganna Yudkivska (Judge): However, in the Tenenbaum, the commission declared this complaint inadmissible because, I quote, the social authorities explored the possibilities of placing the children in a Jewish foster home, but their endeavors failed because of the other considerations, such as the difficulty to find, without any unnecessary waste of time, relevant home not far from the parents.
Ganna Yudkivska (Judge): In the present case, authorities explored three options of placing the applicant's son to a Muslim family not far from the applicant's home.
Ganna Yudkivska (Judge): They all failed before placing him in a Christian foster home.
Ganna Yudkivska (Judge): So my question is, where do you see the differences between these two situations that would justify, in your view, departure from the findings in the Tenenbaum case?
Jon Fridrik Kjølbro (JudgeP): These were the questions asked by the judges and the court will now withdraw for approximately 25 minutes and resume again 11.45, following which the parties will be able to submit brief observations in reply to each other's submissions as well as to questions from the judges.
Jon Fridrik Kjølbro (JudgeP): The hearing is now suspended.
Jon Fridrik Kjølbro (JudgeP): The hearing is now resumed.
Jon Fridrik Kjølbro (JudgeP): May I draw your attention to the fact that the judges will have the possibility, after having heard the answers provided by the parties, to ask clarifications concerning these answers without, however, asking any new questions.
Jon Fridrik Kjølbro (JudgeP): I call on Ms. Lutina.
AP1 (Applicant): First, I would like to address and clarify something that was said by the states, by the government's agent in his submissions.
AP1 (Applicant): Because relating to revision of the judgment delivered by the chamber in the present case and revision of a found violation of Article 8, the government's agent stated that the national courts had done a very good assessment of the measures that were made towards the reunification of the applicant and her child, and that the domestic authorities had done everything that they could to reunify the child with the applicant.
AP1 (Applicant): And here I would like to point out that there are two factual errors, because one error is that indeed the applicant underwent changes and follow-ups and improvements in her ability for self-care, something that we also documented well in our submissions to the national courts when the case was pending before them.
AP1 (Applicant): However, the national authorities stated that the improved ability to self-care did not signify that the applicant's ability to care for her child had improved, and that they were, and then they didn't go into any specific assessment relating to that point, because the domestic authorities simply dismissed it as not relevant to the case.
AP1 (Applicant): The other point is that the contact regime that was established between the applicant and her child was not followed up thoroughly.
AP1 (Applicant): This was also my submission before the Chamber.
AP1 (Applicant): At the end, towards the adoption procedures, the whole visitation schedule had collapsed.
AP1 (Applicant): The Child Welfare Services, although there was a binding judgment where guaranteed one hour six times per year, those visits were not carried out according to the schedule, because the Child Welfare Services on their own decided that was not in the best interests of the child.
AP1 (Applicant): Thus, there had gone quite a while between the last time the applicant saw her child, and the next time she saw him again was in connection with a psychological evaluation done for this case.
AP1 (Applicant): And I believe we're talking about an interval of six months.
AP1 (Applicant): So there was indeed no aim at re-ifying the family.
AP1 (Applicant): Also point out that it had gone only two years from the district court's delivered its judgment in December 2010, that the child should be placed in foster care, and the adoption proceedings began.
AP1 (Applicant): Actually, when I think about it, it was one and a half years, because the proceedings for the adoption began in September 2013.
AP1 (Applicant): That's meaning that it had not elapsed enough time to conclude that the applicant was for all time not fit to be a mother, and that the child could not benefit from any contact with his mother.
AP1 (Applicant): Now I go over to the questions that a member of the court posed to the applicant.
AP1 (Applicant): I start with Judge O'Leary.
AP1 (Applicant): There should be found a violation of Article 9, but Article 2 of Protocol 1 is lex specialis, and because it is lex specialis, it gives content to Article 9.
AP1 (Applicant): But thus, having said that, we are entirely satisfied with the violation of Article 9.
AP1 (Applicant): And in any event, the court knows its law, curia novit iudia.
AP1 (Applicant): And also, I would like to point out that submissions made by the applicant throughout the entire national process has been there, that the Child Welfare Services had not provided her with the right to raise and educate her child in accordance with her faith, although the factual submissions were not submitted under Article 2 of Protocol 1.
AP1 (Applicant): Further, I move on to the questions from Judge Lemmens regarding a positive obligation in Article 9.
AP1 (Applicant): It is a negative obligation not to make this specific decision.
AP1 (Applicant): It has also been an interference with the applicant's rights under Article 9, such as national authorities had handled the case.
AP1 (Applicant): And now, I move on to Judge Vilanova and the question there.
AP1 (Applicant): Why do we raise the question of Article 46 when this submission was not raised previously at previous stages?
AP1 (Applicant): This is because now we see that the government in their submissions, they want to have the chamber judgment reviewed.
AP1 (Applicant): They have made this submission now in court, and that this approach that the government has adopted towards the chamber judgment in all the other cases show us that they do not, in fact, respect the judgments that the court has delivered.
AP1 (Applicant): This is also something that we have documented in the articles submitted in our submissions.
AP1 (Applicant): And now, I move to Judge Motoc.
AP1 (Applicant): There are nearly 30,000 Somalis in Norway, and there are 200,000 Muslims in Norway.
AP1 (Applicant): And the government states that it was not possible amongst all this great number to find an adequate foster care family.
AP1 (Applicant): However, there were also no attempts made to find a secular family which would respect the applicants and thus the child's religion.
AP1 (Applicant): This is also replied to the Judge Lemmens question.
AP1 (Applicant): And here, I would also stress that the district court found that the child should be placed in foster care on the 10th of December, 2010, while the child was placed in the foster care home in question on the 13th of December, 2010.
AP1 (Applicant): Thus, I ask the court, is it, has there elapsed enough time in three days to actually make a good and rational thought out decision as to where to place the child in accordance with all the different and difficult questions this case raised?
AP1 (Applicant): Also, in their submissions, the government stated that the Child Welfare Services considered both the applicant's cousin and the two other Muslim foster homes.
AP1 (Applicant): And in this relation, I would point out that this information was not previously known to us.
AP1 (Applicant): This information did not come out during the national proceedings and was only made in, it did not come forth when the chamber reviewed the case.
AP1 (Applicant): It was a submission that was made known to us during the revision done here by the Grand Chamber.
AP1 (Applicant): Furthermore, there are no written reports about the Child Welfare Services contacting two alternative Muslim families.
AP1 (Applicant): And the applicant was never informed about this process.
AP1 (Applicant): She was never asked to submit any opinions regarding the two families, the two Muslim families that the Child Welfare Services say that they considered.
AP1 (Applicant): For that matter, the applicant was never asked to submit her opinion to the fact that the Child Welfare Services wanted to place this particular child in a practicing Christian family.