TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): It is my viewpoint that there will be very, very few cases in Denmark where the sovereign majority will have direct consequences.
AP1 (Applicant): I find it very unlikely that we could establish facts in a humanitarian residents case for a mentally ill person coming into Denmark, because they would not have been seven years behind closed doors permanently in a psychiatric hospital.
AP1 (Applicant): And they would not have the background that we have here, which is a Supreme Court judgment stating that he's insane, stating that he should be under forced medical treatment under the supervision of the courts.
AP1 (Applicant): So we find it unlikely that there would be any impact or at least a very minor impact from the sovereign majority judgment in Denmark.
AP1 (Applicant): It's a rather unique case with very rather seldom facts.
AP1 (Applicant): Judge Colbro is also asking mainly the government about 183 in Papua New Guinea.
AP1 (Applicant): And I would just for the applicant stress that for us is evident that mentally ill persons are covered by 183.
AP1 (Applicant): In Papua New Guinea, there's a reference to Aswat.
AP1 (Applicant): And in Aswat, the case was about a person with severity of mental condition, paragraph 57 of Aswat.
AP1 (Applicant): That judgment was clearly a background for Papua New Guinea.
AP1 (Applicant): And it follows consistently with a judgment such as Musial and G versus France, where the court also protects mentally ill persons from hardship under Article 3.
AP1 (Applicant): Colbro then asks about the uncertainty in Denmark.
AP1 (Applicant): And since I'm working in this field in Denmark, I would say that Papua New Guinea has had an impact in Denmark, that's for sure.
AP1 (Applicant): But it's also something that Danish authorities have shown that they are able to cope with.
AP1 (Applicant): They are able to deal with Papua New Guinea, just as they are able to deal with the majority verdict of sovereign.
AP1 (Applicant): With this, I turn to the questions by Judge O'Leary from Ireland.
AP1 (Applicant): And the first question from O'Leary was whether there could be imposed a temporary ban by the Supreme Court.
AP1 (Applicant): I wait to hear the answer of the government on this.
AP1 (Applicant): But it is our analysis that that could not have taken place at the time.
AP1 (Applicant): The seriousness of the criminal activity that Mr. Bolsgifter just mentioned
AP1 (Applicant): would preclude at the time the Supreme Court from coming to another conclusion than a permanent ban on living in Denmark.
AP1 (Applicant): Let me add to this that this system is obviously not very helpful under Article 8 and other parts of the Convention.
AP1 (Applicant): So in 2019, a new law was passed in Denmark whereby it's now left to the judges deciding in the criminal case whether the starting point of a permanent ban of entry into Denmark can now be modified with the court to live up to the criteria established by the European Court in a number of Article 8 judgments where the court has said a temporary ban is OK under Article 8, but a permanent ban is a violation of Article 8, as we argue in this case.
AP1 (Applicant): So at the time, it was not possible to give a shorter ban than the permanent one.
AP1 (Applicant): It would be possible today in Denmark.
AP1 (Applicant): Judge O'Leary also asks about the outpatient situation.
AP1 (Applicant): And allow me to perhaps clarify the facts.
AP1 (Applicant): Savran was never an outpatient, never for one single day.
AP1 (Applicant): He was permanently in a closed mental institution from May 2008 until he was sent to the airport of Copenhagen 23 June 2015.
AP1 (Applicant): So one year and one month and a little more, and he was never considered well enough medically that he could be an outpatient.
AP1 (Applicant): Under the Danish criminal code, you go from the control of the judges, the courts, and then you go to the control of the chief physician at the hospital.
AP1 (Applicant): The chief physician was Mr. Løbentin,
AP1 (Applicant): and he never found it advisable that he could be an outpatient.
AP1 (Applicant): He was too sick.
AP1 (Applicant): So therefore, we cannot answer about his living conditions.
AP1 (Applicant): I'm sure Mr. Savran would have moved in with his mother.
AP1 (Applicant): We can see he absconded from the hospital a number of occasions, and he was also always running back to his mother in Amager near Copenhagen and then returning to the hospital a day or two later to continue his medication.
AP1 (Applicant): But he was never living outside the hospital.
AP1 (Applicant): Again, we bear in mind his very serious psychiatric disease, paranoid schizophrenia.
AP1 (Applicant): I then turn to the questions by Judge Orland from Malta, and the first question was whether the guardianship means that he lacked mental capacity.
AP1 (Applicant): And the answer from the applicant is yes.
AP1 (Applicant): He didn't have the mental capacity, and therefore, Rita Briggs was appointed as his guardian.
AP1 (Applicant): I respectfully refer Judge Orland to paragraph...
AP1 (Applicant): Sorry, to the judgment where her initials are mentioned, R.B. Her name is Rita Briggs,
AP1 (Applicant): and she was the one bringing the case before the court.
AP1 (Applicant): Mr. Savran did not have the legal capacity,
AP1 (Applicant): the mental capacity to do so, and therefore, she was the one bringing it before the court.
AP1 (Applicant): Her logic, she has told me, was initially, he got seven years of prison.
AP1 (Applicant): Now he's been more than seven years in a closed mental institution in the hospital, behind closed doors, and now it's the time for a judge to revisit whether Mr. Savran should be moved out of the hospital.
AP1 (Applicant): The last question from Judge Orland was the criminal process, and I very much understand the question because it's a little bit confusing in the case about this in the facts, and that's not on your part, Judge Orland.
AP1 (Applicant): He should not have gotten the seven years.
AP1 (Applicant): That was a clear error by the Danish courts, by the city court.
AP1 (Applicant): It was corrected by the high court, by the Supreme Court, who then referred the case back to the city court again, where he had the same trial again.
AP1 (Applicant): It was stated in 2009 that he was insane.
AP1 (Applicant): He could not be punished by a normal sanction, and he could only be sanctioned with a mental, by being in a psychiatric hospital.
AP1 (Applicant): He was mentally retarded, and he was also insane.
AP1 (Applicant): That's why he couldn't be convicted.
AP1 (Applicant): So when the judge asks whether there's a, it would have an impact that he has the diagnosis paranoid schizophrenia, I would say it wouldn't have any consequence because he was already found insane by the Supreme Court in 2009.
AP1 (Applicant): Let me add to this that the chamber judgment fails to mention on Article 8, the dissenting opinion of the chairman of the Supreme Court.
AP1 (Applicant): If you look to the annexes, you would see that Peter Block, the chairman of the Supreme Court chamber, he voted against expulsion using the Article 8 criteria.
AP1 (Applicant): I respectfully request that his votum is also reflected in the judgment.
AP1 (Applicant): Those were the questions, Mr. President,
AP1 (Applicant): and I now go to my very last remarks in rebuttal to what the government said.
AP1 (Applicant): The core and maybe the crucial point in this case is the severity of Savran's disease.
AP1 (Applicant): This is fully documented in front of the court, and the testimony by the chief physician in the high court, in the city court, in my opinion, clearly fulfills the criteria of Pabuz Vili, of Tatar, of Aswad.
AP1 (Applicant): It's a little bit old-fashioned when the government states like there's a difference between somatic illness and mental illness.
AP1 (Applicant): This is clearly not the state of the jurisprudence of the court.
AP1 (Applicant): And again, I refer to the 2019 judgment against Belgium.
AP1 (Applicant): The contact person, again, it's not a social measure.
AP1 (Applicant): It's an integrated part of the expert treatment of my client.
AP1 (Applicant): And when my colleague from the government in a somewhat dramatic language talks about that Denmark can no longer expel two countries unless they are at the same level as Denmark, this is simply not correct.
AP1 (Applicant): Aswad and Tatar and Tarakel shows this.
AP1 (Applicant): You need diligence by the authorities in the member states.
AP1 (Applicant): This could easily have been done by Denmark vis-a-vis Turkey.
AP1 (Applicant): A professional person could, in my opinion, within one week or two weeks, have clarified who would take care of my client.
AP1 (Applicant): Who would take care of my client when he arrived in Turkey?
AP1 (Applicant): Denmark has a large embassy in Ankara.
AP1 (Applicant): Turkey has a large embassy in Denmark.
AP1 (Applicant): There's numerous ways of communication in modern times whereby Denmark could have handed over my client to Turkey.
AP1 (Applicant): So Denmark is not going to be the home of those that should be expelled or extradited in the future.
AP1 (Applicant): Careful application of Aswad, of Tarakel, of Papusvili by the Danish authorities could have hindered the Article 3 violation.
AP1 (Applicant): Denmark failed to do this, and therefore, there's a violation primarily of Article 3.
AP1 (Applicant): If the court doesn't follow me on that, the criteria, the argument should be moved down to Article 8.
AP1 (Applicant): But this is the situation.
AP1 (Applicant): And by this, I close for today.
AP1 (Applicant): And thank you very much for your patience.
Robert Spano (JudgeP): Thank you very much indeed, Mr. Trier.
Robert Spano (JudgeP): I now call Mr. Braad for the government.
GR1 (Government): Thank you, Mr. President, distinguished members of the court.
GR1 (Government): I thank you for the pertinent questions and I shall try to respond to them in the order that they were received.
GR1 (Government): I think the first question posed by Judge Villanova was directed to the applicants' council, so I will move to the questions asked by Judge Kulpo.
GR1 (Government): First, there was a question about the Papasvili test.
GR1 (Government): Now that we argue that it cannot be applied meaningfully to persons with mental illness, what test should then be applied?
GR1 (Government): Well, in such cases, we would find that a high threshold should be maintained and that the relevant test should limit the protection of the Convention to situations involving either a risk of suicide or of self-harm.
GR1 (Government): Let me also add to that that in the present case, we have not seen any documentation of such a risk.
GR1 (Government): As to Judge Kulpo's second and third question, I will try to respond to them in combination.
GR1 (Government): The question is whether the interpretation of the paragraph 183 in the Papasvili judgment gives rise to uncertainties in Danish law and whether an alien without prior legal stay in Denmark can apply for humanitarian residence permit.
GR1 (Government): According to Danish law, a person can be granted residence permit if there are substantial humanitarian grounds, including persons who suffer from very serious illness, both physical and mental illness, and persons who cannot receive treatment in their country of origin.
GR1 (Government): So this applies also to persons who have not had a previous legal stay in Denmark.
GR1 (Government): The grounds for granting a humanitarian residence permit is in line with the court's case law, with the Papasvili case.
GR1 (Government): But as I said, the Papasvili test is difficult to apply equally to mental illness, as mental illness is not in itself irreversible but can be treated, and also intense suffering is very difficult to apply when assessing mental illness.
GR1 (Government): So I think I will stop here, but there are no uncertainties really with applying the Papasvili test under Danish law.
GR1 (Government): Let me move on to Judge O'Leary then.
GR1 (Government): There was a question about whether or not the High Court could have changed the permanent entry ban to a time-limited ban, and the answer to that question is no, it was not possible at the time, according to the Danish Aliens Act.
GR1 (Government): However, the relevant Danish legislation has since then been amended in 2018, which also the Applicants' Council referred to.
GR1 (Government): So as such, it is now possible to differentiate between various lengths when ordering an entry ban.
GR1 (Government): Let me then move to the two questions from Judge Hollande.
GR1 (Government): As concerned, the question whether the applicant did have legal capacity during the proceedings in 2008 and 9 and 15.
GR1 (Government): Since the applicant solely suffered from mild intellectual capacity reduction, it was not necessary to consider depriving him of his legal capacity.
GR1 (Government): So it's not actually fully correct when the Council for the Applicant states that the applicant was deprived of his legal capacity.
GR1 (Government): I think he had no legal guardian, but what he did have was what we call a bistandsvære in Danish.
GR1 (Government): It was this person, Briggs, who was responsible for supporting the applicant during the revocation proceedings in 2014 and also in 2015.
GR1 (Government): So a somewhat different institution we had to deal with here.
GR1 (Government): The second question from Judge Hollande concerned whether it's correct that during the criminal proceedings in 2008, a forensic report from March 2008 was presented.
GR1 (Government): And there it was stated that the applicant's symptoms must be explained as a simulation.
GR1 (Government): The High Court concluded that he was not mentally insane at the time of the crime, but just mildly mentally retarded.
GR1 (Government): The judgment from the High Court was appealed to the Supreme Court, which did not amend the judgment from the High Court on this particular point.
GR1 (Government): What the Supreme Court did was to amend the psychiatric measures from detention in the Hærste Vester institution to a psychiatric ward, the St. John's Hospital.
GR1 (Government): So I hope I have answered Judge Hollande's questions.
GR1 (Government): And let me then just very briefly, allow me briefly a couple of few essential points, just to recall a few of the essential points that are already made here.
GR1 (Government): The absence of a regular and personal contact person who is not in charge of the applicant's medication but is a supportive social measure cannot constitute degrading or inhuman treatment within Article 3.
GR1 (Government): And if a follow-up is necessary in the medical treatment of the applicant, it will, as a last resort, be possible for him to hospitalize in a hospital in Konya.
GR1 (Government): If the Court found that a violation of Article 3 took place in the present case, it would have a number of severe consequences.
GR1 (Government): First it would constitute a new and very expensive and unjustified reading of Article 3.
GR1 (Government): Second it would place significant practical limitations on the State's possibilities of removing criminal aliens, including the mentally ill.
GR1 (Government): And third, it would be a step towards making the Convention an instrument for alleviating socioeconomic disparities.
GR1 (Government): This would go beyond the scope of the Convention.
GR1 (Government): It would not be what the contracting States intended.
GR1 (Government): It would have substantial political, economic, and social consequences for the contracting States.
Robert Spano (JudgeP): Is there also a wish to follow up?
Robert Spano (JudgeP): Judge O'Leary?
Síofra O’Leary (Judge): My thanks to the parties regarding the clarification on the issue of permanent and temporary bans and this new information regarding a 2019 law.
Síofra O’Leary (Judge): Could I ask the representative of the government to develop a little bit on this question of the law permitting differentiation regarding re-entry bans with reference to what criteria or in what circumstances does it permit differentiation?
Síofra O’Leary (Judge): Thank you.
Robert Spano (JudgeP): Vice President Turković wants to follow up on a question.
Ksenija Turković (Judge): I just would like to follow up when it was decided to expel Savran outside of Denmark.
Ksenija Turković (Judge): Would it be possible if he would not be expelled at that time just to leave him and to free him from the institution in Denmark?
Ksenija Turković (Judge): So whether he was at that stage where he could be released actually from the institution.
Robert Spano (JudgeP): Judge Seibert-Fohr.
Anja Seibert-Fohr (Judge): Thank you very much, Mr. President.
Anja Seibert-Fohr (Judge): I would like to add on the question posed by Judge O'Leary and to inquire from the government agent more clarification on whether the change in the laws of 2018 which have been elaborated on by both sides would allow nowadays the applicant to apply nowadays for reconsideration of the length of the ban.
Anja Seibert-Fohr (Judge): Thank you.
Robert Spano (JudgeP): The questions are posed to the government.
Robert Spano (JudgeP): May I ask the agent of the government to comment?
Robert Spano (JudgeP): If the applicant wishes to add, that will be a possibility in a moment.
GR1 (Government): I think I will just have to refer to the fact that it's the gravity of the crime that is taken into consideration by the court in determining the time limit of the ban.
GR1 (Government): I'm not here able to be very specific on this, but that is the crucial criteria that this will evolve around.
GR1 (Government): But we can, of course, provide more precise information about this to the court.
GR1 (Government): Yes.
GR1 (Government): That's all.
GR1 (Government): I think the second question posed was directed at what would have happened if the deportation did not take place, what would have happened in Denmark.
GR1 (Government): And the most likely scenario would then have been that the applicant would have left the psychiatric ward and would then have been subject to outpatient handling and control according to the regular Danish system.
GR1 (Government): So that is the likely scenario if no deportation had taken place.
Robert Spano (JudgeP): I recall that if the government wants to elaborate further on the issue of the temporary or permanent ban, under the rules there is a possibility to do so within the next two weeks by a short written submission limited to that particular point.
Robert Spano (JudgeP): I now turn to the representative of the applicant.
Robert Spano (JudgeP): Mr. Trier, do you want to add any final words?
AP1 (Applicant): Judge O'Leary asked about the new rules from 1819.
AP1 (Applicant): The way I read the preparatory work, and I can add I was in the Supreme Court of Denmark on Friday about this issue, but the basis for the change of the law is that the Ministry of Justice is reading carefully the jurisprudence of the European Court and have seen in a number of cases under Article 8 that a permanent ban from reentry is a violation of Article 8, where the court is stating that a temporary ban, five years, ten years, would be in accordance with Article 8.
AP1 (Applicant): Let me mention one judgment, and that's Radovanic versus Austria.
AP1 (Applicant): This is one example of this case law where the European Court is stressing the concern about permanent entry ban, especially for younger people with serious crime.
AP1 (Applicant): So I would argue that the change of the law to allow flexibility is exactly to live up to Article 8, and perhaps also to secure the Danish judges the maximum flexibility in terms of ruling about extradition or expulsion from Denmark.
AP1 (Applicant): The second question from Judge Turkovic, what would happen, could he have been released?
AP1 (Applicant): If the city court judgment or decision would have been the final one here, which I argue it should have been, as all the judges know, then it would be up to the chief physician at the hospital, and he would eventually, I think, have been released to live in the outskirts of Copenhagen with his family, close to his mother, his older sister, his younger sister, his brother, his nephews and nieces here in Copenhagen.
AP1 (Applicant): So my view of the law is that yes, he could indeed have been released to stay with his family, continue treatment as an outpatient, taking medication, going in for blood tests, going in to have follow-up on his medication, continuing with the guardian, Mrs. Breks,
AP1 (Applicant): and so on.
AP1 (Applicant): So yes, he could have been released in Denmark.
AP1 (Applicant): And finally, Judge Seibert IV from Germany asked if he can apply for reconsideration.
AP1 (Applicant): I understood the question as it is whether he could do it at this time.
AP1 (Applicant): The way I understand the Danish rules, he cannot do that.
AP1 (Applicant): It's not possible for him to ask for a reconsideration of the permanent entry ban to Denmark.
AP1 (Applicant): The new rules from 2018 do not apply retroactively for his case, and therefore, he doesn't have that avenue.
AP1 (Applicant): The only avenue left for Mr. Savran is the Grand Chamber.
AP1 (Applicant): That is his only chance in this case.
AP1 (Applicant): And with this, I rest my case.
Robert Spano (JudgeP): Thank you very much, Mr. Trier.
Robert Spano (JudgeP): And I thank both parties for their submissions and their replies to the court.
Robert Spano (JudgeP): The court will now deliberate on the merits.
Robert Spano (JudgeP): The judgment will be delivered at a later date.
Robert Spano (JudgeP): And the parties will, of course, be informed of the delivery.
Robert Spano (JudgeP): I thank you for this morning.
Robert Spano (JudgeP): And I declare the hearing closed.
Guido Raimondi (JudgeP): I declare open the public hearing on the merits in the case of Zubac versus Croatia.
Guido Raimondi (JudgeP): The application was lodged with the court on 30 May 2012 under Article 34 of the Convention by a national of Bosnia and Herzegovina, Mrs. Vesna Zubac.
Guido Raimondi (JudgeP): The application was allocated to the second section of the court pursuant to Rule 52, paragraph 1 of the rules of the court.
Guido Raimondi (JudgeP): On 11 October 2016, a chamber of that section delivered its judgment in the case.
Guido Raimondi (JudgeP): It held by four votes to three that there had been a violation of Article 6, paragraph 1.
Guido Raimondi (JudgeP): On 11 January 2017, the government requested that the case be referred to the ground chamber in accordance with Article 43 of the Convention.
Guido Raimondi (JudgeP): And the panel of the ground chamber accepted the request on 6 March 2017.
Guido Raimondi (JudgeP): The government are represented by their agent, Mrs. Štefica Stažnik assisted by Mrs. Nikolina Katić and Mrs. Mirjana  Konforta advisors.
Guido Raimondi (JudgeP): The applicant is represented by Mr. Ivica Ban, counsel.
Guido Raimondi (JudgeP): I welcome the representatives and the applicant in the name of the court.
Guido Raimondi (JudgeP): I also welcome groups of rapporteur judges from the Constitutional Court of Turkey and of ombudsmen from Bosnia and Herzegovina who are on a study visit to the court.
Guido Raimondi (JudgeP): Having consulted the agent of the government and the representative of the applicant, I have determined the order of addresses as follows.
Guido Raimondi (JudgeP): Mr. Ban for the applicant will speak first, and then Mrs. Stažnik for the government.
Guido Raimondi (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting from Croatian has been authorized for the benefit of the applicant's representative.
Guido Raimondi (JudgeP): And interpreting into Turkish and Bosnian has been authorized for the benefit of some of the groups of persons attending this hearing.
Guido Raimondi (JudgeP): And now I call Mr. Ban.
Guido Raimondi (JudgeP): Please, Mr. Ban, you have the floor.
AP1 (Applicant): Poštovani suci Velikog viječa suda, moje ime je Ivica Ban, odvjetnik sam iz Dubrovnika Republika Hrvatska.