TrustHLT/LaCour huggingface dataset:
GR1 (Government): The hardship described by the applicant of staying indoors in a village, not speaking Turkish and so on, does clearly not amount to a violation of Article 3.
GR1 (Government): Also the government would like to add to the information provided by the applicant that he lives in a Kurdish village and that he speaks Kurdish fluently, is also still entitled to, and he still receives his disability pension from Denmark, which is over 1,300 euros every month and after tax.
GR1 (Government): So 1,300 euros every month after tax.
GR1 (Government): The applicant also describes the difficulties and hardships he is facing as, I quote, mentally retarded, but here it's important to stress that according to the medical assessment already back in 2009, the applicant no longer meets the criteria for the diagnosis of mental retardation.
GR1 (Government): According to the latest medical assessments, the applicant suffers from paranoid schizophrenia, but he only has a mild intellectual disability and in addition a cannabis dependence.
GR1 (Government): Mr. President, that brings me to my next point,
GR1 (Government): the treatment criterion.
GR1 (Government): The government submits that besides ignoring the severe disease criterion, the chamber majority also broadens the scope of Article 3 in its assessment of the sufficient treatment upon return.
GR1 (Government): And as I mentioned initially, we believe this is another important issue raised by the case before us.
GR1 (Government): At the outset, let me stress that both the Danish courts and the chamber accepted the fact that the applicant would upon return to Turkey have access to the required medical treatment by way of medicine and psychiatric therapy.
GR1 (Government): And as just mentioned, the applicant also has the economic means to buy his medicine as he continues to receive his Danish disability pension every month.
GR1 (Government): In the government's opinion, it's therefore clear that Denmark was not required to obtain an individual guarantee from the Turkish authorities that the applicant would have access to the required medical and psychiatric treatment.
GR1 (Government): Instead, the critical point is whether Denmark should have obtained an individual assurance that upon the applicant's return to Turkey, and I quote, a regular and personal contact with him would be offered to him by the Turkish authorities.
GR1 (Government): The chamber majority found that it did amount to a violation of Article 3 that Denmark did not obtain such an assurance.
GR1 (Government): The majority stated that the return of the applicant to Turkey where he had no social network would inevitably cause, and I quote, would cause him additional hardship, end of quote.
GR1 (Government): And make it even more crucial that the applicant was provided with the necessary follow-up.
GR1 (Government): For that purpose, the applicant would, in the view of the majority, need at least assistance in the form of a regular and personal contact person.
GR1 (Government): The government is in line with the dissenting judges and would respectfully disagree with this reading of Article 3 and the relevant case law.
GR1 (Government): The reasons for this are the following.
GR1 (Government): First, there is no basis for assuming that the medical treatment provided in Turkey to mentally ill patients, including persons suffering from paranoid schizophrenia, is deficient, and that such persons will not receive the relevant treatment, including follow-up.
GR1 (Government): Second, even if we did assume that the applicant would not be provided with a contact person and the same extent of follow-up, that would not in itself be decisive.
GR1 (Government): The decisive question would remain whether the care available in the receiving state was, quote, sufficient and appropriate.
GR1 (Government): In the government's opinion, a contact person, as the one in the present case, was not in charge of the applicant's medication.
GR1 (Government): This constitutes a social measure that is not part of the medical treatment, the treatment required for returning a person to his country of origin.
GR1 (Government): A lack of an individual assurance that access to the contact person will be provided therefore cannot constitute degrading or inhuman treatment.
GR1 (Government): I will also note in this connection that according to Section 85 of the Danish Social Service Act, the municipality must offer assistance to persons in need of this because of significantly reduced physical or mental disabilities or special social problems.
GR1 (Government): This assistance covers a wide range of social and other support measures.
GR1 (Government): And while a person may in some cases be granted a contact person, this is not always the case.
GR1 (Government): Other relevant measures may be, for instance, counselling and help to carry out daily chores, etc.
GR1 (Government): And allow me also to underline that a contact person is not the same as a social security guardian, the role of which is described in the applicant's appendices.
GR1 (Government): If social measures such as a contact person should be considered part of the required medical treatment under Article 3, this would significantly lower the requirements of the Papuswili judgment.
GR1 (Government): And I note that similar concerns were raised by the chamber minority.
GR1 (Government): In addition, if the applicant would have been allowed to remain in Denmark, but a contact person had not been provided to him, this would not have amounted to a violation of Article 3.
GR1 (Government): And when this is the case, then the absence of obtaining an individual assurance from the Turkish authorities when being expelled cannot amount to a violation of Article 3.
GR1 (Government): A conclusion to that effect would not be in accordance with the court's case law, for example, Babar Ahmet and others versus the United Kingdom.
GR1 (Government): Such conclusion would in fact, as I will elaborate in the following, constitute a significant broadening of Article 3 into completely new ground and with far-reaching consequences for the contracting states.
GR1 (Government): Mr. President, to demonstrate this,
GR1 (Government): let me recall paragraph 189 of the Papuswili judgment.
GR1 (Government): Here, the court reiterated the well-established principle that the benchmark is not the level of care existing in the returning state or whether the care in the receiving state would be equivalent or inferior to that provided in the health care system of the returning state.
GR1 (Government): So the government finds that the majority's conclusion that a contact person constituted part of the required medical treatment deviates from this principle and entails a significant broadening of the scope of application of Article 3 and a broadening with no clear rationale or justification.
GR1 (Government): In the government's opinion, such a broadening would constitute a significant step towards making the Convention an instrument for alleviating socioeconomic and medical disparities between the contracting states.
GR1 (Government): And it would clearly go beyond the scope of the Convention.
GR1 (Government): The majority's interpretation would pave the way for a legal situation where in reality, the contracting states would only be able to remove mentally ill aliens to countries whose mental health care systems are organized in the same manner and reach the same level as that of the returning states.
GR1 (Government): The Grand Chamber's decision on this matter will therefore have significant practical implications due to different standards of treatment and different political priorities in the health care systems among contracting states.
GR1 (Government): Should the Grand Chamber uphold the majority's interpretation, this will significantly limit the possibilities of removing inter-alien, mentally ill, criminal aliens.
GR1 (Government): In this way, it will substantially restrict the right of contracting states to control the entry, residence and expulsion of aliens and to maintain public order and safety.
GR1 (Government): The government finds that such an outcome would not be consistent with the purpose of Article 3.
GR1 (Government): Now, this is a concern that a number of other contracting states have also expressed.
GR1 (Government): I refer to the written submissions from France, Germany, the Netherlands, Norway, Russia, Switzerland and the UK.
GR1 (Government): And I believe these submissions demonstrate the high importance of the Grand Chamber's judgment in this case to all contracting states.
GR1 (Government): So for the reasons that I have given, the government respectfully submits that the Grand Chamber should not find a violation of Article 3 in the present case.
GR1 (Government): I shall finally focus briefly on Article 8 of the Convention.
GR1 (Government): First, the government does not concess that the order to expel the applicant as a result of the revocation proceedings in 2015 interferes with his private life, as protected under Article 8, Paragraph 1 of the Convention.
GR1 (Government): However, the government maintains that the expulsion order from 2009 by the Supreme Court, as upheld during the revocation proceedings in 2015 by the High Court, was taken in accordance with the law and pursued a legitimate aim and as such meets the conditions of Article 8, Paragraph 2 of the Convention.
GR1 (Government): So the key question then is whether the interference was necessary in a democratic society.
GR1 (Government): The general principles applicable to the present case concerning the expulsion of a settled immigrant as the applicant are well established in the case law of the Court.
GR1 (Government): I refer, for example, to Maslow v. Austria.
GR1 (Government): According to the case law, very serious reasons are required to justify an expulsion and in the government's view, such serious reasons clearly are present in the case before us.
GR1 (Government): Let me add here that the Danish courts, both in the criminal proceedings when the expulsion order was issued in 2009 and in the revocation proceedings in 2015, conducted a full and thorough assessment of the proportionality of the expulsion order and they applied the relevant human rights standards in accordance with Article 8 of the Convention and the related case law.
GR1 (Government): So having balanced the applicant's rights against the state's interest in protecting public order and safety and preventing disorder and crime, the Danish courts concluded that the order to expel the applicant would not constitute a disproportionate interference with his right to respect for his private life.
GR1 (Government): Mr. President, having regard to the fundamental principles
GR1 (Government): on the supervisory function of the Court, it is the government's opinion that the Court should be reluctant to disregard the outcome of the assessment made by the Danish courts in this case.
GR1 (Government): As the Court has pointed out in several cases, including earlier the Court's judgment in the case of Ndidi v. UK,
GR1 (Government): the contracting states enjoy a certain margin of appreciation and it's not for the Court to substitute its conclusions for those of the domestic courts unless there are shown to be strong reasons for doing so.
GR1 (Government): The Danish government submits that no such strong reasons are present in the applicant's case.
GR1 (Government): Let me add that while it is true that the applicant was acquitted of punishment due to his mental state, he nevertheless constituted a continuing threat to public safety.
GR1 (Government): The government recalls in that connection that the applicant committed assault of a particularly crude, brutal and dangerous nature under highly aggravating circumstances, which led to the victim's death.
GR1 (Government): I refer the Court to the case of Kahn v. Germany.
GR1 (Government): In this case, the Chamber found that while the applicant, who had committed a crime in a state of mental incapacity, was not criminally guilty of the offence, there was nevertheless a continuing threat to public safety and the case was referred to the Grand Chamber.
GR1 (Government): So in light of all the aspects that I've just mentioned, it is the view of the Danish government that a fair balance was struck within the state's margin of appreciation in the applicant's case.
GR1 (Government): And on this basis, the Government of Denmark respectfully submits that the Court should find that there has been no violation of Article 8 in the present case.
GR1 (Government): Could I just very briefly, in conclusion, add a comment to what Applicant's Council mentioned about the Catt decision?
GR1 (Government): The mentioned Catt decision is, in the Government's opinion, not relevant for this case.
GR1 (Government): The Catt case concerned an Eritrean asylum seeker who had been exposed to torture in Eritrea and the transfer of him to Italy under the Dublin Regulation.
GR1 (Government): He was traumatised and at the time, there was a risk that he would commit suicide.
GR1 (Government): It also appeared from the case that in Italy, he would most likely not have access to specialised medical and psychiatric treatment.
GR1 (Government): So the case, therefore, cannot, in our opinion, be compared to the present case.
GR1 (Government): And with that, I will conclude my submission.
Robert Spano (JudgeP): Thank you very much indeed, Mr. Braad.
Robert Spano (JudgeP): Both parties have now submitted their initial observations.
Robert Spano (JudgeP): I now turn to my colleagues on the bench for their questions.
Robert Spano (JudgeP): Judge Pastor Vilanova, the party should note that Judge Pastor Villanueva will pose his question in French.
Robert Spano (JudgeP): S'il vous plait.
Pere Pastor Vilanova (Judge): Merci beaucoup, M. le Président.
Pere Pastor Vilanova (Judge): Je vais poser 2 questions.
Pere Pastor Vilanova (Judge): Elles sont destinées principalement aux requérants.
Pere Pastor Vilanova (Judge): Bien entendu, rien n'empêche le gouvernement de donner sa réponse.
Pere Pastor Vilanova (Judge): En ce qui concerne la 1re question, c'est la suivante.
Pere Pastor Vilanova (Judge): Quelle était l'implication exacte du requérant dans l'agression du 29 mai 2006?
Pere Pastor Vilanova (Judge): Je vous prie de donner tous les détails possibles quant à son degré de participation personnelle dans ce délit.
Pere Pastor Vilanova (Judge): Et la 2e question est la suivante.
Pere Pastor Vilanova (Judge): Est-ce que le requérant avait la possibilité d'obtenir la nationalité danoise avant sa condamnation pénale de 2009?
Pere Pastor Vilanova (Judge): Si tel était le cas, pourquoi n'a-t-il pas exercé ce droit?
Pere Pastor Vilanova (Judge): Je vous remercie, M. le Président.
Robert Spano (JudgeP): Thank you very much indeed, Vice President Kjølbro.
Jon Fridrik Kjølbro (Judge): Thank you, Mr. President.
Jon Fridrik Kjølbro (Judge): I do have three questions.
Jon Fridrik Kjølbro (Judge): The first one is addressed to the government.
Jon Fridrik Kjølbro (Judge): The government is arguing that the Papashvili test, as reflected in paragraph 183, does not apply and cannot be transposed to persons suffering from mental illnesses, as, in the view of the government, it only applies to persons suffering from physical illnesses.
Jon Fridrik Kjølbro (Judge): Assuming that the government is correct in its assumption, what is or should, in the view of the government, be the relevant test to be performed by the court?
Jon Fridrik Kjølbro (Judge): Is the protection under Article 3 to be limited to cases where there is a risk of self-harm or suicide?
Jon Fridrik Kjølbro (Judge): I did not find the government's position very clear on this point.
Jon Fridrik Kjølbro (Judge): My second question, both parties, as well as all the third parties intervening before this court, have addressed and discussed the test established in paragraph 183 of the Papashvili judgment, including how to apply it to persons suffering from mental illnesses.
Jon Fridrik Kjølbro (Judge): From some of the interventions, in particular the intervention from the UK government, referring to the judgment from the UK Supreme Court, it transpires that the Papashvili test, as formulated in paragraph 183, may give rise to some uncertainty when it comes to the right interpretation, and therefore also when it comes to the correct application of the test.
Jon Fridrik Kjølbro (Judge): Therefore, my question is, in the view of the government, is that does the test in practice, or has the test in practice given rise to problems of interpretation and in the affirmative, which elements of the test have given rise to uncertainty?
Jon Fridrik Kjølbro (Judge): My third and last question is to both parties.
Jon Fridrik Kjølbro (Judge): In this case, the question of removal or expulsion of a foreigner suffering from an illness arose in the context of criminal proceedings, more specifically when the domestic courts, under section 58 of the Aliens Act, were called upon to assess amending the committal order and at the same time the question of revocation of the expulsion order.
Jon Fridrik Kjølbro (Judge): In other words, in this case, Article 3 concerns a foreigner with a prior lawful stay in Denmark.
Jon Fridrik Kjølbro (Judge): However, the issue of removal of a foreigner suffering from an illness, be it physical or mental, may also arise outside the context of criminal proceedings, in particular when assessing requests for residence permits under section 9B of the Aliens Act, based on humanitarian grounds, which, according to the preparatory works as well as domestic practice, would include an assessment in conformity with Article 3 of the Convention, including Pappersville.
Jon Fridrik Kjølbro (Judge): Now my question, is it correctly understood that whatever the court may say in this case concerning the expulsion of a foreigner with a prior lawful stay would also apply equally to cases concerning requests for residence permits, I'm referring to persons without a prior lawful stay in Denmark?
Jon Fridrik Kjølbro (Judge): Thank you.
Robert Spano (JudgeP): Thank you very much indeed, Judge O’Leary.
Síofra O’Leary (Judge): Judge Kjølbro's questions related mainly to Article 3.
Síofra O’Leary (Judge): Mine may be of relevance if the court undertakes an analysis of Article 8.
Síofra O’Leary (Judge): In the applicant's case, a permanent ban on reentry was imposed.
Síofra O’Leary (Judge): And my questions are as follows.
Síofra O’Leary (Judge): Is there provision under Danish law for the application of a temporary ban on reentry?
Síofra O’Leary (Judge): And if so, in what circumstances would it be applied?
Síofra O’Leary (Judge): And could the High Court in 2015 have amended the permanent reentry ban imposed by the High Court in 2008 to a temporary one?
Síofra O’Leary (Judge): And if so, on what basis?
Síofra O’Leary (Judge): My second question, and these questions are for both parties, is what was the degree of the applicant's dependence on his family in Denmark when he became an outpatient from 2014?
Síofra O’Leary (Judge): Where did he live?
Síofra O’Leary (Judge): With whom?
Síofra O’Leary (Judge): We know now from the submissions of the Danish government that he continued to receive a disability pension.
Síofra O’Leary (Judge): But was he otherwise socially or financially dependent on his family?
Síofra O’Leary (Judge): And the reason for this question is because I didn't find these factual details elaborated in the decision of the High Court of 2015.
Robert Spano (JudgeP): Thank you very much, Judge Jelić.
Ivana Jelić (Judge): I have to give up my question because it was actually posed by...
Ivana Jelić (Judge): Yes, thank you.
Robert Spano (JudgeP): I do not see any more requests for...
Robert Spano (JudgeP): Judge Schembri Orland, please.
Lorraine Schembri Orland (Judge): Thank you very much.
Lorraine Schembri Orland (Judge): I have two questions which are on a factual nature, which can be addressed to both representatives, both parties.
Lorraine Schembri Orland (Judge): The first question is, the applicant was assigned a curator at Liethem in the domestic proceedings for the revocation of the expulsion order.
Lorraine Schembri Orland (Judge): In domestic law, in this case, did this mean that the court considered he lacked mental and legal capacity to take decisions and to defend himself in these proceedings?
Lorraine Schembri Orland (Judge): The second question concerns some factual discrepancy, which I found in the assessment of the psychiatrists at the first stage during the criminal conviction proceedings and in the revocation proceedings.
Lorraine Schembri Orland (Judge): The psychiatrists in the revocation proceedings concluded that the applicant was suffering from paranoid schizophrenia during the period of commission of the crime.
Lorraine Schembri Orland (Judge): This is in contrast with the report of the medical legal counsel at paragraphs nine and 10 of the chamber judgment, which had been submitted to the court for the purposes of the criminal proceedings leading up to the conviction.
Lorraine Schembri Orland (Judge): The first report had concluded that the applicant did not suffer from a mental disorder at the time of the commission of the crime, that he was mildly mentally retarded, and that his complaints of auditory hallucinations could be regarded as simulation.
Lorraine Schembri Orland (Judge): So my question is this, would it have been possible under Danish law to order the applicant's expulsion had the correct diagnosis of diminished mental capacity been submitted at the stage of the proceedings leading to his conviction?
Lorraine Schembri Orland (Judge): Thank you.
Robert Spano (JudgeP): I then suggest we withdraw for 25 minutes.
Robert Spano (JudgeP): We will then reconvene at exactly 11:40 this morning with the buzzer.
Robert Spano (JudgeP): Then the parties will have the opportunity to respond to the questions posed by the judges.
Robert Spano (JudgeP): We now begin with the replies of the parties.
Robert Spano (JudgeP): I give the floor to the representative of the applicant.
AP2 (Applicant): Mr. President, distinguished judges,
AP2 (Applicant): I'm the co-counsel for Mr. Safran,
AP2 (Applicant): and I have known Mr. Safran as a client for 14 years.
AP2 (Applicant): I will answer the two questions from the distinguished judge, Pera Villanueva, from Andorra.
AP2 (Applicant): The first question was, what was Mr. Safran's role in the crime
AP2 (Applicant): which took place in May 2006?
AP2 (Applicant): I can refer to the annex one from the government.
AP2 (Applicant): That is the sentence ruled by the Court of Appeal.
AP2 (Applicant): And in that, there is a short description of what activities took place, and it was a number of people, approximately 10 persons, who was attacking another person.
AP2 (Applicant): This was a joint activity, so to speak.
AP2 (Applicant): It was around 10 persons, and they never found out who did what.
AP2 (Applicant): Everybody ran away.
AP2 (Applicant): Only one person was caught by the police, and that was Mr. Safran.
AP2 (Applicant): So, therefore, you didn't try to state what was his activity, but he was joined as part of a group of approximately 10 persons.
AP2 (Applicant): At that time, back in 2006, when this took place, Mr. Safran couldn't have applied for Danish citizenship.
AP2 (Applicant): That was, among other things, because he already, in January 2001, had been sentenced in a criminal case.
AP2 (Applicant): So, therefore, it was out of question that he could have had Danish citizenship back at that time.
AP2 (Applicant): So, I hope that was an answer for the two questions.
AP2 (Applicant): And then I'll pass the floor to Mr. Trier, who will answer the other questions.
AP1 (Applicant): Mr. President, I turn to the questions by Judge Kjølbro.
AP1 (Applicant): The main question for me was whether humanitarian residents in Denmark, 9b of the Aliens Act, whether that would also, it would have a consequence for that provision in Denmark.
AP1 (Applicant): If, if sovereign majority is confirmed by the grand chamber.