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RULE 39 - URGENT CASE CONCERNING REPRODUCTIVE RIGHTS The Registrar European Court of Human Rights Council of Europe F-67075 Strasbourg CEDEX France BY COURIER 14 September 2016 Contact Person: Anton Burkov 620075, Russia, Yekaterinburg, Turgenev Str., 11-1 Dear Sir, Korolevy v. Russia No 47668/15 submitted 18 September 2015 Application under Rule 39 of the Rules of the Court For urgent measures to preserve ability to conceive children 1. Introduction 1. This is an application for interim measures by the Applicants in the above case pending before the Court. The First Applicant is Nikolay Korolev (born 31 March, 1981 in Moscow), currently a life prisoner in the correctional colony No 18 in the village of Harp in the Yamalo-Nenets Autonomous Okrug (YaNAO). The Second Applicant is the wife of the First Applicant, Veronika Koroleva (born 8 August 1981). She lives in Moscow. 2. The main application before the Court, submitted on 18 September 2015, concerns Veronika Koroleva's request to the Russian prison authorities holding her husband in custody to facilitate the conception of a child by her together with her husband. 3. The urgency arises out of the fact that decreasing fertility with age will make it less and less likely with the passage of time that Veronika Koroleva will be capable of conceiving a child by her husband. Principal Facts of the Case 1. Nikolay Korolev was convicted on 16 May 2008 by the Moscow City Court and sentenced to life imprisonment under a special regime. Although he was first taken into custody in 2006, he began to serve the special regime sentence in April 2009 upon his arrival to the correctional colony. 2. Veronika Koroleva met her husband in Autumn 2004 in Moscow. Their marriage was registered with the state authorities on 9 September 2009 at Harp. Her husband is currently aged 35 and she is 34. 3. Because her husband is subject to the `life term special regime', with `strict conditions', under the Criminal Execution Code of the Russian Federation (CEC) he is not permitted to receive long visits from his wife. At present, he is allowed two visits per year, each of no longer than four hours without any physical contact. Prisoners subject to a CEC regime other than one with strict conditions, are allowed longer visits (long visits or conjugal meetings) of three days. Veronika Koroleva will be permitted to see her husband for two conjugal meetings per year after he has served a minimum of ten years under strict conditions. This will happen provided that he is then moved to ordinary conditions of detention, which in turn relies on him having acquired no record of administrative violations. The decision to change the regime based on these rules is made by the authorities of the correctional colony at their discretion. 4. Therefore, the earliest that Veronika Koroleva's husband will be eligible for conjugal visits will be in April 2019. At that time they will both be aged 38. However, for the reasons outlined above, any change in his conditions of detention to permit conjugal visits is decided upon by the authorities of the correctional colony and may therefore occur at a later date than this, or possibly may never occur. 5. According to data from Russian Federal Agency of State Statistics from 2010, the average age of a mother at first birth is 22.5 years, at birth of the second child of 26.6 years, and at the birth of the third child, 28.6 years^ (Annex 1). It is well-established that fertility decreases with age: Women's fertility begins to decline in the late 20s with substantial decreases by the late 30s. Fertility for men is less affected by age, but shows significant decline by the late 30s (Annex 2). 6. Veronika Koroleva wants to conceive a child with her husband. There is no prospect of this happening via natural means of conception, at least not before her husband is permitted conjugal visits which will not be before 2019 at the earliest. Even then, there is, in reality, very little chance of conception occurring. The conjugal visits will take place just twice a year, at times determined by the authorities of the correctional colony. Therefore there is no guarantee that those conjugal meetings will coincide with the optimal phases of Veronika Koroleva's menstrual cycle during which she will be at her most fertile and be most likely to conceive a child. Studies have shown that nearly all pregnancies occur within a narrow fertile window of around 6 days (Annex 2). 7. Nikolay Korolev has suffered from a number of chronic infections during his imprisonment, including, most seriously, hepatitis C (see extracts from medical records at Annex 3). Aside from any potential reduction in his fertility as a result, if infections persist, there is a risk that they could be sexually transmitted to Veronika, or might harm an unborn child. Any conception could only follow a period of medical recovery for Nikolay Korolev and testing of the quality of his genetic material prior to insemination. Therefore, Nikolay Korolev's general state of health and history of chronic infection during imprisonment further reduce the already very limited prospects of Veronika Koroleva conceiving a child via natural means, even assuming conjugal visits are eventually permitted. 8. Veronika Koroleva has sought to arrange conception using assisted reproductive technology (ART), but this has been blocked by the Russian prison authorities for a number of reasons and subsequent national legal challenges have been unsuccessful. The exhaustion of national legal remedies caused her to file an application to the ECtHR on 10 September 2015. 9. On the basis of the decision in the case of Khoroshenko v Russia^, Veronika Koroleva has sought to obtain permission for conjugal visits, including via the Russian courts. On 6 October 2015 Veronika and Nikolay Korolev appealed to the head of the correctional colony No18 asking for conjugal meetings based on Article 8 of the European Convention on Human Rights and Khoroshenko v Russia (Annex 4). On 2 November 2015 their application was denied on the basis that it was "impractical" to allow conjugal meetings as the Russian law does not allow them at this point (Annex 5). Convention based arguments of the applicants were ignored. On 13 December 2015 the Korolevs filed an administrative law suit to the Babushkinskiy District Court of Moscow against the head of the correctional colony No.18 and the correctional colony no 18 itself (Annex 6). The Applicants asked the court to rule that decision of the head of the correctional colony No.18 was illegal and in violation of Article 8 of the Convention as understood in Khoroshenko v Russia. They also sought an order requiring the head of the correctional colony No.18 to allow conjugal meetings. On 9 February 2016, although the court ruled that the head of the correctional colony No.18 had acted illegally, the court declined to order the head of the correctional colony No.18 to allow conjugal meetings (Annex 7). On 4 July 2016 The Moscow City Court overruled the Babushkinskiy district court judgment and gave its own judgment to reject the Korolevs' application in its entirety (see Annex 8). 10. There are therefore no existing domestic remedies available in terms of seeking interim measures to preserve the Korolevs' chances of conceiving a child. Risk of irreversible harm if interim measures not granted 1. It is accepted that if, as a result of this application for interim measures, the Russian prison authorities are ordered to accede to Veronika Koroleva's request for conception via ART to be facilitated, this will effectively resolve the issue in the main proceedings in fact, if not in principle. 2. However, this is nevertheless necessary because if Veronika Koroleva is not now permitted to attempt to conceive a child by her husband using ART, there is a high probability that the chance to conceive a child at all will disappear, causing irreparable damage to Veronika Koroleva's family life. Even if the Korolevs are permitted to have conjugal meetings in 2019 or even later, attempts to conceive naturally via sexual intercourse will only take place twice a year and not necessarily at the times best suited for conception. 3. These factors represent a real risk of serious and irreversible harm to the Korolevs' family life, which is meant to be protected under Article 8 of the Convention. 4. In the Court's case law interim measures under Rule 39 have typically been granted when the risk of irreparable harm is also "imminent". This is most obvious in deportation cases where the affected individual will be returned to a country where he or she faces possible risk to life or liberty. However, it is submitted that other examples from the case law suggest that the concept of "imminence" can extend to other situations that are more analogous to that which Veronika Koroleva and her husband find themselves in. 5. Thus the Court has ruled that interim measures were necessary to preserve the health of prisoners who were not being treated appropriately for their illnesses during their imprisonment^. The deteriorating ability to conceive a child may be likened to an illness that worsens, with potentially irreversible and serious consequences, if left unaddressed. As set out above, both the fertility of Veronika Koroleva and her incarcerated husband are declining, and will at some stage decline past the point where the conception of a child is realistically possible, and will be particularly unlikely if contact is limited to two long visits a year, which is the best case scenario that will potentially apply from April 2019. In reality, if no action is taken now to facilitate conception via ART, the chance for Veronika Koroleva to conceive a child by her husband will be gone. 6. To order to the Russian prison authorities to transport Nikolay Korolev to Yekaterinburg and to carry out all procedures necessary for conducting ART in a duly licensed medical facility to permit Veronika Koroleva to conceive a child by her husband. 7. Alternatively, to avoid pre-judging the outcome of the substantive application, the court is invited to order that the ability of the Veronika Koroleva to reproduce be preserved via the recovery and preservation (i.e. by freezing and storage) of sufficient genetic material from her and from her husband to enable ART to take place at a later date. This would be in line with the Court's decision in Evans v the United Kingdom preventing the destruction of frozen embryos pending the outcome of the case. Here, instead of frozen embryos being saved from destruction, it is the deteriorating fertility of Veronika Koroleva and her husband which must be preserved. The Court is kindly invited to inform the applicant's representatives of its decision by e-mail, as it will not be practicable to monitor constantly incoming fax messages. Yours faithfully, Anton Burkov The applicants' legal representative Annexes: 1. Data from Russian Federal Agency of State Statistics from 2010 http://www.gks.ru/free_doc/2010/family.htm 2. Dunson et al., Changes with age in the level and duration of fertility in the menstrual cycle, Hum. Reprod. (2002) 17 (5): 1399-1403:http://humrep.oxfordjournals.org/content/17/5/1399.full 3. Medical records of Nikolay Korolev; 4. Application dated 6 October 2015 by Veronika and Nikolay Korolev to the head of the correctional colony No.18 asking for conjugal meetings based on Article 8 of the European Convention on Human Rights and Khoroshenko v Russia; 5. Letter dated 2 November 2015 denying the Korolevs'application; 6. The Korolevs' administrative law suit dated 13 December 2015 to the Babushkinskiy District Court of Moscow; 7. Decision dated 9 February 2016 by the Babushkinskiy district court of Moscow; 8. Decision dated 4 July 2016 by The Moscow City Court overruling the Babushkinskiy district court judgment; 9. Power of Attorney.
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