Судебное дело "О праве пожизненно заключенного и его жены на проведение искусственного зачатия"
14.09.2016
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
[2]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:[3]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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