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Заявление в соответствии с правилом 39 Регламента ЕСПЧ о применении срочных мер, чтобы сохранить способность к зачатию детей (Королевы против России, 47668/15) - Application under Rule 39 of the Rules of the Court for urgent measures to preserve ability to conceive children (Korolevy v. Russia, No 47668/15)

 

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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