No violation of Art. 2;No violation of Art. 8;No violation of Art. 14+8

Anatoly Kovler;András Baka;Antonella Mularoni;Christos Rozakis;Dean Spielmann;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Ljiljana Mijovic;Margarita Tsatsa-Nikolovska;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky;Volodymyr Butkevych

The applicant was born in DATE and lives in GPE .

The facts , as found by Mr Justice PERSON ( “ Wall J ” ) , who heard the parties’ oral evidence ( see paragraph CARDINAL below ) , are as follows .

On DATE the applicant and her partner , J. ( born in DATE ) , commenced treatment at ORG ( “ the clinic ” ) . The applicant had been referred for treatment at the clinic DATE , when she was married , but had not pursued it because of the breakdown of her marriage .

On DATE the applicant and J. were informed , during an appointment at the clinic , that preliminary tests had revealed that the applicant had serious pre - cancerous tumours in both ovaries , and that her ovaries would have to be removed . They were told that because the tumours were growing slowly it would be possible first to extract some eggs for in vitro fertilisation ( “ ORG ” ) , but that this would have to be done quickly .

The consultation of DATE lasted TIME in total . A nurse explained that the applicant and PERSON would each have to sign a form consenting to the ORG treatment and that , in accordance with the provisions of ORG “ the DATE LAW ) , it would be possible for either to withdraw his or her consent at any time before the embryos were implanted in the applicant ’s uterus ( see paragraph DATE below ) . The applicant asked the nurse whether it would be possible to freeze her unfertilised eggs , but was informed that this procedure , which had a much lower chance of success , was not performed at the clinic . At that point PERSON reassured the applicant that they were not going to split up , that she did not need to consider the freezing of her eggs , that she should not be negative and that he wanted to be the father of her child .

Thereafter , the couple entered into the necessary consents , by signing the forms required by LAW ( see paragraph CARDINAL below ) .

Immediately beneath the title to the form appeared the following words :

“ NB – do not sign this form unless you have received information about these matters and have been offered counselling . You may vary the terms of this consent at any time except in relation to sperm or embryos which have already been used . Please insert numbers or tick boxes as appropriate . ”

J. ticked the boxes which recorded his consent to use his sperm to fertilise the applicant ’s eggs in vitro and the use of the embryos thus created for the treatment of himself and the applicant together . He further ticked the box headed “ Storage ” , opting for the storage of embryos developed in vitro from his sperm for the maximum period of DATE and also opted for sperm and embryos to continue in storage should he die or become mentally incapacitated within that period . The applicant signed a form which , while referring to eggs rather than sperm , essentially replicated that signed by PERSON , she ticked the boxes providing for the treatment of herself and for the treatment “ of myself with a named partner . ”

On DATE the couple attended the clinic and CARDINAL eggs were harvested and fertilised . CARDINAL embryos were created and consigned to storage . On DATE the applicant underwent an operation to remove her ovaries . She was told that she should wait DATE before attempting to implant any of the embryos in her uterus .

In DATE the relationship broke down . The future of the embryos was discussed between the parties . On DATE J. wrote to the clinic to notify it of the separation and to state that the embryos should be destroyed .

The clinic notified the applicant of ORG withdrawal of consent to further use of the embryos and informed her that it was now under a legal obligation to destroy them , pursuant to paragraph CARDINAL(CARDINAL ) of Schedule DATE CARDINAL Act ( see paragraph CARDINAL below ) . The applicant commenced proceedings in ORG , seeking an injunction requiring ORG to restore his consent to the use and storage of the embryos and a declaration , inter alia , that he had not varied and could not vary his consent of DATE . Additionally she sought a declaration of incompatibility under LAW DATE to the effect that section CARDINAL of , and Schedule CARDINAL to , LAW breached her rights under LAW , CARDINAL and DATE of the Convention . She also pleaded that the embryos were entitled to protection under ORG and DATE . Interim orders were made requiring the clinic to preserve the embryos until the end of the proceedings .

The trial judge , Wall J , heard the case over DATE and took evidence from , among others , the applicant and J. On DATE , in a CARDINAL-page judgment ( PERSON v. ORG and Others [ DATE ] EWHC CARDINAL ( Fam ) ) , he dismissed the applicant ’s claims .

He concluded that under the terms of LAW , and as a matter of public policy , it had not been open to J. to give an unequivocal consent to the use of the embryos irrespective of any change of circumstance , and that , as a matter of fact , PERSON had only ever consented to his treatment “ together ” with the applicant , and not to her continuing treatment on her own in the event that their relationship ended . Wall J thus rejected the applicant ’s submission that PERSON was estopped from withdrawing his consent , finding that both the applicant and PERSON had embarked on the treatment on the basis that their relationship would continue . On DATE J. had been doing his best to reassure the applicant that he loved her and wanted to be the father of her children ; giving a truthful expression of his feelings at that moment , but not committing himself for all time . Wall J observed that in the field of personal relationships , endearments and reassurances of this kind were commonplace , but they did not – and could not – have any permanent , legal effect . In undergoing ORG with ORG , the applicant had taken the only realistic course of action open to her . Wall J continued :

“ However , even if I am wrong about that , and even if an estoppel is capable of existing in the face of the LAW , I do not , for the reasons I have given , think it would be unconscionable to allow [ J. ] to withdraw his consent . It is a right which the LAW gives him within the clear scheme operated by ORG . It was the basis upon which he gave his consent on DATE . It is perfectly reasonable for him , in the changed circumstances which appertain , not to want to father a child by PERSON . ”

As to the applicant ’s Convention claims , Wall J held in summary that an embryo was not a person with rights protected under the ORG , and that the applicant ’s right to respect for family life was not engaged . He accepted that the relevant provisions of LAW interfered with the private life of both parties , but held that it was proportionate in its effect , the foundation for the legislation being a treatment regime based on the twin pillars of consent and the interests of the unborn child . He considered it entirely appropriate that the LAW required couples embarking on ORG treatment to be in agreement about the treatment , and permitted either party to withdraw from it at any time before the embryo was transferred into the woman .

Wall J emphasised that the provisions of Schedule QUANTITY ( see paragraph CARDINAL below ) applied equally to all patients undergoing ORG treatment , irrespective of their sex , and concluded with an illustration of how the requirement for joint consent could similarly affect an infertile man .

“ If a man has testicular cancer and his sperm , preserved prior to radical surgery which renders him permanently infertile , is used to create embryos with his partner ; and if the couple have separated before the embryos are transferred into the woman , nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her . The statutory provisions , like Convention rights , apply to men and women equally . ”

NORP The applicant ’s appeal to ORG was dismissed in a judgment delivered on DATE ( PERSON v. Amicus ORG [ DATE ] EWCA Civ CARDINAL ) .

The court held that the clear policy of LAW was to ensure the continuing consent of both parties from the commencement of treatment to the point of implantation of the embryo , and that “ the court should be extremely slow to recognise or to create a principle of waiver that would conflict with the parliamentary scheme ” . Like Wall J , ORG found that PERSON had only ever consented to undergoing “ treatment together ” with the applicant , and had never consented to the applicant using the jointly created embryos alone . Once the relationship had broken down , and PERSON had indicated that he did not wish the embryos to be preserved or used by the applicant , they were no longer being treated “ together ” . The court rejected the applicant ’s argument that J. had concealed his ambivalence , thereby inducing her to go forward with him into couple treatment , holding this to be an unjustified challenge to the finding of the trial judge who had had the obvious advantage of appraising the oral evidence of the applicant , PERSON , and the other witnesses ( see paragraph CARDINAL above ) . ORG was also informed by ORG counsel that ORG clear position in withdrawing his consent was CARDINAL of fundamental rather than purely financial objection .

While there was an interference with the private lives of the parties , ORG Justices PERSON and PERSON found it to be justified and proportionate , for the following reasons .

“ The less drastic means contended for here is a rule of law making the withdrawal of [ J. ’s ] consent non - conclusive . This would enable [ the applicant ] to seek a continuance of treatment because of her inability to conceive by any other means . But unless it also gave weight to [ J. ’s ] firm wish not to be father of a child borne by [ the applicant ] , such a rule would diminish the respect owed to his private life in proportion as it enhanced the respect accorded to hers . Further , in order to give it weight the legislation would have to require the [ ORG ] or the clinic or both to make a judgment based on a mixture of ethics , social policy and human sympathy . It would also require a balance to be struck between CARDINAL entirely incommensurable things . ...

... The need , as perceived by ORG , is for bilateral consent to implantation , not simply to the taking and storage of genetic material , and that need can not be met if CARDINAL of the consent is no longer effective . To dilute this requirement in the interests of proportionality , in order to meet [ the applicant ’s ] otherwise intractable biological handicap , by making the withdrawal of the man ’s consent relevant but inconclusive , would create new and even more intractable difficulties of arbitrariness and inconsistency . The sympathy and concern which anyone must feel for [ the applicant ] is not enough to render the legislative scheme ... disproportionate . ”

Lady ORG stated , by way of introduction :

“ The DATE Act inevitably uses clinical language , such as gametes and embryos . But it is clear that LAW is concerned with the very emotional issue of infertility and the genetic material of CARDINAL individuals which , if implanted , can lead to the birth of a child . ... Infertility can cause the woman or man affected great personal distress . In the case of a woman , the ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life . It goes to their sense of identity and to their dignity . ”

She continued :

“ Like PERSON and PERSON , I consider that the imposition of an invariable and ongoing requirement for consent in LAW in the present type of situation satisfies LAW . ... As this is a sensitive area of ethical judgment , the balance to be struck between the parties must primarily be a matter for ORG has taken the view that no one should have the power to override the need for a genetic parent ’s consent . The wisdom of not having such a power is , in my judgment , illustrated by the facts of this case . The personal circumstances of the parties are different from what they were at the outset of treatment , and it would be difficult for a court to judge whether the effect of [ J. ’s ] withdrawal of his consent on [ the applicant ] is greater than the effect that the invalidation of that withdrawal of consent would have on [ J. ] . The court has no point of reference by which to make that sort of evaluation . The fact is that each person has a right to be protected against interference with their private life . That is an aspect of the principle of self - determination or personal autonomy . It can not be said that the interference with [ J. ’s ] right is justified on the ground that interference is necessary to protect [ the applicant ’s ] right , because her right is likewise qualified in the same way by his right . They must have equivalent rights , even though the exact extent of their rights under LAW has not been identified .

... The interference with [ the applicant ’s ] private life is also justified under LAW because , if [ the applicant ’s ] argument succeeded , it would amount to interference with the genetic father ’s right to decide not to become a parent . Motherhood could surely not be forced on [ the applicant ] and likewise fatherhood can not be forced on [ J. ] , especially as in the present case it will probably involve financial responsibility in law for the child as well . ”

On the issue of discrimination , ORG Justices PERSON and PERSON considered that the true comparison was between women seeking ORG treatment whose partners had withdrawn consent and those whose partners had not done so ; Lady ORG considered that the real comparators were fertile and infertile women , since the genetic father had the possibility of withdrawing consent to ORG at a later stage than in ordinary sexual intercourse . The CARDINAL judges were nevertheless in agreement that , whatever comparators were chosen , the difference in treatment was justified and proportionate under LAW same reasons which underlay the finding of no violation of LAW . ORG further refused leave to appeal against ORG finding that the embryos were not entitled to protection under LAW , since under domestic law a foetus prior to the moment of birth , much less so an embryo , had no independent rights or interests .

On DATE ORG refused the applicant leave to appeal against ORG judgment .

The birth of the first child from ORG in DATE prompted much ethical and scientific debate in GPE , which in turn led to the appointment in DATE of ORG under the chairmanship of the philosopher Dame PERSON to “ consider recent and potential developments in medicine and science related to human fertilisation and embryology ; to consider what policies and safeguards should be applied , including consideration of the social , ethical and legal implications of these developments ; and to make recommendations ” .

The ORG reported in DATE ( Cmnd CARDINAL ) . At that time , the technique of freezing human embryos for future use was in its infancy , but the ORG noted that it had already occurred and had resulted in CARDINAL live birth , and recommended that clinical use of frozen embryos should continue to be developed under review by the licensing body ( see paragraph CARDINAL of the report ) . It went on , however , to recognise the potential problems arising from the possibility of prolonged storage of human embryos , and recommended that a couple should be permitted to store embryos for their own future use for a maximum of DATE , after which time the right of use or disposal should pass to the storage authority ( paragraph CARDINAL ) . It further recommended that where , as a result , for example , of marital breakdown , a couple failed to agree how the shared embryo should be used , the right to determine the use or disposal of the embryo should pass to the storage authority ( paragraph CARDINAL ) . Consistent with its view that there should be no right of ownership in a human embryo ( paragraph CARDINAL ) , ORG did not consider that CARDINAL party to the disagreement should be able to require use of the embryo against the wishes of the other .

ORG recommendations , so far as they related to ORG treatment , were set out in a Green ( consultation ) Paper issued for public consultation . It was noted in the Green Paper ( at paragraph CARDINAL ) that few comments had been received about the ORG ’s recommendation that the storage authority should assume the rights of use or disposal of an embryo where there was no agreement between the couple , and stressed that although this situation was unlikely to arise very often it was important that there should be a “ clear basis ” for its resolution .

After receipt of representations from interested parties , the proposals on ORG were included in a ORG ( report ) , ORG : ORG , published in DATE ( Cm CARDINAL ) . The White Paper recorded ORG recommendation that the right of use or disposal of a frozen embryo should pass to the storage authority in the event of disagreement between the couple concerned ( paragraphs CARDINAL ) , but continued :

“ Broadly , those who believe storage should be permitted were content with the ORG recommendations . There were some , however , who considered that the ‘ storage authority’ should not have the right of use or disposal unless specifically granted this by the donors . The Government shares this latter view and has concluded that the law should be based on the clear principle that the donor ’s wishes are paramount during the period in which embryos or gametes may be stored ; and that after the expiry of this period , they may only be used by the licence holder for other purposes if the donor ’s consent has been given to this . ”

The White Paper indicated the ORG ’s decision that the maximum storage period for embryos should be DATE ( paragraph DATE ) . Then , in a section entitled “ ORG ’s Consent ” , it set out the policy that a donor should have the right to vary or withdraw consent to the transfer of an embryo to a woman at any time before the embryo was used :

“ CARDINAL . The complexities connected with storage underline the importance of ensuring that , when couples embark on ORG treatment , or when gametes are being donated , the individuals involved have given their consent to the uses to which their gametes or embryos will be put .

The PERSON will provide that gametes or embryos may only be stored with the signed consent of the donors ; and may be used only by the licence holder responsible for storage for the purposes specified in that consent ( e.g. for therapeutic treatment , [ or for research ] ) . Those giving consent should be provided with information about the techniques for which their gametes / embryos might be used and about the legal implications of their decision . As a matter of good practice , counselling should also be available to them .

Donors would have the right to vary or withdraw their consent before the gametes / embryos were used , but the onus would be on them to notify any change to the licence holder . A licence holder receiving notice of such a change will have a duty to inform any other licence holder to whom he has supplied the donor ’s gametes . ( This situation might arise , for example , if a sperm bank supplied sperm to CARDINAL or more treatment centres . ) In the absence of any notification to the contrary , or notification of death , the licence holder must assume that the original consent still holds , and must act accordingly during the storage period . When this ends , he may only use or dispose of the embryos or gametes in accordance with the specified wishes of the donors . If these are not clear , the embryo or gametes should be removed from storage and left to perish .

As far as embryos are concerned , these may not be implanted into another woman , nor used for research , nor destroyed ( prior to the expiry of the storage time limit ) in the absence of the consent of both donors . If there is disagreement between the donors the licence holder will need to keep the embryo in storage until the end of the storage period , after which time , if there is still no agreement , the embryo should be left to perish . ”

Following further consultation , ORG and Embryology Bill DATE was published , and passed into law as ORG Embryology Act DATE . The PERSON substantially reflected the terms of the White Paper . The provisions dealing with consent did not prove controversial during its passage through ORG .

In NORP v. Secretary of ORG ex parte ORG ( on behalf of ORG ) [ DATE ] ORG CARDINAL , Lord PERSON described the background to and general approach of LAW as follows .

“ ... There is no doubting the sensitivity of the issues . There were those who considered the creation of embryos , and thus of life , in vitro to be either sacrilegious or ethically repugnant and wished to ban such activities altogether . There were others who considered that these new techniques , by offering means of enabling the infertile to have children and increasing knowledge of congenital disease , had the potential to improve the human condition , and this view also did not lack religious and moral arguments to support it . Nor can one doubt the difficulty of legislating against a background of fast - moving medical and scientific development . It is not often that ORG has to frame legislation apt to apply to developments at the advanced cutting edge of science .

... The solution recommended and embodied in LAW was not to ban all creation and subsequent use of live human embryos produced in vitro but instead , and subject to certain express prohibitions of which some have been noted above , to permit such creation and use subject to specified conditions , restrictions and time limits and subject to the regimes of control ... It is ... plain that while ORG outlawed certain grotesque possibilities ( such as placing a live animal embryo in a woman or a live human embryo in an animal ) , it otherwise opted for a strict regime of control . No activity within this field was left unregulated . There was to be no free for all . ”

By section CARDINAL(CARDINAL ) of the LAW , no person shall bring about the creation of an embryo , or keep or use an embryo except in pursuance of a licence . The storage or use of an embryo can only take place lawfully in accordance with the requirements of the licence in question . The contravention of section CARDINAL(CARDINAL ) is an offence ( created by section CARDINAL(CARDINAL)(a ) of the LAW ) .

By section CARDINAL(CARDINAL ) of the LAW , “ the statutory storage period in respect of embryos is such period not exceeding five years as the licence may specify ” . This provision was amended by ORG Regulations CARDINAL , which came into force on DATE , and which provide , inter alia , that where , in the opinion of CARDINAL medical practitioners , the woman in whom the embryo may be placed , or , where she is not CARDINAL of the persons whose gametes are used to create the embryo , CARDINAL of those persons , is or is likely to become completely infertile prematurely , the storage period is extended until that woman is CARDINAL . Where , in the opinion of a single medical practitioner , the woman in whom the embryo may be placed , or CARDINAL of the gamete providers , has or is likely to have significantly impaired fertility or has a significant genetic defect , the storage period is extended to DATE , or until that woman is DATE , whichever period is the shorter .

Both of the persons whose gametes are used to create the embryos are required to confirm in writing that they do not object to extended storage for the purposes of future treatment . The woman in whom any such embryo may be placed must be under CARDINAL when storage commences .

By section CARDINAL(c ) of the LAW , it is a condition of every licence granted that the provisions of Schedule CARDINAL to the LAW , which deal with “ consents to use of gametes or embryos ” , shall be complied with . ORG and ORG held , in the proceedings brought by the applicant ( see paragraphs DATE above ) that , as a matter of the construction of Schedule CARDINAL , “ the embryo is only used once transferred to the woman ” .

Schedule CARDINAL provides as follows :

“ Consents to use of gametes or embryos

Consent

A consent under this Schedule must be given in writing and , in this Schedule , ‘ effective ORG means a consent under this Schedule which has not been withdrawn .

NORP ( CARDINAL ) A consent to the use of any embryo must specify CARDINAL or more of the following purposes–

( a ) use in providing treatment services to the person giving consent , or that person and another specified person together ,

( b ) use in providing treatment services to persons not including the person giving consent , or

( c ) use for the purposes of any project of research ,

and may specify conditions subject to which the embryo may be so used .

( CARDINAL ) A consent to the storage of any gametes or any embryo ORG

( a ) specify the maximum period of storage ( if less than the statutory storage period ) , and

( b ) NORP state what is to be done with the gametes or embryo if the person who gave the consent dies or is unable because of incapacity to vary the terms of the consent or to revoke it ,

and may specify conditions subject to which the gametes or embryo may remain in storage .

( CARDINAL ) A consent under this Schedule must provide for such other matters as the ORG may specify in directions .

( CARDINAL ) A consent under this Schedule may apply–

( a ) to the use or storage of a particular embryo , or

( b ) in the case of a person providing gametes , to the use or storage of any embryo whose creation may be brought about using those gametes ,

and in the paragraph ( b ) case the terms of the consent may be varied , or the consent may be withdrawn , in accordance with this Schedule either generally or in relation to a particular embryo or particular embryos .

Procedure for giving consent

NORP ( CARDINAL ) Before a person gives consent under this Schedule–

( a ) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps , and

( b ) he must be provided with such relevant information as is proper .

( CARDINAL ) Before a person gives consent under this Schedule he must be informed of the effect of paragraph CARDINAL below .

Variation and withdrawal of consent

( CARDINAL ) The terms of any consent under this Schedule may from time to time be varied , and the consent may be withdrawn , by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant .

( CARDINAL ) The terms of any consent to the use of any embryo can not be varied , and such consent can not be withdrawn , once the embryo has been used–

( a ) in providing treatment services , or

( b ) for the purposes of any project of research .

Use of gametes for treatment of others

( CARDINAL ) A person ’s gametes must not be used for the purposes of treatment services unless there is an effective consent by that person to their being so used and they are used in accordance with the terms of the consent .

( CARDINAL ) A person ’s gametes must not be received for use for those purposes unless there is an effective consent by that person to their being so used .

( CARDINAL ) This paragraph does not apply to the use of a person ’s gametes for the purpose of that person , or that person and another together , receiving treatment services .

In vitro fertilisation and subsequent use of embryo

( CARDINAL ) A person ’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for CARDINAL or more of the purposes mentioned in paragraph CARDINAL(CARDINAL ) above .

( CARDINAL ) An embryo the creation of which was brought about in vitro must not be received by any person unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for CARDINAL or more of the purposes mentioned in paragraph CARDINAL(CARDINAL ) above of the embryo .

( CARDINAL ) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents .

( CARDINAL ) Any consent required by this paragraph is in addition to any consent that may be required by paragraph CARDINAL above .

Storage of gametes and embryos

( CARDINAL ) A person ’s gametes must not be kept in storage unless there is an effective consent by that person to their storage and they are stored in accordance with the consent .

( CARDINAL ) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent , by each person whose gametes were used to bring about the creation of the embryo , to the storage of the embryo and the embryo is stored in accordance with those consents .

( CARDINAL ) An embryo taken from a woman must not be kept in storage unless there is an effective consent by her to its storage and it is stored in accordance with the consent . ”

The material effect of Schedule CARDINAL was summarised in the judgment of ORG Justices PERSON and PERSON ( see paragraph CARDINAL above ) as follows .

“ ( i ) Those contemplating the storage and/or use of embryos created from their gametes must first be offered counselling ; ( ii ) They must specifically be informed of the circumstances in which consent to the storage or use of an embryo may be varied or withdrawn ; ( iii ) Consent given to the use of an embryo must specify whether the embryo is to be used to provide treatment services to the person giving consent , or to that person together with another , or to persons not including the person giving consent ; ( iv ) An embryo may only be stored while there is effective consent to its storage from both gamete providers , and in accordance with the terms of the consent ; ( v ) An embryo may only be used while there is an effective consent to its use from both gamete providers , and in accordance with the terms of that consent ; ( vi ) Consent to the storage of an embryo can be varied or withdrawn by either party whose gametes were used to create the embryo at any time ; ( vii ) Consent to the use of an embryo can not be varied or withdrawn once the embryo has been used in providing treatment services . ”

On the basis of the material available to the ORG , including the “ Medically Assisted Procreation and the Protection of the Human Embryo Comparative Study on the ORG in GPE ” ( ORG , DATE ) and the replies by the member ORG to ORG “ Questionnaire on Access to Medically Assisted Procreation ” ( ORG , DATE ) , it would appear that ORG treatment is regulated by primary or secondary legislation in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ; while in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE such treatment is governed by clinical practice , professional guidelines , royal or administrative decree or general constitutional principles .

NORP The storage of embryos , for varying lengths of time , appears to be permitted in all GPE where ORG is regulated by primary or secondary legislation , except GPE and GPE , where in CARDINAL cycle of treatment CARDINAL embryos may be created which are , in principle , to be implanted together immediately , and GPE , where the law permits the freezing of embryos only on exceptional , unforeseen medical grounds .

In GPE , GPE , GPE , the GPE and GPE , the right of either party freely to withdraw his or her consent at any stage up to the moment of implantation of the embryo in the woman is expressly provided for in primary legislation . It appears that , as a matter of law or practice , in GPE , GPE and GPE there is a similar freedom for either gamete provider to withdraw consent before implantation .

A number of countries have , however , regulated the consent issue differently . In GPE , for example , in the absence of a specific contrary agreement by the couple , the woman is entitled to proceed with the treatment notwithstanding the death of her partner or the divorce of the couple . In GPE and GPE the man ’s consent can be revoked only up to the point of fertilisation , beyond which it is the woman alone who decides if and when to proceed . In GPE , the man ’s right to revoke his consent is recognised only where he is married to and living with the woman . In GPE and GPE , neither party can normally withdraw consent after the eggs have been fertilised . In GPE , the embryos must be destroyed if the gamete providers separate or divorce before the expiry of the maximum storage period .

In addition , the parties referred the ORG to case - law from GPE and GPE . The field of medically assisted reproduction is not regulated at federal level in GPE and few GPE have introduced laws concerning the subsequent withdrawal of consent by CARDINAL party . It has , therefore , been left to the courts to determine how the conflict between the parties should be resolved and there are a number of judgments by ORG regarding the disposal of embryos created through ORG .

In PERSON v. PERSON ( CARDINAL ORG CARDINAL , CARDINAL ; DATE ) , ORG held in DATE :

“ ... disputes involving the disposition of pre - embryos produced by in vitro fertilisation should be resolved , first , by looking to the preferences of the progenitors . If their wishes can not be ascertained , or if there is dispute , then their prior agreement concerning disposition should be carried out . If no prior agreement exists , then the relative interests of the parties in using or not using the pre - embryos must be weighed . Ordinarily , the party wishing to avoid procreation should prevail , assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the pre - embryos in question . If no other reasonable alternatives exist , then the argument in favor of using the pre - embryos to achieve pregnancy should be considered . However , if the party seeking control of the pre - embryos intends merely to donate them to another couple , the objecting party obviously has the greater interest and should prevail .

But the rule does not contemplate the creation of an automatic veto ... ”

In PERSON v. PERSON ( CARDINAL GPE . TIME ) , the couple had signed an agreement with the clinic which stipulated that , “ in the event that we ... are unable to make a decision regarding the disposition of our frozen pre - zygotes ” , the embryos could be used for research . When the couple separated , PERSON sought to overturn the agreement and proceed to implantation . Although she prevailed at first instance ( the court reasoning that just as a woman has exclusive control over her reproduction so should she have the final say in the area of ORG ) , ORG decided that the existing agreement was sufficiently clear and should be honoured .

In GPE v. GPE ( DATE CARDINAL Mass. CARDINAL , CARDINAL N.E.CARDINALd CARDINAL ) there was again a previous written agreement , according to which , in the event of separation , the embryos were to be given to the wife , who now wished to continue with the treatment , contrary to the wishes of the husband . However , ORG considered that the arrangement should not be enforced because , inter alia , as a matter of public policy “ forced procreation is not an area amenable to judicial enforcement ” . Rather , “ freedom of personal choice in matters of marriage and family life ” should prevail .

This judgment was cited with approval by ORG , in PERSON ( DATE PERSON ) . Here , it was the wife who sought the destruction of the embryos while the husband wanted them either to be donated to another couple or preserved for use by him with a future partner . Although constitutional arguments were advanced on behalf of the wife , the court declined to approach the matter in this way , reasoning that it was in any event not sure that enforcing the alleged private contract would violate her rights . Instead , having taken into account the fact that the father was not infertile , the court subscribed to the view taken in the ORG case regarding public policy and ordered that the wife ’s wishes be observed .

Finally , in Litowitz v. Litowitz ( DATE , CARDINAL ) the woman , who had had children before undergoing a hysterectomy , wished to use embryos created with her ex - husband ’s sperm and donor eggs for implantation in a surrogate mother . The ex - husband , however , wished the embryos to be donated to another couple . At first instance and on appeal the husband ’s view prevailed , but in DATE ORG of GPE decided by a majority to adopt a contractual analysis and to honour the couple ’s agreement with the clinic not to store the embryos for DATE .

In Nachmani v. Nachmani ( CARDINAL(CARDINAL ) P.D. CARDINAL ( GPE ) ) , a childless NORP couple decided to undergo ORG and then to contract with a surrogate in GPE to bear their child because the wife would not be able to carry the foetus to term . The couple signed an agreement with the surrogate , but not with the ORG clinic regarding the disposal of the embryos in the event of their separation . The wife had her last CARDINAL eggs extracted and fertilised with her husband ’s sperm . The couple then separated , before the embryos could be implanted in the surrogate , and the husband , who had gone on to have children with another woman , opposed the use of the embryos .

ORG found in favour of the wife , holding that the husband could no more withdraw his agreement to have a child than a man who fertilises his wife ’s egg through sexual intercourse . A CARDINAL - judge panel of ORG reversed this decision , upholding the man ’s fundamental right not to be forced to be a parent . ORG reheard the case as a panel of CARDINAL judges and decided , CARDINAL , in favour of the wife . Each judge wrote a separate opinion . The judges in the majority found that the woman ’s interests and in particular her lack of alternatives to achieve genetic parenthood outweighed those of the man . CARDINAL of the minority judges , including the Chief Justice , reached the opposite conclusion , emphasising that the wife had known that her husband ’s consent would be required at every stage and that the agreement could not be enforced after the couple had become separated . The fourth of the dissenters held that the man ’s consent was required before the obligation of parenthood could be imposed on him .

The general rule stated in LAW states as follows :

“ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .

The person concerned may freely withdraw consent at any time . ”

Principle CARDINAL of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences , the expert body within ORG which preceded the present ORG ( ORG , DATE ) , stated :

“ CARDINAL . The techniques of artificial procreation may be used only if the persons concerned have given their free , informed consent , explicitly and in writing , in accordance with national requirements .

Finally , LAW provides :

“ DATE Consent

Any preventive , diagnostic and therapeutic medical intervention is only to be carried out with the prior , free and informed consent of the person concerned , based on adequate information . The consent should , where appropriate , be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice .


No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression -{General} (Article 10-1 - Freedom of expression)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively . They live in GPE .

NORP In DATE the GPE city administration authorised a public gathering called “ the Right March ” by a number of nongovernmental organisations such as ORG and ORG . The declared aim of the event was to commemorate the liberation of GPE from occupation and to express the ORG dissatisfaction with the flow of immigration into GPE . This public event included a parade from the ORG underground station down to FAC , where a demonstration was held . The event lasted for DATE and attracted CARDINAL people , according to the applicants . Reportedly , a number of participants shouted “ GPE for NORP , GPE for Moscovites ! ” and displayed banners with slogans such as “ Let ’s clean the unwelcome guests out of the city ! ” ; “ NORP , the war is over . It ’s time to go home ! ” or “ GPE belongs to us ! ”

Following the above event a “ steering committee for an anti - fascist march ” was formed , which included representatives of various human rights organisations . It was decided to hold a public gathering on DATE to mark their opposition to the values proclaimed by the “ Right March ” . The event was planned to progress through several streets in central GPE to FAC ( near the GPE mayor ’s office ) , where they would hold a demonstration . On DATE the city administration stated that they would give permission only for the demonstration . The administration also wanted it to be held in a different place ( FAC ) and for TIME instead of CARDINAL .

NORP The organisers did not challenge in court the conditions imposed by the mayor ’s office . Instead , they preferred to withdraw their application to hold the march as planned , apparently considering that the modified conditions would work against the aims they sought to achieve by holding a public gathering .

Instead , the organisers opted to picket FAC on DATE ( DATE from TIME ) next to the Dolgorukiy monument ; they expected that CARDINAL people would join the picket ( пикетирование ) . There they intended to express their disagreement with the mayor ’s office as to the location of the previously planned march and demonstration . It does not appear that this new event was meant any longer to be a direct reply to the “ Right March ” .

On DATE CARDINAL persons , including CARDINAL of the applicants ( Mr PERSON ) , gave notice of the event , this time to the district authority , in order to comply with LAW ( see “ Relevant domestic law and practice ” cited in paragraph CARDINAL below ) .

In a letter of CARDINAL DATE referring to the “ security of the participants ” and the need to avoid causing obstruction to pedestrians and vehicles , the district authority suggested that this new event also be held in PERSON instead of FAC from TIME to TIME It was explained that under a DATE order the area around the Dolgorukiy monument was restricted to service vehicles of the mayor ’s office . The organisers of the new event sent a letter expressing their disagreement with the LOC decision . On DATE , they informed the mayor ’s office that they were no longer intending to hold a march and a demonstration as initially planned , in view of the mayor ’s reply of DATE .

Prior to the date of the event , the organisers did not challenge in court the conditions imposed on the event by the district authority ( see , however , the court decisions of CARDINAL March and DATE below ) . Instead , despite the position of the district authority , the organisers decided to hold a public gathering in FAC on DATE at CARDINAL p.m. The special security squad proceeded to arrest some participants , allegedly without giving them time or opportunity to disperse after a verbal order to do so .

The applicants , with CARDINAL other people , were taken to the LOC police station and remained there until TIME , while various records , including administrative offence records , were compiled .

On DATE and DATE the Justice of the ORG delivered judgments finding the applicants guilty of a breach of the procedures for public gatherings ( LAW ) . They were ordered to pay a fine of MONEY ( RUB ) ( except for the ninth applicant who had to pay RUB MONEY ) . The Justice of the Peace referred to the district authority ’s letter of CARDINAL DATE concluding that the public gathering was unlawful .

The court held as follows in respect of the first applicant :

“ Under LAW , a picket means an expression by CARDINAL person or several people of his or their opinion in public , by way of displaying posters , banners and other means of visual propaganda , albeit without movement or use of sound - amplifying technical means ... It follows from the LAW that a right to hold public gatherings entails a corresponding duty of the public authorities . It should be noted that representatives of the relevant public authorities should be appointed to ensure the lawfulness of the event , public safety and public security . Thus , to enable the event participants and the public officers to fulfil their obligations and duties , there should be rules laid down for the event ...

It follows from the material available that despite the orders of the police the event participants refused to stop the picket and thus committed a premeditated administrative offence ... It has not been established that the [ applicant ] acted as one of the event organisers . However , his actions disclosed a violation of the procedures for public gatherings because he did participate in a picket in a venue which had not been assigned for this purpose . At the same time , the court notes that he intended to take part in a public event and to express his opinion in relation to issues of general and political interest . He should also have observed the rules laid down for the event . However , failing to respect the circumstances , which were significant for the event and the police orders , he refused to stop the picket . ”

The court made similar findings in respect of other applicants , except for PERSON .

The court added in respect of PERSON as follows :

“ ... ’s actions disclosed a violation of the procedure for a picket because no proper notification had been made to the competent public authority in relation to the picket ... ”

The applicants appealed . By separate appeal decisions taken DATE and DATE the ORG of GPE upheld the decisions taken by the ORG of the FAC .

In separate proceedings Mr PERSON and another person sought to challenge the position taken by the district authority in its letter of DATE . In a judgment of DATE ORG of GPE cited the relevant legislative provisionsOn DATE ORG endorsed the above conclusion on appeal .

Under LAW , citizens have a right of peaceful assembly . This right can be limited by a federal statute in so far as it is necessary to protect the constitutional regime , morals , health or rights or interests of others ( LAW ) .

Under sections CARDINAL and CARDINAL of the DATE Public Gatherings Act in force at the relevant time , the organiser of a public event ( except for an event involving CARDINAL person ) was to inform the competent authority of the event DATE in advance ( DATE in advance for a picket ( пикетирование ) ) . The organiser was required to indicate the purpose of the event , its form , the venue and the itinerary , as well as the date , timing and approximate number of participants .

The competent authority was to notify the organiser if it had a reasoned proposal for another venue and/or timing for the event . The organiser was required to inform the competent authority whether he or she refused or accepted the suggested new venue and/or timing .

NORP The event could not take place if the event organiser and authority had not approved the alternative proposal ( section CARDINAL § CARDINAL ) .

A public event could be stopped if ( i ) there was a real threat to life or physical integrity of persons or property ; ( ii ) the event participants had acted unlawfully or if the event organiser had knowingly breached the requirements of the LAW as regards the conduct of the event ( section CARDINAL ) . In such circumstances the representative of the public authority , who should be present at the event , could order the event organiser to put an end to the event . This representative should also explain the reasons for such order and should provide time for compliance with the above order . If the organiser had not complied , the public official could issue the same order to the participants . If both failed to comply , the police was to take the appropriate measures to stop the event ( section CARDINAL ) .

A public event could not be held in zones close to dangerous industrial objects , the residences of the President of GPE , court buildings or prisons ( section CARDINAL) .

Under LAW of the LAW a violation of the procedure concerning a public gathering is punishable by a fine .

By order no . CARDINAL-RP of DATE , the GPE city mayor introduced regulations concerning city - hall parking areas for service vehicles , including on FAC , for CARDINAL vehicles ( during DATE , not DATE or DATE ) .


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The first applicant , PERSON , was born in DATE . The second and the third applicants , PERSON and Mr PERSON , are her children , born in DATE and DATE . The applicants are all NORP nationals . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

NORP On an unknown date , the applicants arrived in GPE from GPE and applied for asylum and residence permits . Before ORG ( Migrationsverket ) they claimed , inter alia , the following . They originated from LOC and feared persecution due to the internal armed conflict there . The first applicant ’s former husband had been engaged in the resistance movement . They had last met at DATE . Some time later , she had met another man who had fought for the South Ossetian army and who had been shot dead . Subsequently , the applicants’ house had been shot at on several occasions and they had been unable to obtain any protection from the domestic authorities .

On DATE , ORG rejected the applications and decided that the applicants were to be expelled to either GPE or GPE . It stated that the first and the second applicants’ passports had been submitted to ORG anonymously and that these showed that the applicants were NORP nationals . Moreover , the passports contained GPE visas issued by ORG in GPE and stamps which showed that they had entered GPE by car in DATE . However , it noted that the first applicant had undergone a language test , according to which it was found probable that she originated from GPE . Moreover , the first and second applicants had also submitted documents which they claimed were temporary documents issued by the South Ossetian authorities and which functioned as internal passports for GPE . Consequently , their applications were examined on the basis of a return to either GPE or GPE . In the ORG ’s view , there were no indications that the applicants would risk persecution or other ill - treatment upon return to GPE due to their LOC . It further noted that the family had not claimed that they needed international protection in relation to GPE . Finally , ORG noted that there were no particularly distressing circumstances in the case since the family had no strong connection to GPE and it had not appeared that any person in the family suffered from serious health problems .

The applicants appealed to ORG ( Migrationsdomstolen ) , maintaining their claims and adding the following new information . The NORP passports were false and the family ’s real last name was PERSON . The family had come to GPE with the help of smugglers but had been unable to pay them the full amount demanded , for which reason the smugglers had submitted false passports to the NORP authorities as revenge . The first applicant had herself ordered the passports in GPE , which were falsifications of authentic NORP passports . Consequently , it had been wrong of the ORG to base its examination on these passports and their asylum claims should be tried only against GPE and in particular LOC . In this respect , they asserted that LOC was an unsafe place for a single mother with children and that they had nothing to return to since their house had been destroyed in the war between GPE and GPE . The children could not be guaranteed schooling or good health care there . Moreover , the first and second applicants risked gender - related persecution and possibly even trafficking .

As concerned the family ’s health , it had deteriorated since ORG rejection . They submitted a medical certificate from DATE concerning the third applicant , which stated that he had been receiving treatment for depression at the Child and Youth Psychiatric Centre ( Barn- och ungdomspsykiatrin - BUP ) since DATE . Furthermore , he had been hospitalised for a shorter period due to somatic symptoms , depression and refusal to eat . They further submitted a certificate from DATE and issued by a psychotherapist at ORG which stated that the third applicant was in a state of apathy and spent all his time in bed , which was confirmed by a medical certificate from DATE . Regarding the second applicant , a medical certificate from DATE issued by a psychiatrist stated that she had been in contact with the psychiatric unit since DATE due to anxiety and tendencies to try to isolate herself from the outside world . In DATE her health had deteriorated and she had refused to eat . In DATE , she had been hospitalised due to depression and malnutrition .

On DATE , ORG upheld the ORG ’s decision and ordered that the applicants be expelled to GPE . At the request of the court , ORG had contacted ORG in GPE to verify the authenticity of the passports . The results indicated that the passports and the visas were authentic and that they had not been tampered with . Moreover , ORG in GPE had confirmed that the first and the second applicants had been granted visas for the relevant period . Consequently , ORG found it substantiated that the applicants had used their passports when entering GPE and noted that the first applicant had stated that she had ordered them herself . As to the other identity documents submitted by the applicants , the court found them to be of a simple nature and noted that they contained different names from those in the passports . Therefore , in the court ’s view , the applicants had not substantiated any nationality other than NORP and their applications should accordingly be examined only on the basis of a return to GPE . Turning to the applicants’ personal situation , ORG found no reason to believe that the applicants would risk any persecution or discrimination due to their LOC ethnicity and noted that they had not submitted any other grounds for international protection against GPE .

As concerned the applicants’ ties to GPE and their state of health , ORG observed that the applicants had only spent DATE in GPE and noted that it could not be considered contrary to the children ’s best interests to accompany their mother back to GPE . Moreover , since the medical documentation relied on by the applicants did not contain any information about the prognosis of the applicants’ need for health care , or the consequences if no care were provided , the court found them to have low evidentiary value . It also appeared from country information submitted in the case that health care was available in GPE leave to remain in GPE .

The applicants appealed to ORG ( Migrationsöverdomstolen ) which , on DATE , refused leave to appeal .

Subsequently , the applicants requested ORG to reexamine their case , arguing that there were impediments to the enforcement of the expulsion order . They claimed that they all suffered poor health and that medical care in GPE was insufficient . They further referred to a car accident in DATE , in which the first applicant ’s youngest son and the second and third applicants’ younger brother , PERSON , had died , and the fact that he was buried in GPE . They submitted new medical certificates regarding the second and the third applicants .

On DATE , ORG rejected the application . It noted that the health of the third applicant had recently improved since he was no longer being tube fed and had started talking and interacting socially . As concerned the second applicant , it observed that her health was likewise better as her depression was considered mild and no longer serious . In the ORG ’s view , there was sufficient health care available in GPE for the applicants . When taking these circumstances into account , and despite the fact that PERSON was buried in GPE , it found no impediments to the enforcement of the expulsion order .

The applicants appealed to ORG which , on DATE , upheld the ORG ’s decision in full .

NORP In DATE the applicants again requested ORG to re - examine their case , invoking the same grounds as previously and adding that the first applicant was mentally unstable and under severe stress with suicidal tendencies . The third applicant was at risk of falling into a state of apathy .

On DATE , ORG rejected the request on the grounds that the applicants had invoked no new circumstances of importance to justify altering the previous decisions . Moreover , it found that there were no impediments to their expulsion .

The applicants lodged yet another request with ORG to re - examine their case , invoking their continued ill - health and the fact that PERSON was buried in GPE . They submitted the same medical certificates as submitted to the ORG and referred to below , § § DATE ) .

On DATE ORG rejected the request . It noted that the applicants had not invoked any new circumstances which had not already been examined by ORG . As concerned the applicants’Sweden .

On DATE , the applicants requested the ORG to apply Rule CARDINAL of ORG in order to stop their expulsion to GPE .

On DATE , the Acting President of the Section to which the case had been allocated refused the ORG request for interim measures .

Before the ORG , the applicants submitted new medical certificates concerning their state of health , issued by a Chief physician and specialist in psychiatry .

As regards the first applicant the certificates , dated DATE , CARDINAL DATE and DATE stated , inter alia , that her state of health had markedly worsened after ORG rejection of the asylum request in DATE , making her increasingly anxious and worried about her children ’s ill - health . Since the loss of her youngest son , PERSON , in DATE , the first applicant ’s mental health had visibly worsened and she had persistently sought help . She questioned her capabilities as a mother and blamed herself for what had happened to her family . She was suffering from a serious psychological disorder with signs of depression and posttraumatic stress disorder ( PTSD ) for which she was in need of long - term medication as well as therapeutic treatment . She had become increasingly depressive and suicidal with an imminent risk of destructive actions . She received a variety of medication .

Turning to the second applicant , the certificate dated DATE stated , inter alia , that she had suffered from recurrent serious depression and difficulties sleeping and eating . She had been treated with medication for anxiety but had shown tendencies to overdose which had made physicians cautious to prescribe medication . Currently , the depression was considered mild but she still had panic attacks , was anxious and felt hopeless about her life situation .

As regards the third applicant , the certificate dated DATE stated , inter alia , that he had been treated periodically at ORG for deep depression which had worsened since his brother ’s death . He had lost weight and no longer had any interest in life . He had difficulties eating and sleeping properly and had recurring rages where he hit his head against the table and beat his fists against the wall . At present , he was heading for a breakdown and could see no other option than to end his life . He probably had a personality disorder due to extensive periods of stress with minimal possibilities to control his own acts . He was in need of long - term treatment .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE ) . It defines the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , section CARDINAL , of LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , section CARDINAL , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL , of LAW ) .

NORP Moreover , if a residence permit can not be granted on the above grounds , a permit may nevertheless be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in GPE ( LAW , section CARDINAL , of LAW ) . During this assessment , special consideration should be given to , inter alia , the alien ’s state of health . In the preparatory works to this provision ( Government PERSON , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for granting a residence permit .

According to a provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , section CARDINAL , of LAW ) .


The applicants , PERSON and PERSON , are NORP nationals , born in DATE and DATE , respectively . They both live in GPE . The facts of the case , as submitted by the parties , may be summarised as follows .

The applicants are insurance brokers . On DATE they issued a plenary summons beginning a libel action against ORG ( “ IBA ” ) : they took issue with a letter circulated by the ORG indicating that the ORG membership of the ORG had been terminated due to non - compliance with the requirements of LAW DATE . LAW stipulates that every person who contravenes the LAW shall be guilty of an offence .

On DATE the applicants filed a statement of claim . Further to a motion of the applicants , on DATE ORG ordered the ORG to deliver its defence .

On DATE ORG , following the applicants’ motion , accepted that their solicitors had ceased to be on record .

On DATE another solicitor ( “ ORG ” ) filed a notice of change of solicitor , thereby coming on record for the applicants . The case was also set down for trial . The hearing of the case was initially fixed for DATE but it could not be heard on DATE . By DATE ORG had come off record although he continued to assist the applicants informally .

On DATE the case came on for hearing ( “ first hearing ” ) before PERSON Justice PERSON and a jury . It was submitted by the ORG that the applicants had gone beyond the ambit of the pleadings in the course of their opening speech to the jury and it was deemed necessary by the trial judge to discharge the jury .

On DATE the hearing re - commenced before a new jury and Mr Justice PERSON ( “ second hearing ” ) . It ended on DATE when the jury returned a verdict in favour of the applicants and awarded the applicants MONEY ( GPE ) . The trial judge ordered the ORG to discharge the ORG costs when taxed and ascertained .

In DATE the ORG appealed arguing that the defence of “ qualified privilege ” should have been admitted and that the damages were excessive . They requested a new trial or that ORG render judgment in the terms of their notice of appeal .

ORG heard the appeal on DATE and reserved judgment which was delivered on DATE . ORG ( Mr Justice O’Flaherty giving the judgment of the ORG , with which the CARDINAL other judges agreed ) dismissed the appeal as regards the question of qualified privilege . However , it allowed the appeal on the question of damages , finding the award excessive . Accordingly , the action was remitted to ORG for a new trial on the question of damages only . The ORG was ordered to discharge the applicants’ costs of the appeal when taxed and ascertained .

On DATE the applicants filed a notice in ORG confirming the re - appointment of ORG as their legal representative , but by DATE they were filing their own pleadings in ORG .

By notice of motion dated DATE the applicants requested , inter alia , that their case be heard as a matter of priority . The ORG also motioned to strike out parts of the ORG submissions as “ scandalous ” . On DATE ORG granted the priority request ordering that the case be listed first in the list to fix dates for jury actions : that list would be called over on CARDINAL DATE and the judge doing so would also decide on the ORG ’s motion .

On DATE the ORG issued CARDINAL motions in ORG seeking discovery of documents relevant to the quantum of damages including access to the ORG past business records and seeking leave to make a lodgment into ORG in respect of the libel established . On DATE , at a call - over of the case - list , a hearing date was not fixed given the outstanding discovery matter . On DATE the applicants issued a counter - motion seeking maximum priority for the fixing of a hearing date on damages during the following court term .

On DATE the High Court heard these motions and reserved judgment . On DATE ORG ( Mr Justice PERSON ) delivered a detailed judgment ordering the applicants to deliver particulars of , and disclose documents concerning , turnover for a period of DATE prior to the libel and particulars of their claimed losses . The ORG was given liberty to amend its defence to allow it to lodge a sum of money into court . It was also ordered that the action be accorded priority in the GPE jury lists for the following legal term . The applicants were awarded their costs of the ORG ’s motion concerning its lodgment into court and the court ’s decision on other ORG matters was reserved .

On DATE the applicants filed an affidavit of discovery . On DATE the applicants filed a motion to have the hearing specially fixed in accordance with the priority accorded on DATE . On DATE the ORG filed an amended defence and on DATE the ORG replied . On DATE the ORG filed a motion requesting that part of the applicants’ reply be struck out ( as being , inter alia , prolix , in part scandalous , unnecessary , and irrelevant ) and for the applicants to make full discovery in accordance with the court order of DATE . The ORG supported their motion by affidavits dated DATE and DATE and the applicants filed an affidavit on DATE . On DATE the ORG priority listing motion was considered but no order was made pending the outstanding discovery matter .

By notice dated DATE , the applicants discharged ORG as their solicitor . On DATE also the ORG ’s motion ( of DATE ) was heard in ORG ( Mr Justice PERSON ) which ordered a significant portion of the applicants’ reply to be struck out and that they make discovery as already ordered on DATE . The decision on costs of the motion was reserved . The action was listed for mention on DATE .

The applicants filed CARDINAL more affidavits on DATE , inter alia , objecting to producing certain documents and making some discovery .

On DATE ORG ( Mr Justice PERSON ) ordered the applicants to respond within DATE to an outstanding matter raised in the ORG ’s affidavit of CARDINAL DATE . A decision as to the award to be made on the costs of that hearing and court order was reserved . The action was listed for mention on DATE .

By affidavit of CARDINAL DATE the applicants responded to the matter raised in the ORG affidavit of DATE . On CARDINAL and DATE the ORG filed affidavits in the High Court concerning certain discovery matters . On DATE also ORG ( Mr Justice PERSON ) heard the parties , noted their agreement that the ORG inspect certain of the applicants’ documents and it was ordered that it be done before DATE . Costs were reserved . On DATE the applicants and the ORG filed affidavits concerning discovery . The applicants submit that on DATE ORG examined these matters refused the ORG ’s motion and did not make a ORG order in their favour .

On DATE the ORG wrote to the applicants indicating that many of the matters they had referred to in their reply were not admissible and that objection would be taken at the opening of the trial on damages if the applicants attempted to introduce them ( mainly concerning the applicants’ new claim for exemplary damages ) .

The hearing ( “ third hearing ” ) on the question of damages took place before ORG ( Mr Justice PERSON ) from CARDINAL to CARDINAL DATE , on which latter date the trial judge made certain preliminary rulings and directions , pursuant to the ORG ’s motion , excluding submissions by the applicants on certain matters considered to fall outside of the scope of the damages’ proceedings . Since the applicant who was pleading had fallen ill , the matter was adjourned to CARDINAL DATE . By then , the applicants had considered the rulings of the trial judge and formed the view that the trial judge had thereby taken away their right to a proper trial on the damages’ aspect . The order of CARDINAL DATE records that the applicants had “ refused to proceed ” . It was ordered that their claim for damages be dismissed and that the ORG recover the costs of the hearing together with their costs of the motions in respect of which costs had been reserved . The money lodged in court by the ORG could be withdrawn by the ORG .

On DATE the applicants appealed against those orders of ORG and requested a new trial which would include their submissions excluded by ORG in DATE . ORG heard the appeal on DATE . On DATE judgment was delivered ( by Mr Justice O’Flaherty ) : the court found in the ORG favour ( considering , inter alia , that the applicants should have been allowed to make submissions on exemplary and aggravated damages ) and ordered a new trial in ORG and the ORG was to re - lodge the sum of money back into court . No order was made as to the costs of the appeal : the costs of the third hearing and of the new trial were matters for the new trial judge .

Further to the applicants’ motion dated DATE , ORG ordered ( on CARDINAL DATE ) that the re - trial of the action be specially fixed for DATE of jury hearings the following legal term .

On CARDINAL , CARDINAL and DATE ORG hearing on damages ( “ fourth hearing ” ) took place before Mr Justice PERSON and a jury . On DATE the jury awarded the sums of QUANTITY ( ORG ) ( damages ) and ORG CARDINAL ( aggravated damages ) in compensation . No exemplary award was made . The applicants were also to recover the costs of that hearing together with those costs reserved on DATE ( both motions ) , DATE and on DATE as well as the costs of DATE of the third hearing .

On DATE the applicants submitted their ORG calculations to the Taxing Master . The ORG responded on DATE and the applicants on DATE . On DATE the Taxing Master delivered rulings on the taxation of costs , disallowing certain of the ORG claims and allowing others . Further hearings on costs took place before the Taxing Master on DATE , DATE and DATE , on DATE and DATE . On DATE the Taxing Master made further rulings and issued a report on the ORG costs on DATE .

On DATE the applicants issued a motion to review in the High Court the taxation rulings . The applicants took issue , inter alia , with the Taxing Master ’s refusal to award them legal costs at ORG TIME as they were not represented and to award them instead an TIME amount for the time they spent in court at the standard rate applicable to the profession of which they were both members ( insurance brokers ) . They also took issue with the decision not to allow all of the costs claimed in respect of the informal assistance of a solicitor after their solicitors had came off record ( ORG CARDINAL was awarded for this ) . On DATE the ORG also lodged a cross - motion to review certain aspects of the Taxing Master ’s award submitting , inter alia , that no award at all should have been made in respect of this informal assistance .

By detailed judgment dated DATE ORG ( Mr Justice Kelly ) dismissed the ORG appeal and allowed the ORG ’s appeal . ORG found reasonable the Taxing Master ’s refusal to award the applicants the sum of ORG TIME in respect of the time they spent on their own case : the refusal was in line with jurisprudence and the Taxing Master had reasonably made an award for the time spent by the applicants in court at the standard TIME rate charged by insurance brokers . Indeed , it was noted that the applicants had taken the figure of ORG TIME from a newspaper cutting , that the applicants had been unable to present firm evidence to the Taxing Master as to their actual TIME earnings ( evidence from the trial indicated that their rate was between ORG TIME ) and that the purpose of taxation of costs was reimbursement of costs and not profit - making . As to the award of IEP CARDINAL for informal legal assistance , ORG found that the Taxing Master had erred in law and allowed the ORG appeal on this point .

Otherwise ORG considered and confirmed the Taxing Master ’s disallowance of costs claimed by the applicants for procedures in respect of which “ no order as to costs ” had been made by a court ( not least because the applicants had not appealed those orders at the time ) . ORG also considered and confirmed the Taxing Master ’s rulings on miscellaneous items including mileage / travelling / parking ( an allowance made ) , copying ( no allowance made ) , and the costs of purchasing legal text books ( no allowance made ) .

In addition , ORG judge referred to the voluminous criticisms and allegations against the members of ORG , a professional institution , barristers , solicitors and a number of ORG judges including ORG President which the applicants had attempted to introduce into the appeal . Apart from not being relevant to the current appeal , ORG judge considered those comments to be “ serious and scurrilous ” and demonstrative of the fact that “ obsession has replaced reason and invective has replaced argument ” .

ORG also made an award of the costs of the appeal in favour of the ORG , on the understanding that the ORG would not enforce it if the applicants did not appeal further .

The applicants claim that they then sought the perfected order of ORG and , when they received it , considered its terms did not reflect what had been ordered . Accordingly , on DATE they applied for an extension of time to appeal to ORG . On DATE the ORG agreed to the extension of time ( until DATE ) . Costs of that application were awarded to the ORG .

On DATE the applicants appealed to ORG claiming , inter alia , that it was unfair that they had not been awarded costs in respect of the time and effort which went into representing themselves whereas a solicitor representing himself would have been granted costs . On DATE the appeal court heard the appeal and reserved judgment . The applicants prepared CARDINAL typed pages of an opening statement for ORG and state that they were allowed to read aloud CARDINAL pages only ( which CARDINAL pages included their challenge to the accuracy of the High Court judgment of DATE ) .

On DATE ORG delivered its judgment dismissing the appeal finding , inter alia , that , according to relevant case - law , costs could not be recovered by lay litigants since only legal costs which could be measured by the court could be awarded . The court noted that , in the case of solicitors representing themselves , the costs for their professional skill and labour are capable of being measured and , as pointed out in the case - law , it would be absurd to permit a solicitor to employ another solicitor and recover the costs but not permit him to recover costs if he chose to represent himself . On DATE ORG made an order for the costs of that appeal in favour of the ORG .

By summons dated DATE and requested by the ORG , the applicants were convoked before the Taxing Master on DATE for the examination of the costs of the ORG in successfully defending their appeals against taxation of costs . The Taxing Master refused the applicants’ application for an adjournment and on DATE he awarded ORG euros ( “ EUR ” ) to the ORG in respect of the costs of those appeals . The applicants did not appeal against this award .

On DATE the ORG informed the applicants that they had registered judgment against their property . On DATE and CARDINAL DATE the applicants sent cheques to the ORG in payment of the costs awarded together with interest and asked the ORG to withdraw the judgments against their property . The ORG requested the applicants to forward the appropriate documentation for the vacation of the judgments and it appears that correspondence has continued thereafter on this question .


Violation of Art. 13;Violation of Art. 3;Violation of Art. 5-4

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE a Ms T. lodged a complaint with ORG Office of GPE alleging that she had been kidnapped and raped by a group of men .

On DATE the applicant was arrested on suspicion of kidnapping and rape .

On DATE ORG authorised the applicant 's detention pending trial . The applicant was represented by counsel of his own choosing .

According to the applicant , he could not appeal against the decision of CARDINAL DATE since he was not provided with stationery by the administration of the temporary detention facility where he was being held at the time .

On DATE the ORG of GPE extended the applicant 's pre - trial detention until DATE . The applicant attended the hearing . His counsel asked the court to consider the case in his absence and did not appear at the hearing . The applicant was represented by a court - appointed lawyer .

On DATE the applicant lodged an appeal against the court order of CARDINAL DATE . He asked the appeal court to ensure his and his lawyer 's presence at the hearing .

On DATE ORG examined the appeal . The hearing was held in the absence of the applicant and his counsel . The prosecutor considered that the applicant 's appeal should be dismissed . ORG found that the extension of the applicant 's pre - trial detention was in accordance with the law and upheld the decision of DATE .

ORG further extended the applicant 's detention pending trial . Extensions were granted at the prosecutor 's request on DATE and DATE . ORG upheld those decisions on appeal on CARDINAL DATE and DATE respectively . The applicant did not provide any other details in respect of the detention orders .

On several occasions in DATE the applicant asked the investigator to question additional witnesses and examine forensic evidence . The investigator dismissed the applicant 's requests , indicating , inter alia , that :

“ The guilt of [ the defendants ] ha[d ] been fully proved ” .

On DATE ORG dismissed the applicant 's complaint about the prosecutor 's refusal to open a criminal investigation against the police officers who had allegedly ill - treated him during his arrest . The applicant did not appeal .

On DATE the ORG of GPE received the case file .

On DATE ORG found the applicant guilty of kidnapping and rape and sentenced him to DATE imprisonment .

On DATE ORG upheld the applicant 's conviction on appeal .

DATE the applicant was held in cell no . CARDINAL of the Maryinskiy temporary detention facility . The cell measured QUANTITY . QUANTITY The applicant was detained there alone . According to him , the cell was poorly lit , and the cement floor was dirty . The cell was infested with bedbugs and other insects . The corners were covered in cobwebs . No bed sheets , mattresses or blankets were provided . The radio was left on during TIME . Water was available twice a day . There was no sink and the applicant had to wash himself over the toilet . The applicant received CARDINAL meal a day .

On DATE the applicant was transferred to remand prison no . CARDINAL . On arrival he was placed in a cubicle measuring CARDINAL sq . m where he spent DATE . He was not given any food or allowed to use the bathroom for the whole of the time he spent in the cubicle .

On DATE the applicant was placed in cell no . CARDINAL , where he was detained until DATE . It measured QUANTITY . m and had CARDINAL sleeping places . It housed from CARDINAL persons ( in his subsequent submissions the applicant stated that it housed from CARDINAL persons ) . The inmates had to take turns to sleep . The beds were QUANTITY long . The cell did not have any drawers or shelves to allow the inmates to store their personal belongings properly . MONEY of the inmates smoked and the applicant , a non - smoker , was exposed to tobacco smoke . The toilet was located QUANTITY from the dinner table . It was dirty and foul smelling . There was no separation between the toilet and the living area of the cell and the person using it could be seen by others present in the cell . The inmates had to pull a curtain across to separate the toilet from the living area . However , the prison guards removed the curtain each time they made an inspection . Because of the overcrowding of the cell the inmates had to wait a long time for their turn to use the toilet .

The food was of poor quality and portions were small . On DATE of the court hearings , the applicant left the prison at TIME and came back TIME . As a result , he missed the meals served at the prison and was left hungry DATE . No drinking water was available in the cell . There was only cold tap water that contained rust and had a peculiar colour and taste .

The cell had CARDINAL window measuring QUANTITY . m , which was covered with a metal screen and bars . The screen and the bars prevented any fresh air or natural light from entering the cell . There were no window panes . The artificial ventilation system did not function properly . The electric light was constantly on .

The cell was stuffy and infested with parasites . It was never disinfected . There was fungus and mould in the shower rooms . Medical assistance was of poor quality .

According to the applicant , he twice attempted to lodge a complaint with the authorities about the conditions of his detention . On both occasions an administrative officer physically destroyed the written complaints .

The applicant submitted written testimonies from CARDINAL of his fellow mates who corroborated the description of cell no . CARDINAL provided by the applicant .

On arrival at the remand prison the applicant was taken first to the processing area ( сборное отделение ) . He was held for TIME in a CARDINAL - person cubicle equipped with a seat and artificial lighting . Then he was transferred to another cell which was equipped with running water , lighting , ventilation and a seat . The applicant spent DATE there .

On DATE the applicant was transferred to cell no . CARDINAL . The average number of inmates held with the applicant in that cell was CARDINAL . There were CARDINAL beds in the cell . At all times the applicant and other inmates were provided with an individual sleeping place and bed linen .

According to the excerpts from the remand prison population register submitted by the ORG , the number of inmates in the cell was as follows :

There were no metal shutters on the cell windows . They had been removed before DATE , that is before the applicant 's detention there began . The windows were provided with air vents which could be kept open . There was also exhaust ventilation which was in good working order . The prison was equipped with central heating which functioned properly at all times . The average temperature in the cells was never below + CARDINALC during the DATE and did not exceed + PERSON during DATE .

The cell was equipped with electrical lighting . During DATE lighting was on from TIME . At TIME lower - voltage bulbs were used to provide lighting for surveillance and safety reasons .

The applicant had the opportunity to take a shower once DATE . The bed linen was changed DATE . The remand prison had a centralised water supply system . The quality of the water was in full compliance with standards of hygiene .

The cell was disinfected according to the schedule approved by the head of the prison . The DATE cleaning was the inmates ' responsibility . The toilet was separated from the rest of the cell by a CARDINAL partition to ensure the privacy of the person using it .

The applicant received CARDINAL meals a day . The food ration was in full compliance with quality and quantity standards .

On DATE the applicant was transferred to remand prison no . GPE .

On DATE he lodged another complaint about the conditions of his detention in remand prison no . CARDINAL .

On DATE PERSON , an administrative officer at the remand prison , allegedly summoned the applicant to her office . She threatened to move him back to remand prison no . MONEY or make his life more difficult at remand prison no . MONEY if he continued to complain about the conditions of his detention .

On DATE ORG responded officially to the applicant 's complaint about conditions of detention at remand prison no . MONEY . The applicant was informed that the overcrowding in the cells had been caused by renovation work being carried out at the prison ; that the food rationing was in accordance with the applicable norms ; that the inmates were allowed to take a TIME shower once a week ; and that the bed sheets were changed on a DATE basis .

From DATE the applicant was detained in remand prison no . CARDINAL in PERSON . According to the applicant , he was held in cell no . CARDINAL , which measured CARDINAL sq . m and housed from CARDINAL to CARDINAL persons . It had CARDINAL sleeping places and the inmates had to take turns to sleep . The cell was infested with bedbugs , cockroaches , lice and rats . It was never cleaned . There were QUANTITY mattresses . No bed sheets , pillows or blankets were provided , nor was there any cutlery or tableware . Water was constantly leaking from a corroded sink onto the floor . The toilet was separated from the living area by a partition QUANTITY high . The inmates were allowed to shower once every ten days . Because of the small size of the table and bench , the inmates had to take turns to eat . There was no radio or clock . The inmates did not receive soap or buckets with which to do their laundry .


Violation of Art. 5-1;Violation of Art. 5-3

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of having murdered , in DATE , Mr GPE , whose mother became Speaker of ORG in DATE .

DATE and DATE he was remanded on the basis of DATE detention orders issued by ORG . The detention orders set out as grounds for his detention the fact that he had been suspected of having committed a serious offence punishable by DATE imprisonment ; moreover , the isolation of the suspect from society was considered necessary because he might abscond and obstruct the criminal investigation by influencing the witnesses .

In his appeals against the detention orders , the applicant argued , inter alia , that his detention was not necessary since there were no objective reasons to suspect him , that during his detention no investigation measures had been carried out and that he suffered from epilepsy and needed specialist medical treatment .

All his appeals were dismissed on the ground that the circumstances warranting his detention had not changed . On DATE the ORG reduced the duration of the detention order from DATE to DATE on the ground that “ during DATE no investigation measures were carried out ... the suspect did not have a criminal record , he has a family and minor children , a house , a job and serious health problems . ”

On DATE ORG submitted the applicant 's case file to the competent court . After that date the applicant continued to be detained without any detention order .

On DATE a habeas corpus request lodged by the applicant was rejected and he continued to be detained in pre - trial detention until DATE , when he was convicted and sentenced to DATE imprisonment .

NORP The relevant domestic law has been set out in the ORG 's judgments in the cases of ORG v. GPE ( no . CARDINAL , § CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .