Issue 33 August 2006 - Human Rights Stop Press: fertility treatment, education and double jeopardy

With the Court of Session being in vacation there is little to report on me Scottish scene just now. Even the High Court of Justiciary has produced few human rights cases of late.

Strasbourg has been busy. Two interesting cases were recently referred to the Grand Chamber of the European Court for decision.

 

In Evans v UK (no. 6339/05), the applicant is a 34-year-old British national. On July 12, 2000 Ms Evans and her partner J started fertility treatment at the Bath Assisted Conception Clinic. On October 10, 2000 during an appointment at the clinic, Ms Evans was diagnosed with a pre-cancerous condition of her ovaries and was offered one cycle of in vitro fertilization (IVF) treatment prior to the surgical removal of her ovaries. During the consultation held that day with medical staff Ms Evans and her partner J were informed that they would each need to sign a form consenting to the treatment and that, in accordance with the provisions of me Human Fertilisation and Embryology Act 1990 ("the 1990 Act"), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant's uterus.

Ms Evans considered whether she should explore other means of having her remaining eggs fertilised, to guard against the possibility of her relationship with J ending. J reassured her that that would not happen. On November 12, 2001 the couple attended the clinic for treatment, resulting in the creation of six embryos which were placed in storage and, on November 26, 2001, Ms Evans underwent an operation to remove her ovaries. She was told she would need to wait for two years before the implantation of the embryos in her uterus.

In May 2002 the relationship between the applicant and J ended and subsequently, in accordance with the 1990 Act, he withdrew his consent to the continued storage of the embryos or use of them by the applicant. The applicant brought proceedings before the High Court seeking, among other things, an injunction to require J to restore his consent. Her claim was refused on October 1, 2003, J having been found to have acted in good faith, as he had embarked on the treatment on the basis that his relationship with Ms Evans would continue. On October 1, 2004, the Court of Appeal upheld the High Court's judgment. Leave to appeal was refused.

On January 26, 2005 the clinic informed the applicant that it was under a legal obligation to destroy the embryos, and intended to do so on February 23, 2005.

On February 27, 2005 the ECHR, to whom the applicant had applied, requested, under Rule 39 (interim measures) of the Rules of Court, that the United Kingdom Government take appropriate measures to prevent the embryos being destroyed by the clinic before the Court had been able to examine the case. The embryos were not destroyed.

The applicant, for whom the embryos represent her only chance of bearing a child to which she is genetically related, had undergone successful treatment for her pre-cancerous condition and is medically fit to continue with implantation of the embryos. It was understood that the Bath clinic was willing to treat her, subject to J's consent.

The applicant complained that requiring the father's consent for the continued storage and implantation of the fertilised eggs was in breach of her rights under Arts 8 (right to respect for private and family life) and 14 (prohibition of discrimination) and the rights of the embryos, under Art.2 (right to life).

In its Chamber judgment of March 7, 2006 the Court held unanimously, that there had been no violation of Art.2 concerning the applicant's embryos; by five votes to two, that there had been no violation of Art.8 concerning the applicant; and, unanimously, that there had been no violation of Art.14, concerning the applicant. The Court also decided to continue to indicate to the United Kingdom Government under Rule 39 of the Rules of Court that it was desirable in the interests of the proper conduct of the proceedings that the Government take appropriate measures to ensure that the applicant's embryos were preserved until the Court's judgment became final or pending any further order. The case was referred to the Grand Chamber at the applicant's request.

The other case is D.H. V Czech Republic(no. 57325/00). There the applicants are 18 Czech nationals of Roma origin who were born between 1985 and 1991 and live in the Ostrava region of the Czech Republic.

Between 1996 and 1999 they were placed in special schools for children with learning difficulties unable to follow the ordinary school curriculum. By law, the decision to place a child in a special school is taken by the head teacher on the basis of the results of tests to measure the child's intellectual capacity carried out in an educational psychology and child guidance centre, and requires the consent of the child's legal representative.

Fourteen of the applicants sought a review by the Education Department on the grounds that the tests performed had been unreliable and that their parents had not been sufficiently informed of the consequences of giving consent. The Education Department found that the placements had been made in accordance with the statutory rules.

In addition, 12 of the applicants appealed to the Constitutional Court. They argued that their placement in special schools amounted to a general practice that created segregation and racial discrimination through the coexistence of two autonomous educational systems, namely special schools for the Roma and "normal" primary schools for the majority of the population. That appeal was dismissed on October 20, 1999

The applicants complained under Art.2 of the First Protocol (right to education), taken alone and together with Art.14 (prohibition of discrimination), that they had suffered discrimination in the enjoyment of their right to education on account of their Roma origin.

In its Chamber judgment of February 7, 2006 the Court held, by six votes to one, that there had been no violation of Art. 14, taken in conjunction with Art.2 of the First Protocol. The case was referred to the Grand Chamber at the applicants' request.

In Iosub Caras v Romania (no. 7198/04) the Court found a violation of Art.8. The applicants, Andrei Dorian Iosub Caras and his daughter Iris losub Caras, are Israeli and Romanian nationals. Mr Iosub Caras was born in 1972 and lives in Petah Tikva (Israel). His daughter was born in 2001 and currently lives in Romania. Mr losub Caras and his wife, both Romanian and Israeli citizens, have had their permanent residence in Israel since 1997. Their child Iris was born there, in 2001, and acquired Israeli citizenship from birth.

At the end of their visit to Romania in September 2001, Mr losub Caras returned to Israel while his wife and daughter remained in Romania. Mr Iosub Caras later filed a request for the return of the child, under the Hague Convention of October 25, 1980 ("the Hague Convention''), on the civil aspects of international child abduction, while his wife filed for divorce and custody of the child with the Romanian courts.

Mr losub Caras filed his request through the Israeli Ministry of Justice to the Romanian Ministry of Justice ("the Ministry") which received it on November 26, 2001. Mr Iosub Caras claimed that his wife was wrongfully retaining their daughter in Romania, without his consent. He asked the Ministry to apply for a stay in the divorce proceedings which his wife had instituted, for as long as the Hague proceedings were pending.

In January 2002, the Ministry, acting as the Central Authority for the purpose of the Hague Convention, instituted proceedings on behalf of Mr losub Caras for the return of the child. In a final decision of June 5, 2003 the Bucharest Court of appeal rejected the request on the ground that, since the date of the commencement of the Hague proceedings, another Romanian court had ruled on the divorce of the parents and had granted sole custody of the child to the mother, in a final decision of September 18, 2002.

The applicants complained that their right to respect for their family life had been violated by the courts that had dealt with both the Hague Convention and the divorce proceedings and that the authorities had not acted expeditiously in the Hague proceedings. They relied in particular on Art.8, Art.6 (1) and Art.1 of the First Protocol.

The Court noted that under the Hague Convention, the authorities were obliged to take all necessary measures to prevent harm to the child or prejudice to the interested parties. However, although the authorities had knowledge of the existence of the divorce proceedings before the Romanian courts, they did nothing to defer the judgment until the Hague proceedings were finalised. The Court found that by failing to inform the divorce courts of the existence of the Hague proceedings, the authorities, in particular the Ministry, deprived the Hague Convention of its very purpose, that is to prevent a decision on the merits of the right to custody being taken in the State of refuge.

In matters pertaining to the reunification of children with their parents, the adequacy of a measure is also to be judged by the swiftness of its implementation. Despite this recognised urgency, a period of more than 18 months elapsed from the date on which Mr losub Caras lodged his request for the return of the child to the date of the final decision. No satisfactory explanation was put forward by the Government for this delay. It followed that the time it took for the courts to adopt the final decision in the present case failed to meet the urgency of the situation.

The Court concluded that the Romanian authorities failed to fulfil their positive obligations and held unanimously that there had been a violation of Article 8. It further held unanimously that there was no need to examine the complaints under Article 6(1) and Article 1 of the First Protocol. Mr Iosub Caras was awarded EUR 20,000 in respect of non-pecuniary damage and EUR 1,500 for costs and expenses.

In Fadin v Russia (no. 58079/00) the Court found no violation of Art.4 of the Seventh Protocol or Art.6(1). Article 4 of the Seventh Protocol secures protection against double jeopardy.

The applicant is a Russian national who was born in 1954 and lives in Tula (Russia). On May 7, 1996 the applicant was arrested and later convicted of attempted rape and murder. His conviction was quashed on appeal and a psychiatric examination showed that the applicant suffered from schizophrenia. On March 24, 1998 the Tula Regional Court reclassified the charges, adding the words "with aggravating circumstances". It also ordered his compulsory treatment in a psychiatric hospital.

On December 7, 1999, following a request by the applicant for a full review of his case, the Supreme Court of Russia quashed the regional court's decision in supervisory review procedure and remitted the case for fresh examination. The regional court reclassified the charges to disorderly behaviour and acquitted him of the murder charges. On October 2,2002 the Supreme Court of Russia upheld the judgment.

The applicant alleged in particular that the criminal proceedings against him had been unreasonably long and that he had been tried twice for the same offence. He relied on Art.6 (1) (right to a fair trial within a reasonable time) and Art.4 of the Seventh Protocol (right not to be tried or punished twice). The Court found that the applicant's complaint raised no issues under Art.4 (1) of the Seventh Protocol and fell to be examined solely under Art.6(1).

The Court firstly noted that only the resumed proceedings fell with its competence, the Convention having entered into force in respect of Russia on May 5, 1998. The Court observed that it was the applicant himself who was the initiator of the supervisory review of the Tula Regional Court's decision and that as such he could not claim to be a victim of a breach of the principle of legal certainty. Furthermore, it found that the domestic courts reached reasoned conclusions concerning the charges against the applicant who had ample opportunity to state his case and contest any evidence he considered false. There was no evidence of any unfairness within the meaning of Art.6 in that respect. Therefore the Court held unanimously that there had been no violation of Art.6 (1) and Art.4 of the Seventh Protocol as regards the supervisory review of the Tula Regional Court's decision and the outcome of the criminal proceedings.

The Court noted that the proceedings had lasted two years and nine months and 26 days. Having regard to the circumstances of the case, the Court considered that that period did not exceed a "reasonable time" within the meaning of Art.6 (1) and did not find that the conduct of the domestic authorities led to any significant delays in the proceedings. Accordingly, the Court held unanimously that there had been no violation of Art.6 (1) as regards the length of the criminal proceedings.

In Güzel v. Turkey (No.2) (no. 65849/01) the Court found violations of Art.6 (1) and Art.10. The applicant is a Turkish national and was a former minister and member of Parliament, he was Chairman of the Renaissance Party at the material time.

On 13 June 1998 the applicant gave a speech in his capacity as chairman of a political party at a meeting on human rights organised by the municipal authorities of Kayseri. In speaking on social issues, the applicant criticised Government actions and policy.

The applicant was prosecuted for incitement to hatred and hostility on the basis of a distinction founded on religion and was sentenced to one year's imprisonment by the Ankara National Security Court. The Court of Cassation upheld his conviction on July 3, 2000.

On January 12, 2001, before the applicant had started to serve his prison sentence, the national security court deferred execution of his sentence for five years. The applicant alleged that his criminal conviction had infringed his right to freedom of expression. He complained, further, that the proceedings before the Court of Cassation had been unfair as he had been given no opportunity to respond to the written opinion of Principal State Counsel. He relied on Art.l0 and Art.6 (1).

The Court considered that the grounds advanced by the Turkish courts could not be regarded in themselves as sufficient to justify the interference with the applicant's right to freedom of expression. The applicant had been speaking in his capacity as a politician, in the context of his role as a player on the Turkish political scene, and had not been encouraging the use of violence, armed resistance or revolt. Nor was this an instance of hate speech, which, in the Court's opinion, was the essential factor to be taken into consideration. The effect of deferring execution of sentence had been to censor part of the applicant's activities as the chairman of a political party during the relevant period and to severely restrict his ability to voice criticism in public, when such criticism had a role to play in a public debate whose existence could not be denied. The Court therefore held unanimously that there had been a violation of Art.10.

The Court referred to its finding in previous cases that the non-communication of Principal State Counsel's opinion, in view of the nature of his submissions and of the defendant's inability to make written observations in reply, entailed a breach of Art.6(1). Seeing no reason to depart from that conclusion in the present case, the Court held unanimously that there had been a violation of Art.6 (1).

By way of just satisfaction, the Court awarded the applicant EUR 4,000 for non-pecuniary damage and EUR 3,000 for costs and expenses.