Inseminazione artificiale esclusa per gli ergastolani – Corte Europea dei Diritti dell’Uomo di Strasburgo, Sezione IV, Sentenza del 18/04/2006


(DICKSON C. REGNO UNITO) DIRITTO AL RISPETTO
DELLA VITA PRIVATA E FAMILIARE ” DIRITTO DI UN ERGASTOLANO ALL’INSEMINAZIONE
ARTIFICIALE ” ESCLUSIONE.

La Corte europea ha respinto il ricorso di un
detenuto britannico condannato all’ergastolo nel quale veniva dedotta la
violazione della Convenzione per essergli stata negata dalle autorità nazionali
l’autorizzazione per l’inseminazione artificiale. Secondo i giudici di
Strasburgo, non sarebbe stata dimostrata dal ricorrente l’arbitrarietà o
l’irragionevolezza della decisione delle autorità britanniche, nè che il
verdetto non costituisse un ”giusto equilibrio” tra l’interesse generale della
comunità e gli interessi dell’individuo. In particolare, sulla decisione delle
autorità britanniche aveva pesato la gravità del crimine commesso nonchè il
futuro benessere di un eventuale figlio alla luce della situazione personale dei
genitori.

 


Corte Europea dei Diritti dell’Uomo di
Strasburgo, Sezione IV, Sentenza del 18/04/2006


 


FORMER

FOURTH SECTION

CASE OF DICKSON v. THE UNITED KINGDOM

(Application no. 44362/04)

JUDGMENT

STRASBOURG

18 April 2006

[ This judgment will become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.]

In the case of Dickson v. the United Kingdom,

The European Court of Human Rights (Former Fourth Section), sitting as a Chamber
composed of:

Mr J. CASADEVALL, President,

Sir Nicolas BRATZA,

Mr G. BONELLO,

Mr R. MARUSTE,

Mr S. PAVLOVSCHI,

Mr L. GARLICKI,

Mr J. BORREGO BORREGO, judges,

and Mr M. O’BOYLE, Section Registrar,

Having regard to the observations of the parties,

Having deliberated in private on 28 March and 4 April 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 44362/04) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two British nationals, Kirk and Lorraine Dickson
(“the applicants”), on 23 November 2004.

2. The applicants, who were granted legal aid, were represented by Mr E.
Abrahamson, a lawyer practising in Liverpool. The United Kingdom Government
(“the Government”) were represented by their Agent, Mr J. Grainger, of the
Foreign and Commonwealth Office.

3. On 8 March 2005 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the Convention, it decided
to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1972 and 1958, respectively. The first applicant
is in prison (Dovergate Prison, Uttoxeter) and the second applicant lives in
Hull.

5. In 1994 the first applicant was convicted of murder and sentenced to life
imprisonment with a tariff of 15 years. He is imprisoned in a private prison and
his earliest expected release date is 2009. He has no children.

6. In 1999 he met the second applicant, while she was also imprisoned, by
correspondence through a prison pen pal network. She has since been released,
although it is not clear when. In 2001 the applicants married. The second
applicant already had three children from other relationships.

7. Since the applicants wished to have a child, in October 2001 the first
applicant applied for facilities for artificial insemination. In December 2002
the second applicant joined this application. Their solicitors made
representations to the Secretary of State, relying on the length of the
relationship and the fact that, given the first applicant’s earliest release
date and the second applicant’s age, it was unlikely that the applicants would
be able to have a child together without the use of artificial insemination
facilities.

8. In a letter dated 28 May 2003 the Secretary of State refused their
application. He first set out his general policy (“the policy”):

“Requests for artificial insemination by prisoners are carefully considered on
individual merit and will only be granted in exceptional circumstances. In
reaching decisions particular attention is given to the following general
considerations:

– whether the provision of AI facilities is the only means by which conception
is likely to occur

– whether the prisoner’s expected day of release is neither so near that delay
would not be excessive nor so distant that he/she would be unable to assume the
responsibilities of a parent

– whether both parties want the procedure and the medical authorities both
inside and outside the prison are satisfied that the couple are medically fit to
proceed with AI

– whether the couple were in a well established and stable relationship prior to
imprisonment which is likely to subsist after the prisoner’s release

– whether there is any evidence to suggest that the couplès domestic
circumstances and the arrangements for the welfare of the child are
satisfactory, including the length of time for which the child might expect to
be without a father or mother

– whether having regard to the prisoner’s history, antecedents and other
relevant factors there is evidence to suggest that it would not be in the public
interest to provide artificial insemination facilities in a particular case.”

He then gave his reasons for refusal in the present case. On the one hand, the
second applicant would be 51 years old at the earliest possible date of release
of the first applicant so that the likelihood of her being able to conceive
naturally was small. Both applicants were also in full agreement about their
wish to conceive artificially. However, on the other hand, and in the first
place, the relationship was established while they were in prison and had not
been tested in the normal environment of daily life. Secondly, there was
insufficient provision in place to provide independently for the material
welfare of any child which might be conceived. Thirdly, there was little in the
way of an immediate support network in place for the mother and any child which
might be conceived. Fourthly, any child would be without a father for an
important part of its childhood years. Fifthly, in light of the violence of the
first applicant’s crime, there would be legitimate public concern that the
punitive and deterrent elements of his sentence of imprisonment were being
circumvented if he were allowed to father a child by artificial insemination.

9. The applicants sought leave to apply for judicial review of the Secretary of
Statès decision. On 29 July 2003 the High Court refused leave on the papers.
The applicants renewed their application and on 5 September 2003 leave was again
refused after an oral hearing. On 13 October 2003 the applicants introduced an
application to this Court and it was declared inadmissible in December 2003 on
the basis that they had failed to exhaust domestic remedies (App. No. 34127/03).
The applicants then applied to the Court of Appeal for leave to appeal.

10. On 30 September 2004 their application was unanimously rejected by the Court
of Appeal. Auld LJ relied in principle on the judgment of the Court of Appeal in
R (Mellor) v Secretary of State for the Home Department ([2001] 3 WLR 533). He
pointed to the similarity of the arguments put by the applicants in the present
case and in the Mellor case. Auld LJ relied on the conclusion of Lord Phillips
in the Mellor case (see “Relevant Domestic Law and Practice” below) and
commented:

“… Lord Phillips clearly had in mind, and he set it out in the course of his
judgment, the provisions of Article 8.2 of the Convention setting out various
matters that may justify interference with the right to respect for private and
family life, including the protection of health or morals and the protection of
the rights and freedom of others. It seems to me that concern, not only for the
public attitude to the exercise by prisoners of certain rights in prison which
they would take for granted outside, and concern for the rights of a putative
child in the upbringing it would receive depending on the circumstances and the
length of the imprisonment involved, are highly relevant circumstances for the
purposes of Article 8.2…

Accordingly, in my view, it is not open to [the applicants] to seek to re-open
the validity of the Secretary of Statès policy which this court has held in
Mellor is rational and otherwise lawful. As Lord Phillips made clear in his
judgment in that case, although the starting point of the policy is that
deprivation of facilities for artificial insemination may prevent conception
altogether, the finishing point is whether there are exceptional circumstances
for not applying the policy …”

He then noted that on occasions the Secretary of State had “dis-applied the
policy” when the circumstances had merited it: he referred to a letter from the
Treasury Solicitor to the applicants which apparently demonstrated this fact and
pointed out that counsel for the Secretary of State had informed the court that
there had been other such instances.

11. Auld LJ then applied the policy to the present case:

“To the extent that [the applicants have] suggested that he Secretary of State
has irrationally misapplied his own policy to the circumstances, or has
otherwise acted disproportionately in applying it, I would reject the
suggestion. There is no basis for saying that the Secretary of Statès approach
can be equated, as [the applicants] suggested, with the extinction of a
fundamental right. It was a weighing of the starting point of the policy against
the other considerations for which the policy itself provided, an exercise of
discretion and proportionality in respect of which, in my view, the Secretary of
State cannot be faulted on the circumstances as presented to him.”

12. The other judges also relied on the judgment in Mellor. Mance LJ said the
following:

“The case of Mellor is also clear authority that considerations and potential
consequences of public interest over and above a narrow view of the requirements
of good order and security in prison can play a role in a decision whether or
not to permit such artificial insemination… I note that, in addition to the
European authorities specifically mentioned in paragraph 42 by Lord Phillips,
the Commission, in its decision in Draper v the United Kingdom App No. 8186/78
at paragraphs 61 to 62, also recognised the potential relevance of more general
considerations of public interest.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Prison Rules

13. The Secretary of State is empowered to make rules for the management of
prisons by Section 47 of the Prison Act, 1952, which, in so far as material,
provides as follows:

“The Secretary of State may make rules for the regulation and management of
prisons… and for the classification, treatment, employment, discipline and
control of persons required to be detained therein…”

14. The relevant rules are the Prison Rules 1999 (SI 1999 No 728). Rule 4
provides as follows:

“Outside Contacts

(1) Special attention shall be paid to the maintenance of such relationships
between a prisoner and his family as are desirable in the best interests of
both.

(2) A prisoner shall be encouraged and assisted to establish and maintain such
relations with persons and agencies outside prison as may, in the opinion of the
governor, best promote the interests of his family and his own social
rehabilitation.”

B. R (Mellor) v Secretary of State for the Home Department [2001] 3 WLR 533

15. The long standing policy of the prison service, set out above in the letter
of Secretary of State of 28 May 2003 was challenged by a Mr Mellor, a prisoner
serving a life sentence for murder. He was 29 years of age at the time his case
came before the Court of Appeal with a minimum of 3 years’ imprisonment to
serve. His wife was 25 of age. At his earliest release she would have been 28.
He and his wife had been refused artificial insemination facilities: it was
considered that there was nothing exceptional about their case.

16. They challenged the policy rather than its application to their case arguing
that it was an unjustified interference with their Article 8 rights. They
distinguished that policy from the policy on conjugal visits: the latter gave
rise to pragmatic (security) concerns whereas artificial insemination did not.
The Government argued that the policy was justified: (a) it was an explicit
consequence of imprisonment that prisoners should not have the opportunity to
found a family; (b) there would likely be serious and justified public concern
if prisoners continued to have the opportunity to conceive children while in
prison; and (c) it was undesirable, as a general rule, for children to be
brought up in single parent families.

17. The Court of Appeal considered, while the first reason did no more than
restate the policy, the second and third reasons were legitimate justifications
for the policy. In giving judgment for the court, Lord Phillips said (at
paragraphs 44 ff):

“[The Secretary of State] submitted that this passage demonstrated that public
perception was a legitimate element of penal policy. I agree. Penal sanctions
are imposed, in part, to exact retribution for wrongdoing. If there were no
system of penal sanctions, members of the public would be likely to take the law
into their own hands. In my judgment it is legitimate to have regard to public
perception when considering the characteristics of a penal system.

Furthermore, [the applicants’] submissions did not recognise the significance of
the word “justified” in the phrase “justified public concern”. A policy which
accorded to prisoners in general the right to beget children by artificial
insemination would, I believe, raise difficult ethical questions and give rise
to legitimate public concern…

… [the applicants] submitted that [the disadvantage of single parent families]
was not a material consideration when formulating prison policy… Again, I do
not agree. By imprisoning the husband the State creates the situation where, if
the wife is to have a child, that child will, until the husband’s release, be
brought up in a single parent famil

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