FIFTH SECTION

DECISION

Application no . 32384/11 X and Y against Sweden

The European Court of Human Rights (Fifth Section), sitting on 21 October 2014 as a Committee composed of:

Boštjan M. Zupančič , President, Helena Jäderblom , Aleš Pejchal , judges,

and Stephen Phillips, Deputy Section Registrar ,

Having regard to the above application lodged on 19 May 2011,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicants, X and Y, are Swedish nationals, who were born in 1960 and 1961, respectively, and live in Sweden. The President granted the applicants ’ request for their identity not to b e disclosed to the public (Rule 47 § 4).

The Swedish Government (“the Government”) were represented by their Agent, Ms K. Fabian, of the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 2007 the first applicant gave birth to Z. In connection with the birth, Z needed surgery and the applicants then informed the medical staff that Z had been conceived through an egg donation which had taken place abroad. This information was entered in Z ’ s medical record.

The applicants requested the National Board of Health and Welfare ( Socialstyrelsen ) to remove the information about the egg donation from Z ’ s medical record, claiming that it was not medically justified to keep the information and that it never should have been noted in the first place.

In April 2008, the Board found that the applicants had given acceptable reasons for their application and that the information clearly was not needed for Z ’ s continued medical treatment. However, it considered that there were general reasons for the information to remain in the medical record. In this respect, the Board observed that if the egg donation had taken place in Sweden it would, according to the Genetic Integrity Act ( lagen om genetisk integritet , 2006:351), have been documented in a special medical record ( särskild journal ), with information about the donor, in order to enable the child to obtain information about his or her genetic origin. Since in the present case, the donation had taken place in another country, the above-mentioned Swedish legislation was not applicable and the information did not appear in a special medical record. For that reason, and since the Board found that this was important information which concerned the child, both medically and genetically, the information should be preserved in Z ’ s medical record.

The applicants appealed to the County Administrative Court ( länsrätten ) which, on 23 April 2009, upheld the Board ’ s decision and found that from a general viewpoint there was obviously no reason not to keep the information in the record.

Upon further appeal, the Administrative Court of Appeal ( kammarrätten ) granted leave to appeal and then upheld the lower court ’ s judgment in full.

On 7 December 2010, the Supreme Administrative Court ( Högsta förvaltningsdomstolen ) refused leave to appeal.

B. Developments after the introduction of the applications

By letters of 17 July 2013, the parties were informed that, on 10 July 2013, the President of the Chamber to which the case had been allocated (“the President”) had decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the application should be given to the Government and that they should be invited to submit written observations on the admissibility and merits of the case.

Moreover, in the letter to the applicants, they were informed, among other things, that, according to Rule 36 §§ 2 and 4 of the Rules of Court, they needed to be represented by an “advocate” before the Court at this stage of the proceedings. They were requested to complete and return the authority form by 25 September 2013. They were also given the contact details of the Swedish Bar Association.

In a fax dated 25 September 2013, the applicants informed the Court that they did not want to be represented by a lawyer as they did not want more people to know about their case. In light of this information, the Registry contacted the applicants by telephone to inform them of the importance of being represented at this stage of the proceedings and reminded them that lawyers have an obligation of secrecy to their clients. Still, in a letter dated 10 October 2013, the applicants maintained that they did not want to be represented by a lawyer.

In view of the above, on 21 October 2013, the President decided to grant the applicants leave to represent t heir own case before the Court.

Upon receipt of the Government ’ s observations, the applicants were requested to submit their observations in reply, together with any claims for just satisfaction, by 17 February 2014. On that date, the applicants sent a one page fax to the Court essentially stating that they wanted the relevant parts of Z ’ s medical journal to be deleted. They wanted to decide by themselves when to tell Z about his origin and they did not want any compensation from the State, despite their suffering and distress. The applicants neither replied to any of the arguments presented by the Government in their observations nor did they present any legal argumentation of their own.

On 14 March 2014, the President decided to withdraw the leave for the applicants to represent their own case, finding that a lawyer ’ s participation was necessary to properly protect the applicants ’ interest in the present case. The applicants were informed of this decision in a letter dated 25 March 2014 and were requested to appoint a representative, in accordance with Rule 36 § 4 (a) of the Rules of Court, by 22 April 2014.

In a fax dated 28 April 2014 the applicants asked for extra time to reply to the Court ’ s letter of 25 March 2014. In a letter dated 7 May 2014, the applicants were given additional time until 23 May 2014 to find a representative. The letter also explained that it was important that they appoint a lawyer in order to be able to submit legal argumentation in reply to the Government ’ s observations in the case.

Since no reply was received by the Court, the Registry sent a new letter, by registered mail, to the applicants on 3 July 2014 in which they were reminded of the terms of Rule 36 § 2 of the Rules of Court, according to which an applicant has to be represented for the purposes of the proceedings following notification of the application to the respondent Government. They were then again requested to designate a representative, by 25 July 2014, failing which “the Court may examine the case on the basis of the case-file as it now stands or decide to strike it out of its list of cases”. The letter further stated that this was a final warning.

The first applicant signed for receipt of this letter without dating it. However, the receipt was stamped by the Swedish postal service as being returned on 16 July 2014 and the Court received it on 28 July 2014.

The Court has received no response from the applicants.

COMPLAINTS

The applicants complained under Article 8 of the Convention that the right to respect for their family life had been violated by the national authorities ’ decision. They further invoked Article 14, in conjunction with Article 8, arguing that Z had been discriminated against by the refusal to delete the information from his medical record and by not transferring the information to a special medical record.

THE LAW

The Court reiterates that, according to its practice, failure to comply with the requirement of proper legal representation, as defined in Rule 36 §§ 2 and 4, may result in the discontinuation of the proceedings (compare, inter alia , Grimaylo v. Ukraine ( dec. ), no. 69364/01, 7 February 2006, and R.W. v. the Netherlands ( dec. ), no. 37281/05, 14 September 2010).

The Court notes that the applicants were asked by the Court on three occasions, on 25 March, 7 May and 3 July 2014, to designate a representative in the proceedings before the Court. It is clear that the applicants received at least the first and the third letter since they replied to the first, asking for extra time, and signed for the third letter which was sent by registered mail. Moreover, there is no reason to believe that they did not receive the second letter since it was sent to the same address and was not returned to the Court. However, the applicants did not reply to either of the two last letters. Having regard to the fact that the last letter contained a clear, and final, warning that the case might be struck out of the Court ’ s list of cases unless they designated a representative by 25 July 2014, and this time-limit has long since passed, the Court can discern no reason to deviate from its practice of considering that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention; see Grimaylo , ibid. ; R.W. v. the Netherlands , ibid. ; and Engwer v. Germany ( dec. ), no. 76871/12, 25 March 2014).

Moreover, the applicants ’ failure to reply to the Court ’ s last two letters may be seen as an indication that they no longer wish to pursue their application within the meaning of Article 37 § 1 (a) of the Convention.

Furthermore, the Court notes that, in its last letter to the applicants, it stated that it “may examine the case on the basis of the case-file as it now stands or ... ”. However, it considers that it cannot continue the examination of the application without having received observations by the applicants, containing legal arguments in reply to those of the Government and submitted by a representative designated by the applicants.

Lastly, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

Accordingly, the Court considers that the present application should be struck out of its list of cases.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar President