PARTLY DISSENTING OPINION OF JUDGE NICOLAOU

1. In my opinion, the application should have been dismissed as having been lodged out of time.

2. Article 35 § 1 provides that the Court may only deal with a matter if it is brought before it within a period of six months from the date on which the final decision is taken. The starting point is not always apparent, however. It may be that it is not marked by a decision or is otherwise unclear. Continuing situations in which Convention rights are infringed may present particular difficulty as to when time begins to run. Our case-law provides guidance on how to approach such cases. In Varnava and Others v. Turkey ([GC], nos. 16064/90 and 8 others, §§ 159 and 161, ECHR 2009), it was stated in general terms that the time-limit does not apply to continuing situations. That is not quite accurate for, as subsequently explained in that judgment, in such situations the ongoing breach simply means a renewal of the start of the period each day, so the time-limit does in principle apply. When continuing situations cease, time begins to run uninterrupted for the whole six-month period. The difficulty in some cases lies in ascertaining the moment in time at which the situation has come to an end. As pointed out in Varnava (cited above, § 161), not all continuing situations are the same since the nature of the situation may be such that the passage of time affects what is at stake. It may, therefore, be necessary to examine how a situation has developed in order to assess the significance of events or the prospects of achieving a solution and to judge what would be reasonable by way of a starting point in the particular circumstances of the case. The Court takes a broad and practical view of such matters.

3. The majority take the view that the present case is one of a continuing situation of an unlimited duration, co-extensive with the existence of Law no. 40 of 19 February 2004, which came into force on 10 March 2004. My own view is that the applicant was not entitled to wait ad infinitum before seeking redress.

4. The facts presented by the applicant are sketchy. Sometime in 2002 five embryos, which were obtained as a result of in vitro fertilisation treatment of the applicant and her partner, were placed in cryopreservation for the purpose of implantation at a future time. Before the end of the following year the applicant’s partner was killed in Iraq while reporting on the war. After that, at an unspecified time, the applicant decided not to have the embryos implanted. Subsequently, she made a number of unsuccessful oral requests that the embryos be released for use in scientific research. The number of requests and the times at which they were made have not been specified. It can be assumed that they were all made after Law no. 40 had come into force, for previously there had been no impediment to donating the embryos, for whatever purpose. Furthermore, it remains unexplained why the applicant did not bring the matter to Strasbourg earlier, namely, soon after the new Law came into force, and instead waited for more than seven years before doing so.

5. It must have been clear to the applicant that under the new Law her requests could not be granted. This Law provides, in so far as relevant, as follows.

Section 13 – Experiments on human embryos

“(1) It is forbidden to experiment on a human embryo.

(2) Clinical and experimental research on a human embryo shall be authorised only on condition that it is performed exclusively for therapeutic or diagnostic purposes with the aim of protecting the health and development of the embryo and that no alternative methods exist.”

6. Under section 13(5) of that Law, infringement of the prohibition entails severe sanctions, including imprisonment for up to six years.

7. There are of course instances where legislative provisions do indeed give rise to a continuing interference with the exercise of Convention rights under either Article 8 or Article 14 taken together with Article 8, of a kind that is not attenuated and does not cease over time unless the cause is removed. The majority cite Dudgeon v. the United Kingdom , 22 October 1981, § 41, Series A no. 45; Norris v. Ireland , 26 October 1988, § 38, Series A no. 142; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 54, 7 November 2013; and S.A.S. v .France [GC], no. 43835/11, § 110, ECHR 2014, and these are not the only cases on the subject. The majority acknowledge that in those cases the effect of the impugned legislation on the daily lives of the complainants “was more substantial and more direct than in the present case” (see paragraph 111 of the present judgment). They do not, however, attach importance to a difference which I, for my part, consider crucially important. In those cases the legislative provisions complained of had, in one way or another, a tremendous practical impact on the daily lives of the complainants, with decisive and far-reaching effects on how they conducted themselves and organised their affairs. There are no such issues in the present case. The majority content themselves merely with the fact that there is a “biological link between the applicant and her embryos and the plan to start a family that was at the origin of their creation” (ibid.), notwithstanding that, in regard to the second proposition, the plan to start a family by using the embryos was abandoned early on and has not been a live issue in the case. They conclude that the prohibition in question “does undeniably have an impact on the applicant’s private life” (ibid.).

8. In the admissibility decision on the six-month time-limit (see Parrillo v. Italy (dec.), no. 43028/05, 3 November 2015), the majority go no further than I have already stated. Admissibility is premised on the view, which I do not share, that the new Law has an unending impact on the applicant’s life. Subsequently, however, in the present judgment, the majority explain what they see as the particular nature, and therefore force, of that impact. Paragraphs 158 and 159 read as follows:

“158. In the instant case the Court must also have regard to the link existing between the person who has undergone in vitro fertilisation and the embryos thus conceived, which link is due to the fact that the embryos contain the genetic material of the person in question and accordingly represent a constituent part of that person’s genetic material and biological identity.

159. The Court concludes that the applicant’s ability to exercise a conscious and considered choice regarding the fate of her embryos concerns an intimate aspect of her personal life and accordingly relates to her right to self-determination. Article 8 of the Convention, from the standpoint of the right to respect for private life, is therefore applicable in the present case.”

9. I find myself at a considerable distance from the majority’s position that the matter in question relates to the applicant’s right to self-determination.

In fact it seems to me, with very great respect, that later on the majority also distance themselves from that initial position. It is interesting to note in this regard that when dealing with the specifics of the case the majority say, at paragraph 174 of the present judgment, that

“... the instant case does not concern prospective parenthood. Accordingly, while it is of course important, the right invoked by the applicant to donate embryos to scientific research is not one of the core rights attracting the protection of Article 8 of the Convention, as it does not concern a particularly important aspect of the applicant’s existence and identity.”

10. I agree with that. Further down, at paragraph 192, the majority observe that

“... while the right asserted by the applicant to decide the fate of her embryos relates to her wish to contribute to scientific research, that cannot however be seen as a circumstance directly affecting the applicant.”

11. Again, I agree. Unlike in the relevant cases cited above, where reliance was placed on the fact that the applicants were directly affected by the impugned legislation, in the present case the applicant was not directly affected. What she contemplated doing – namely, donating the embryos for research – did not directly affect her in her private life. I fail to understand why the majority, examining the applicant’s arguments in the light of the various aspects of the new Law, could not conclude from the very beginning, as they do in paragraph 195, that whatever inconsistencies may or may not be found in the new Law, “... these are not capable of directly affecting the right invoked by her in the instant case”.

12. This conclusion is entirely in line with what I have already explained as the determinative difference between the present case and the above-cited judgments in Dudgeon , Norris , Vallianatos and Others and S.A.S. v. France .

13. My own opinion that the application should have been declared inadmissible for exceeding the time-limit is based on what I consider to be the rather tenuous nature of the link between the applicant and the frozen embryos. It seems to me that although there is indeed a meaningful link, since the embryos emanated from the genetic material of the applicant and her partner, and this link brings the matter within the ambit of Article 8, it does so only at the periphery and amounts to no more than the possibility, on the part of the applicant, of expressing a wish concerning their fate. On receiving a negative response, and as there was no adequate domestic remedy to be exhausted, the limitation period should have started running at that point for the purpose of subjecting the relevant legislative restriction to review under the Convention.

14. Having regard to the position set out above, it cannot be said that that aspect of Article 8 gives the applicant a right which lasts for an indefinite period of time. The new Law came into force about four months after her circumstances had dramatically changed and, if the six-month time-limit is added onto that, one would be tempted to think there was enough time for her to decide whether she wished to have a say in the matter. It is also possible, however, to approach the question more broadly and, on the basis of a continuing situation created by the new Law, examine what may have been a reasonable time frame within which a person in the applicant’s position, in the sad circumstances in which she found herself, could have sufficiently reflected and acted. What I certainly cannot accept is that the applicant was entitled to unlimited time for setting in motion the Strasbourg machinery of human rights protection.