DISSENTING OPINION OF Mr M.A. NOWICKI, Mrs G.H. THUNE,

MM. P. LORENZEN AND E.A. ALKEMA

We are unable to agree with the majority that there has been no violation of Article 8 of the Convention in this case for the following reasons.

In the present case two rights of fundamental nature are at stake: on the one hand, restoration of the applicant's legal capacity and, on the other hand, the right to have the integrity of the person protected as required by Article 8 of the Convention.  Moreover, it is a paradoxical case in that the applicant seeks to materialise the restoration of his legal capacity but refuses to be examined for that purpose in a mental hospital.

Of course, a waiver of a right guaranteed in the Convention - in so far as it is permissible - is possible under certain conditions.  The European Court held: [that it] "must be established in an unequivocal manner" [...] [and] "that in the case of procedural rights a waiver, in order to be effective for the Convention purposes, requires minimum guarantees commensurate to its importance" (Eur. Court HR, Pfeifer and Plankl v. Austria judgment of 25 February 1992, Series A no. 227, pp. 16-17, para. 37).  The Commission has added in Poitrimol v. France (Eur. Court HR, judgment of 23 November 1993, Series A no. 277-A, p. 28, para. 46): "In particular, waiver of the right to defend oneself is inconceivable save in exceptional cases and must in no case be the result of constraint."

In the instant case the restoration of the applicant's legal capacity required, in the domestic court's opinion, an examination which the applicant, however, considered intolerable and, therefore, could only be effected through restraint (  92 of the report). Yet, since the power of the court in virtue of Section 186 (3) of the Code of Civil Procedure apparently is of a discretionary character and since the forcible examination of the applicant in a mental hospital for two weeks is a serious interference with his private life, the domestic court ought - in our opinion - to have refrained from such an order.  The court could instead have considered the unwillingness on the part of the applicant as a waiver of his right to have his legal capacity restored to him.

In balance, we find that the interference with the applicant's private life was not "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention and that, accordingly, the aforesaid Article has been violated.