CONCURRING OPINION OF JUDGE VILLIGER

I agree with the reasoning of the judgment and its conclusions. However, I find it necessary to add the following remarks.

The Court is here confronted, not with a concrete complaint about a particular home birth, but with general and abstract legislation in the Czech Republic which effectively prohibits home births. As such, the Court is, exceptionally, exercising the role of a constitutional court examining legislation in the abstract.

In my opinion, this particular vantage point of the case calls for circumspection. The abstract examination of legislation must consider many, indeed countless possible situations and circumstances where the legislation may come to bear. This in itself calls for a large margin of appreciation of the respondent Government.

In addition, the Court is here called upon to examine health issues in a Contracting State, namely the dangers of home births for newborn babies. At the hearing before the Court on 10 September 2013, the respondent Government had among its advis e rs one of the leading obstetricians of the Czech Republic. He informed the Court that the country had one of the lowest (if not the lowest) mortality rates of newborn babies in Europe – due, inter alia , to the legislation which ensures that all babies are born in hospitals.

With such arguments put forward – and bearing its constitutional role in mind – it is particularly difficult for the Court to act as the highest supervisory medical body in Europe called upon to approve, or not to approve, the health system in a particular country.

This, too, calls for a large margin of appreciation of the respondent Government.

Having said that, it is clear that once the Court is confronted with an application concerning a particular case (and not undertaking an abstract examination), it will have to approach the case from a different vantage point, namely by concentrating on the specific circumstances of that case.

CONCURRING OPINION OF JUDGE YUDKIVSKA

I fully agree with the majority that Article 8 was not violated in the present case. Indeed, I have some doubts as to whether it is applicable in principle in the circumstances in issue.

It is true that Article 8 is “one of the most open-ended provisions of the Convention”, and its scope evolves naturally with developments in society. There are many events in our lives that form part of the notion of our “private life”. Still, Article 8 cannot be a non-exhaustive source of different rights deriving from the various aspects of this notion. This Court has held that Article 8 cannot be considered applicable each time an individual ’ s everyday life is disrupted, but only in the exceptional cases where the State ’ s failure to adopt measures interferes with that individual ’ s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world (see Zehnalová and Zehnal v. the Czech Republic ( dec. ), no. 38621/97, ECHR 2002-V).

I see a clear distinction between the case-law cited in paragraph 73 of the judgment concerning fundamental spheres of personal autonomy and family such as the decision whether or not to become a parent, on the one hand, and the situation in the present case on the other. I also believe that “the circumstances in which a child is born ” in the context of the identity of an abandoned child, as a pertinent aspect of her private life (see Odièvre v. France [GC], no. 42326/98, ECHR 2003 ‑ III, cited in the same paragraph), and the “circumstances” of delivery in the practical meaning of this word, cannot have a comparable level of importance. Whilst it is clear that childbirth itself forms part of a woman ’ s private life, I can hardly agree that all the particular aspects of giving birth engage the protection of the Convention. In this respect the case should also be distinguished from the recent case of Konovalova v. Russia (no. 37873/04, 9 October 2014 ), in which the uninvited presence of students during the applicant ’ s delivery amounted to interference with her private life, given that they “had access to the confidential medical information concerning the applicant ’ s condition”.

I understand perfectly that for many women home delivery is preferable because they find it far more comfortable psychologically. However, I believe that the Convention is aimed at safeguarding fundamental human rights, and Article 8 covers values that are essential to human dignity, personal autonomy, privacy and the ability to develop relationships with other people. It cannot be interpreted as requiring the State to guarantee the level of comfort an individual seeks, even at the crucial moment of giving birth. As Lord Bingham said, cited in Gillan and Quinton v. the United Kingdom (no. 4158/05, ECHR 2010), “It is true that ‘ private life ’ has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms... ”. A mere issue of a greater or lesser degree of psychological comfort does not, in my view, reach the required “level of seriousness”, and goes far beyond the original intentions of the drafters of the Convention to protect the private life of an individual against arbitrary interference by the public authorities.

Aside from these hesitations, I disagree with the majority ’ s conclusion in paragraph 78 that “the fact that it was impossib le for the applicants to be assisted by midwives when giving birth at home amounted to an interference with their right to respect for their private li fe ” (emphasis added). To my mind, even assuming that Article 8 is applicable, we can only talk about positive obligations under this provision.

Indeed, as justification for its approach to the case from the standpoint of negative obligations, the majority reiterates the “core arguments [of the applicants] ... that midwives are prohibited from assisting them at home births under the threat of a sanction... ”. However, while this can certainly be viewed as interference with midwives ’ professional lives, it has nothing to do with the State ’ s negative obligations toward s the applicants. Under Article 8 the authorities are obliged not to hinder the right claimed by the applicants to give birth at home, and the applicants are not forbidden to deliver at home – they would not be sanctioned for that. But they requested the provision of qualified medical assistance. In other words, they requested the State to organise the necessary facilities to enable them to give birth at home with minimal risk, that is, in conditions similar to those in maternity hospitals. Thus they criticised not an action but a lack of action where they were concerned, and the issue at stake clearly concerns positive obligations.

It is the long-standing and inevitable position of the Court that the boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition, and in both instances regard must be had to the fair balance to be struck between the competing interests. Still, whilst negative obligations prohibit interference with a right or interest unless the impugned interference is definitely justified, any positive obligation is less demanding. Thus, in order to secure a woman ’ s right to deliver in a preferable environment, a State is required to do only what can be reasonably expected in the circumstances, for instance to establish clear rules and define the conditions under which home delivery should be supported.

I appreciate the classic three-step proportionality test carefully applied by the majority in paragraphs 94-98 and the due respect accorded to the margin of appreciation of the State. Had the case been examined from the standpoint of positive obligations, the wide margin of appreciation would, however, immediately limit the scope of the State ’ s duty in this delicate bioethical sphere, since giving greater consideration to women ’ s choice to deliver at home would weaken the protection of the lives of mothers and babies in the specific socio-economic conditions of the Czech Republic.