JOINT CONCURRING OPINION OF JUDGES SAJÓ AND TULKENS

While the autonomy aspect of the right to respect for private life makes it clear that there is a right to become or not to become a parent ( Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-IV), and in order to be effective the conditions of the exercise of that right are also to be respected, we find it necessary to clarify why this right to respect for parental choice necessitates a minimum of positive regulation. Such choice would have been a liberty in the 19 th century. As long as there is no State interference with the freedom, there seems to be no problem. But the background assumption of classical liberalism does not necessarily work in the contemporary welfare State, especially in the medical environment. In this welfare system practically everything is regulated; regulation is the default, and only what is regulated is considered safe and acceptable. Suddenly, in the absence of positive regulation, what was a matter of uncontested private choice becomes unusual and uncertain. In a very densely regulated world some disadvantages emerge for freedoms without regulatory endorsement.

In the present case, the increasing difficulty to find midwives and supportive obstetricians, troubles with the civil registration, etc. might result in an environment which is hostile to the freedom in question. While midwives are recognised as a profession according to European Union law and entitled to provide services, including to care for and assist the mother during labour , where their activities run into administrative difficulties – like for example denial of a tax ID required for service providing – home birth becomes a hard and risky choice, even if the choice itself remains formally without interference. The sanctions applicable to midwives discourage their participation in home - birth - related activities. Where regulation is the default, as in the medical context, lack of enabling regulation may be detrimental to the exercise of the right, and traditional non-interference will not be sufficient. This may be one of the many unpleasant consequences of living in an overregulated world. It is here that an affirmation of a liberty in positive law is warranted.

In the present case the liberty is not self-explanatory as the expectant mother has to interact during the period of pregnancy with authorities and regulated professionals who act as figures of some kind of public authority vis-à-vis the pregnant person, who is understandably very vulnerable because of her dependency. It is this consideration that makes us believe that a freedom may necessitate a positive regulatory environment which will produce the legal certainty providing the right to choose with effectiveness. Without such legal certainty there is fear and secrecy, and in the present context this may result in fatal consequences for mother and child.

These considerations are in line with the Court ' s case-law. Private life includes a person ' s physical and psychological integrity, and the State is under a positive obligation to secure its citizens their right to effective respect for this integrity ( Tysiąc v. Poland , no. 5410/03, § 107, ECHR 2007–IV). Its positive obligations may involve the adoption of measures designed to ensure respect for private life (see Kroon and Others v. the Netherlands , 27 October 1994, § 31, Series A no. 297-C; and Mikulić v. Croatia , no. 53176/99, § 57, ECHR 2002–I). Such measures include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ' rights and the implementation, where appropriate, of specific measures.

As the judgment underlines, the regulatory protection required in the present case means that the State is to provide adequate legal security which is needed for the exercise of a freedom. This cannot be equated with liberalising home birth as such. The latter decision is obviously a matter of balancing in view of available (currently disputed) medical knowledge, the health of the mother and the child, the structure of health care services, etc. This is a matter where the State has a broad margin of appreciation, where the concerns of paragraph 2 of Article 8 apply, and where the burden on the mother ' s right to choose shall be limited only proportionally.

DISSENTING OPINION OF JUDGE POPOVI Ć

To my greatest regret I could not join the colleagues in this case. It was on account of the following reasons. There has been no exhaustion of domestic remedies in the case (1). Neither could the applicant prove a victim status in terms of Article 34 of the Convention (2). Furthermore, there was no interference with the applicant ' s rights (3) and last, but not least, the applicant ' s claim before our Court was to my mind an actio popularis (4).

(1) The applicant has not submitted any piece of evidence which might prove her attempt to have recourse at the national level. The Government objected that her claim was an actio popularis . I shall return to this particular issue further on, but let me mention at this stage that the Government ' s objection in substance refers to the non-exhaustion of domestic remedies. The reason why the applicant had not exhausted domestic remedies is to be found in the fact that she had no arguable claim at the national level.

The applicant did not have an arguable claim because the national legislation on home birth, as pointed out by the Government, is permissive. Both the Health Care Act of 1997 and the Amendment Act no. CLIV of 2009 provide for home birth.

The applicant in this case complained of the lack of secondary legislation on home birth. In this respect, I maintain my position expressed in the dissenting opinion in the case of L. v. Lithuania : a lack of secondary legislation does not impede the realisation of a right provided for by the primary legislation, as long as the latter remains permissive (see L. v. Lithuania , no. 27527/03, ECHR 2007 ‑ X ).

It is to be underlined that the applicant ' s task consisted of proposing a new piece of legislation to be adopted in her country. Such a task is undoubtedly noble, but at the same time overwhelmingly political.

(2) To be able to consider the applicant ' s victim status in terms of Article 34 of the Convention one should take the applicant ' s claim before our Court as a starting point. That claim is in form, as well as in substance, identical to the applicant ' s task mentioned above. The applicant claimed before the Court the adoption of a piece of secondary legislation at the national level.

Let me assume for a second that the applicant had a certain right at the domestic level (which evidently was not the case in reality) to file such a claim. The question of momentum would inevitably arise at that stage. When was the applicant entitled to such a claim, which might enable her to attain victim status?

The piece of legislation which the applicant would like to be completed by secondary legislation, namely the Amendment Act no. CLIV, was adopted on 14 December 2009. The applicant filed her application with this Court on 15 December 2009, claiming an interference with her rights and demanding adoption of secondary legislation. It is therefore clear, especially in the light of the substance of the applicant ' s claim, that the respondent State could not legislate overnight, which makes me conclude that the applicant did not have victim status at the moment of filing her application with the Court.

Has the applicant attained victim status after filing the application? The answer to this question is in my opinion also to be given in the negative. Bearing in mind that the applicant ' s claim was the adoption of a piece of legislation in the respondent State, the question of a possible attaining of victim status must be reformulated. The real issue is whether the lapse of time can transform someone who is not a victim into a victim, in the light of his/her claim? Or, in other words, can the lapse of time by itself alone bring the victim status to the applicant? There has not been a single change of circumstances of the case between the moment of filing the application with the Court and the moment of giving judgment on the case. That is why I fail to understand how the lapse of time alone, without provoking any change of material circumstances, could have altered the applicant ' s situation under Article 34 of the Convention. The lapse of time could by no means serve the purpose of bringing victim status to the applicant.

To substantiate victim status according to the Court ' s case-law an applicant is under an obligation to prove “reasonable likelihood” of interference with his/her rights. If proven, “the reasonable likelihood” of interference leads to achieving a status of a victim of a human rights violation (see Halford v. the United Kingdom , 25 June 1997, §§ 59-60, Reports of Judgments and Decisions 1997-III). The applicant in this case has failed to comply with the rule developed in the Court ' s case-law, which I have just mentioned.

(3) In the present case there was no interference with the applicant ' s rights, as protected by the Convention. In the light of the rule in Halford quoted above, the non-existence of secondary legislation can by no means be considered susceptible of constituting the “reasonable likelihood” of interference with the applicant ' s rights. The reason for this is to be found in the permissive character of primary legislation, existing in the respondent State, which I have invoked.

At this point I would like to underline the need for a clear distinguishing of the present case from the one of Klass and Others v. Germany (6 September 1978, Series A no. 28). The Court held in Klass and Others that there had been interference on the grounds that the legislation in itself had constituted it, because of its character (see Klass and Others , cited above, §§ 34-26). In the case at stake the character of primary legislation is permissive, which represents the ground for distinguishing the present case from the situation in Klass and Others . The legislation contested in Klass and Others was substantially restrictive and potentially harmful to the enjoyment of human rights. The Hungarian health legislation could not be considered to be such, even assuming the existence of a necessity of completing it by secondary legislation.

(4) The applicant could not prove to have had an arguable claim at the domestic level. She also could not be considered a victim of a violation of human rights in the respondent State, either at the moment of filing the application or at any other until the date of adopting the judgment in her case. This is what makes me finally conclude that the applicant was not substantially acting on her own behalf and in her own interest. Therefore, I find the rule in Očić v. Croatia ( (dec.), no. 46306/99 , ECHR 1999 ‑ VIII) , applicable to the present case. It says that “Article 34 [of the Convention] may not be used to found an action in the nature of actio popularis , nor may it form the basis of a claim made in abstracto that a law contravenes the Convention”.

I do not deny the existence of problems in the organisation of health service and care in Hungary . I also welcome the applicant ' s wish to enhance public debate and suggest amendment of the national legislation in her country. It is, however, in terms of Article 35 of the Convention that I hold the application filed with this Court to be inadmissible.

[1] See in particular De Jonge A, van der Goes BY, Ravelli AC, Amelink-Verburg MP, Mol BW, Nijhuis JG, et al. : Perinatal mortality and morbidity in a nationwide cohort of 529 , 688 low-risk planned home and hospital births. BJOG An International Journal of Obstetrics and Gynaecology 2009;116:1177-84.