JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, BINDSCHEDLER-ROBERT, GÖLCÜKLÜ, MATSCHER, PINHEIRO FARINHA, WALSH , DE MEYER AND VALTICOS

(Translation)

In our opinion, the facts of the case disclose no violation of the applicant ’ s fundamental rights.

The circumstances in which, after two previous divorces, the third marriage of the person concerned was dissolved were such that the Lausanne Civil Court was entitled to impose on him, when it granted the third divorce, the waiting period of three years provided for in Article 150 of the Swiss Civil Code.

The restriction thus placed on the exercise by the applicant of his right to marry and found a family did not affect the substance of that right. It was merely temporary. It was neither arbitrary nor unreasonable. It was based on legitimate reasons and could be considered to be commensurate with their gravity. It did not go beyond the powers of the competent national authorities.

Those authorities - both the judiciary and the legislature - were entitled to consider, in the exercise of their discretion in the matter, that the restriction in question was justified in order to protect not only the institution of marriage but also the future spouses of a person who, as the Swiss courts had established, had grossly violated fundamental conjugal rights.

With regard to marriage, the State has more extensive powers than in some other fields. This is particularly apparent when one compares the very brief and non-exhaustive reference to "national laws" in Article 12 (art. 12) of the Convention with the more circumscribed and restrictive wording of the second paragraph of each of Articles 8, 9, 10 and 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2).

In this context, such doubts as may be felt as to whether a certain legal rule is appropriate or opportune or should be applied in a given case do not suffice to found a breach of the right secured by Article 12 (art. 12) of the Convention. In order for it to be concluded that there has been a breach of this right, it must be shown that the State has impaired the essence of the right or that it has restricted the exercise thereof in an arbitrary or unreasonable manner. That has not been shown in this case.

[*]  Note by the Registrar.  The case is numbered 21/1986/119/168.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.