SEPARATE OPINION OF JUDGE NUSSBERGER

A. The central issue of the case

This case raises a “typical” human rights issue. Just how far can the State restrict individuals’ autonomy for the purposes of protecting them against their own will? This is a thorny and important question, especially in the case of a right – such as the right to marry – which is considered as so essential that it is the subject of a separate Convention article. The majority of the Chamber wish such an interference only to be subject to procedural supervision – affording the respondent Government a wide margin of appreciation – whereas in my view what has to be assessed is the proportionality of the restrictive measure.

B. Systemic interpretation of Article 12 in the light of Article 8 of the Convention

It is true that the wording of Article 12 of the Convention (right to marry) is different from that of Article 8 of the Convention (right to respect for private and family life). Article 12 does not define the limits of possible interferences or make them subject to supervision of what is “necessary in a democratic society” to attain the “legitimate aim” pursued; it confines itself to stating that the right must be safeguarded “according to the national laws governing the exercise of this right” (see Jaremowicz v. Poland , no. 24023/03, § 50, 5 January 2010). What conclusion should be drawn from this? Can it be deduced from the literal text of the Convention that the right to marry is less deserving of protection than the right to respect for private and family life? The Commission seemed to gainsay such an approach when it spoke of an “absolute right in the sense that no restrictions similar to those in para. (2) of Art. 8 of the Convention are expressly provided for” (see X v. the United Kingdom (dec.), no. 6564/74, 21 May 1975), whereas the case-law of the Court would seem to suggest that Article 12 provides a lower level of protection than Article 8. Thus the Court verifies whether the limitations introduced by domestic law restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see L. v. the United Kingdom , no. 36536/02 , § 34, 13 September 2005, and F. v. Switzerland , 18 December 1987, § 32, Series A no. 128). Or else, as in Frasik , it determines whether, “regard being had to the State’s margin of appreciation, the impugned interference [is] arbitrary or disproportionate” (see Frasik v. Poland , no. 22933/02, § 90, ECHR 2010), but without venturing to conduct a full review of proportionality. That is also the approach adopted by the majority of the Chamber (see paragraph 57 of the judgment).

Yet should we not go even further and consider the proportionality of restrictions on the right to marry, as we do under Article 8?

That raises a question of interpretative methodology, which is especially important in view of the structural imbalance in the interpretation of these two Convention articles. Whereas in hundreds of judgments the Court has widened the guarantees of Article 8, transforming them into a kind of “umbrella protection”, it has treated the interpretation of Article 12 as a “poor relation”. However, if the right to marry were not governed by a separate provision it could just as easily fall within the ambit of Article 8, as evidenced by the case-law on the rights of same-sex couples. Thus in its Schalk and Kopf judgment the Court interpreted the “to marry” concept set out in Article 12 in its historical context and only applied it to heterosexual marriage (see Schalk and Kopf v. Austria , no. 30141/04, § 55, 24 June 2010), while analysing under Article 8 the authorities’ rejection of a same-sex couple’s application to marry (see Schalk and Kopf , cited above, § 94). Does not such case-law, which applies a different yardstick to same-sex couples and different-sex couples, lead to differing levels of protection? I would take the view that it contradicts the systemic interpretation method under which the Convention “must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions” (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 171, ECHR 2012). Furthermore, such an interpretation is incompatible with the Court’s jurisprudential premise that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship (see Oliari and Others v. Italy , nos. 18766/11 and 36030/11, § 165, 21 July 2015; Schalk and Kopf , cited above, § 99; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, §§ 78 and 81, ECHR 2013).

For all these reasons I consider that, in the sphere of restrictions on the right to marry, we must not confine ourselves to superficially checking whether the interference was arbitrary and leaving the respondent Government a wide margin of appreciation. On the contrary, an analysis is required, as in the case of Article 8, of whether, in the individual case, the prohibition of marriage was “necessary in a democratic society” and met “a pressing social need”.

C. Proportionality of the prohibition of marriage in the present case

In the present case, the starting point for the analysis must be the applicant’s clearly expressed wish to marry a long-standing female friend. At the time he had taken that decision the applicant had known her for fifteen years (see paragraph 10 of the judgment). His attachment to her was undisputed (see paragraph 16 of the judgment). His capacity to consent to marriage was confirmed by the authorities (see paragraph 13 of the judgment). Moreover, the decision was based on religious grounds, family traditions and the wish to have “someone at his side to assist him and to organise his daily life, and so that he would not end his life on his own” (paragraph 15 of the judgment).

Despite all those considerations, the applicant was prohibited from marrying M.S.

It is true, as emphasised by the Government, that it was not a “general ban on marriage” but merely “an obligation to obtain the supervisee’s agreement” (see paragraph 51 of the judgment). However, since the applicant had been denied that agreement, his prohibition of marriage was absolute and final. He contested the prohibition at all the judicial levels up to the Court of Cassation, even putting a priority question as to constitutionality to the Constitutional Council. Having lost his case at the age of seventy-five, he could not reasonably have expected any change in the situation before his death (even though, theoretically, that possibility could not have been ruled out because the enhanced supervision had only been imposed for five years). Indeed, it was an effective legal bar within the meaning of the Court’s case-law (see Jaremowicz , cited above, § 60).

Is such a serious interference with the exercise of one of the most personal rights of an individual compatible with the Convention?

The legitimate aim of such a restriction was obviously to protect the applicant, as a vulnerable person, from actual dangers of which he himself was unaware. The danger here was purely financial, in view of the extent of the applicant’s personal fortune. The authorities based their decision on the fact that the applicant could not have controlled the consequences of his consent to marriage in terms of his property and finances. He was alleged to have considered the management of his real estate as “a hobby” (see paragraph 9 of the judgment), his expenditure on refurbishment work in his apartment was considered unreasonable (see paragraph 17 of the judgment), he had reportedly not stopped drinking (see paragraph 16 of the judgment), but he was allowed to have a bank account and a cash withdrawal card (see paragraph 9 of the judgment). It is clear that if he had been poor no one would have objected to his planned marriage.

Marriage indisputably has not only legal but also social and personal consequences. Nevertheless, the French authorities did not take seriously, and even ridiculed, the arguments put forward by the applicant for wishing to get married. The psychiatrist appointed by the guardianship judge considered the applicant’s wish not to be abandoned as “bordering on the absurd” (see paragraph 13 of the judgment), which approach starkly contrasts with the stance adopted by the Court, which has on many occasions accepted that needs in terms of mutual support and assistance are reasons justifying the right to marry (see Vallianatos , cited above, § 81). Furthermore, the guardianship judge did not pronounce on the religious aspects mentioned by the applicant (see paragraph 16 of the judgment). At the same time, the financial threats from which the applicant allegedly needed protection were not clearly defined. A clear distinction must be drawn between the applicant’s interests and those of his potential heirs. It was not necessarily in the applicant’s interest to preserve his assets for his future heirs, but rather to continue to live until his death without financial worries and in a manner of his own choosing.

In the present case, unlike in many other cases, the Court is not called upon to balance the different rights secured under the Convention. The interests of persons other than the applicant – those of his adopted daughter and those of his future wife, both of whom are potential heirs – do not amount to legitimate expectations liable to be protected under Article 1 of Protocol No. 1.

As regards the danger of exploitation and abuse, it should be remembered that even after the marriage the applicant would have remained under an enhanced supervision order. Consequently, all the major financial transactions such as the drawing up of a will or inter vivos gifts would have continued to be overseen by the supervisor (Article 470 (1) and (2) of the Civil Code). It is true that M.S., as the applicant’s wife, would have had joint control over the spending of his money. There again, however, her access could have been limited by restrictive measures at the financial level (restrictions on credit cards, limits on withdrawals from the applicant’s account, etc.). Moreover, the real estate – apparently accounting for most of his assets – would have remained protected. Further, the expenditure which had been considered “unreasonable” (see paragraph 17 of the judgment) would have been effected whether or not the applicant had been married. Accordingly, it is difficult to see how marriage could have worsened the applicant’s situation vis-à-vis such expenses.

Furthermore, the example of the PACS system shows that there are less radical protective measures which are nonetheless effective, such as assistance (see paragraph 24 of the judgment). I do not agree with the Chamber majority that a single-sex couple cannot be compared with a different-sex couple in this context (see paragraph 65 of the judgment). The financial stakes are the same. And according to the Court’s case-law, the State has a duty to grant to both single-sex and different-sex couples “a specific legal framework providing for the recognition and protection of their ... unions” (see Oliari and Others , cited above, § 185).

It is true that the risk of a person with a “slight cognitive disorder”, “psychological fragilities” and “some degree of vulnerability” (see paragraph 9 of the judgment) being exploited by third persons should not be under-estimated, particularly where such person is a large property holder. However, a restrictive measure adopted against the will of the person concerned should not, in my opinion, go beyond what is strictly necessary. Although the content of Article 460 (1) of the Civil Code is unobjectionable as such, its application in the circumstances of the present case, which resulted in a ban on marriage, is disproportionate. The measure in question is more paternalistic than protective, which is incompatible with Article 12 read in the light of Article 8.

D. Subsidiarity of the Court’s case-law

The subsidiarity principle is essential to the interpretation of the Convention. That is particularly true in cases concerning the right to marry, the field of matrimony being so closely bound up with the cultural and historical traditions of each member country (see F. v. Switzerland , cited above, § 33). There is no reason to criticise the law as such, which was in fact declared compatible with the Constitution by the Constitutional Council (see paragraph 19 of the judgment). Moreover, the Court has always acknowledged – and this takes on particular importance in a case such as the present one – that by reason of their direct and continuous contact with the vital forces of their countries, the domestic authorities are, in principle, in a better position than the international judge to give an opinion on the necessity of a restriction (see, among other authorities, A, B and C v. Ireland [GC], no. 25579/05, § 232, ECHR 2010). The Court must – at all costs – avoid hearing and determining such a case as a fourth instance.

It was because of the principle of subsidiarity that the Chamber majority confined itself to examining the procedural safeguards on the exercise of the right in question. It is true that the applicant’s case was examined at all the French judicial levels (the guardianship judge of the District Court of the 15 th Administrative District of Paris, the Paris Regional Court, the Paris Court of Appeal and the Court of Cassation). It is also true that the courts provided reasons for their decisions, referring to expert reports drawn up by medical specialists (see paragraphs 9 and 13 of the judgment). The applicant, for his part, was able to give his opinion throughout the proceedings, with the assistance of counsel.

However, even if he was heard, he was not listened to. The Court’s task is to provide effective protection for the rights secured under the Convention, including the important right to marry. In my view, the right to marry, in the presented case, was unduly reduced to a purely financial decision and was consequently disproportionately restricted, affecting its very essence. The authorities completely disregarded the social and personal aspects of marriage. The fact is that those aspects were what counted for the applicant.

Without in any way claiming to be in a better position to judge the case, I consider that the French authorities failed convincingly to justify their decision to the effect that the restrictions on the applicant’s right to marry had been necessary in a democratic society and had met a pressing social need.

That was why I voted for a finding of a violation of Article 12 of the Convention.