PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

1 . I respectfully disagree with the view of my colleagues that the instant application is admissible.

2 . The present case reveals once again the weakness of the Court ’ s approach towards Article 8 rights. In this case the first question to be examined is whether the applicant can claim to be a victim of an interference with her rights, i.e., whether her rights were affected by the acts or omissions of the authorities. The question whether in a specific case there is an interference at all with Article 8 rights cannot be answered without previously defining with sufficient precision the content of the rights enshrined therein. For as long as the Court does not give a more precise definition of this content, it is impossible to establish whether Article 8 is “applicable” in a specific case or – to put it more precisely – whether the specific actions or omissions of the authorities pointed to by an applicant constitute an interference with the right protected by Article 8.

3 . While considering the applicability of Article 8, the majority expressed the following point of view in paragraph 44:

“[The Court] found that issues related to giving birth, including the choice of the place of birth, were fundamentally linked to a woman ’ s private life and fell within the scope of that concept for the purposes of Article 8 of the Convention (see Dubská and Krejzová , cited above, § 163).”

I note in this respect that the use of the phrase issues related to giving birth does not give a clear indication as to the exact content of the right protected. More precise is the formula the choice of the place of birth . It can be inferred from the above-quoted passage that under Article 8 every woman has the right to respect for her freedom to choose the place of birth of her child. It suggests that every woman is free in particular to choose to give birth at home and that Article 8 protects this choice against an excessive interference. This conclusion is, however, difficult to reconcile with the view of the majority that Article 8 could not be interpreted as conferring a right to give birth at home as such (paragraph 44), which suggests that the choice of giving birth at home remains out of the scope of protection of Article 8.

4 . In the same part of the reasoning, focusing on the applicability of Article 8 (paragraph 44), the majority further state:

“The Court further notes that in the above-cited case of Dubská and Krejzová the Grand Chamber assessed a situation under Article 8 of the Convention where domestic legislation did not in practice allow for medical assistance during home births. The Court sees no reason to depart from that view in the present case.”

This part of the reasoning prompts serious objections. Firstly, what is “that view” referred to here? The previous sentence speaks only about the fact that an assessment was made by the Court. Secondly, the majority refer here to a situation where domestic legislation did not in practice allow for medical assistance during home births. Moreover, in the case of Dubská and Krejzová , domestic legislation provided for sanctions against midwives assisting during home births. Such a situation is different from the facts of the instant case, which show that the domestic legislation permitted medical assistance during home births and at same time did not in practice prevent it.

5 . Examining the applicant ’ s victim status the majority stated (in paragraph 44):

“The Court held in a recent Grand Chamber case that although Article 8 could not be interpreted as conferring a right to give birth at home as such, the fact that it was impossible in practice for women to be assisted when giving birth in their private home came within the scope of their right to respect for their private life and accordingly of Article 8.”

I note in this context that the applicant did exercise her freedom to choose the place of birth of her child. She decided to give girth at home and chose a foreign midwife to assist her. As she had decided, she gave birth assisted by a midwife. It was therefore possible in practice for the applicant to be assisted when giving birth in her private home.

The majority only explain what they see as an “ interference” in paragraph 79, while dealing with the proportionality of the interference in the following terms:

“[The applicant] was required either to give birth in a hospital, or, if she wished to give birth at home, to do so without the assistance of a midwife and, therefore, with the attendant risks that posed to herself and her baby.”

This statement does not reflect the facts of this specific case. The applicant, a mother who had wished to give birth at home, was not required, legally speaking, to do so without the assistance of a midwife. More generally, as established by the Court, Croatian legislation did not prevent mothers from giving birth at home with the assistance of midwives.

It is true that the Croatian legislation makes it somewhat more difficult to find a midwife for a home birth in comparison with the hypothetical situation in which legislation might explicitly regulate private midwife practice and explicitly provide for the assistance of midwives at home births. However, the Court ’ s case-law has not established that the State has a “positive” obligation to provide midwifery assistance at home. If – as the majority allege – Article 8 could not be interpreted as conferring a right to give birth at home as such, then it is difficult to understand why the fact that it was impossible in practice for women to be assisted when giving birth in their private home can still come within the scope of their right to respect for their private life and accordingly of Article 8. Moreover, as explained in a more detailed manner in several separate opinions (see the concurring opinion of Judges De Gaetano, Pinto de Albuquerque, Wojtyczek and Dedov , paragraph 5, attached to the judgment in the case of Paradiso and Campanelli v. Italy [GC], no 25358/12, 24 January 2017; and the dissenting opinion of Judges Wojtyczek and Pejchal , paragraph 8, attached to the judgment in the case of Orlandi and Others v. Italy , nos. 26431/12, 26742/12, 44057/12 and 60088/12, 14 December 2017), the expression falling within the scope of a right is a source of confusion. The relevant question is not whether some facts fall or come within the scope or ambit of a Convention provision but whether the acts or omissions of the State, invoked by the applicant, can contradict an (at least prima facie ) obligation established in the Convention.

6 . The Court explained as follows in two judgments; firstly in Mansur Yalcin v. Turkey (nos. 26431/12, 26742/12, 44057/12 and 60088/12, § 40, 14 December 2017):

“ ... l ’ article 34 vise non seulement la ou les victimes directes de la violation alléguée, mais encore toute victime indirecte à qui cette violation causerait un préjudice ou qui aurait un intérêt personnel valable à obtenir qu ’ il y soit mis fin (voir, mutatis mutandis , Tourkiki Enosi Xanthis et autres c. Grèce , no 26698/05, § 38, 27 mars 2008 ; voir aussi Defalque c. Belgique , no 37330/02, § 46, 20 avril 2006). En tout état de cause, que la victime soit directe, indirecte ou potentielle, il doit exister un lien entre le requérant et le préjudice qu ’ il estime avoir subi du fait de la violation alléguée. En effet, la Convention n ’ envisage pas la possibilité d ’ engager une actio popularis aux fins de l ’ interprétation des droits qui y sont reconnus ; elle n ’ autorise pas non plus des particuliers à se plaindre d ’ une disposition de droit interne simplement parce qu ’ il leur semble, sans qu ’ ils en aient directement subi les effets, qu ’ elle enfreint la Convention ( Sejdić et Finci c. Bosnie-Herzégovine [GC], nos 27996/06 et 34836/06, § 28, 22 décembre 2009 ). ”

and secondly in SAS v. France ([GC], no 43835/11, § 57, 1 July 2014):

“An individual may nevertheless argue that a law breaches his or her rights in the absence of a specific instance of enforcement, and thus claim to be a ‘ victim ’ , within the meaning of Article 34, if he or she is required either to modify his or her conduct or risk being prosecuted, or if he or she is a member of a category of persons who risk being directly affected by the legislation (see, in particular, Marckx v. Belgium , 13 June 1979, § 27, Series A no. 31; Johnston and Others v. Ireland , 18 December 1986, § 42, Series A no. 112; Norris , cited above, § 31; Burden v. the United Kingdom [GC], no. 13378/05, § 34, ECHR 2008; and Michaud v. France , no. 12323/11, §§ 51 ‑ 52, ECHR 2012) . ”

This is not the case for the present applicant.

For all those reasons. I conclude that the applicant cannot claim to be a victim of a violation of her Convention rights. In any event, it is difficult to see any tangible prejudice, let alone any significant disadvantage, suffered by the applicant.

7 . Concerning the substance of the case, I would like to highlight the following inconsistency in the reasoning. On the one hand, the majority state the following:

“The Court notes firstly that giving birth at home is not, as such, prohibited by the Croatian legal system” (paragraph 66).

“The corresponding plan and programme included the professional assistance of a doctor and a midwife in a home birth as one of the healthcare measures involved (see paragraph 31 above). Such a regulation tended to support the conclusion that professionally assisted home births were permitted” (paragraph 68).

“ ... in reality, no Croatian health professionals, including midwives, officially assisted with home births” (paragraph 69).

On the other, they express the following opinion:

“72. ... in the present case, it is of the view that the applicant was clearly made aware, through the letters from the Croatian Chamber of Midwives and the Ministry of Health which she received while she was still pregnant with her fourth child, that the relevant domestic law did not allow health professionals, including midwives, to assist with planned home births.

73. The Court therefore holds that the impugned interference was foreseeable for the applicant and in accordance with the law.”

I note that the information received from the Croatian Chamber of Midwives and the Ministry of Health (in brief, to the effect that assistance is prohibited) does not reflect the content of the Croatian law established earlier (in brief, that assistance is permitted but not officially provided due to a lacuna in the law). In other words, the information provided to the applicant was not accurate. This inaccurate information about the law, as provided to the applicant, prompts the majority to conclude that the interference based upon it was foreseeable. Such an approach is highly problematic. In my opinion, the legal situation was sufficiently clear, not because of but in spite of the information provided in the above-mentioned documents.

8 . The approach adopted by the majority in the present case leads to an in abstracto examination of the Croatian legislation.