PARTIALLY DISSENTING OPINION OF JUDGE BERRO-LEFEVRE

(Translation)

My disagreement with the majority is limited to point 3 of the operative provisions, to the extent that, for the first time and contrary to the Court’s previous case-law on this question, the Chamber has found a violation of the right to marry as protected by Article 12 on account of the length of the divorce proceedings.

For my part, I consider that, in the light of our case-law as applied to the instant case, there could not have been a breach of the applicant’s right to marry.

In finding a violation, the majority has based its decision on the behaviour of the domestic authorities, who failed to conduct the divorce proceedings efficiently and to take into consideration the specific circumstances of the case. In the opinion of my colleagues, this situation left the applicant in a state of prolonged uncertainty which amounted to an unreasonable restriction of his right to marry (see paragraph 106 of the judgment).

I would make the following observations - firstly factual and subsequently legal - with regard to this conclusion:

1. Although the spouses accepted the principle of divorce fairly quickly after the divorce proceedings were initiated (in April 2004), it remains the case that the issues of contact and child maintenance continued to be matters of contention.

More than a year after filing the petition for divorce, the applicant, on his own initiative, brought a separate action in the same court contesting his paternity of the child (see paragraph 10).

2. I note that, having initially asked the court to issue a partial decision on the dissolution of the marriage, in July 2006 the applicant requested that the two sets of proceedings be joined, a request which was granted. Thus, he himself was responsible for the situation of which he subsequently complained; this indicates that, in his opinion, and as the domestic court also held, there was indeed a link between the two cases (to the extent that both concerned the child). It cannot therefore be argued that the court should immediately have granted a divorce as soon as the parties had agreed to dissolve their marriage.

3. The divorce was pronounced in January 2010, that is, 5 years and 8 months after the initial petition was filed. Such a length of proceedings is clearly unacceptable, particularly in the light of the subject-matter, which, as the Court has frequently reiterated, requires the authorities to act with particular diligence. This situation, however, has been addressed through the finding of a violation of Article 6 of the Convention (see paragraph 85).

Did this length of proceedings, admittedly unreasonable, also entail a violation of Article 12? I do not believe so, and am all the more convinced of this in the light of our case-law.

The Court has held as follows on the interpretation of the right safeguarded by Article 12 of the Convention:

“Article 12 secures the fundamental right of a man and a woman to marry and to found a family. The exercise of this right gives rise to personal, social and legal consequences. It is ‘subject to the national laws of the Contracting States’, but ‘the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired’ (see the Rees judgment of 17 October 1986, Series A no. 106, § 50)” ( F. v. Switzerland , no. 11329/85, 18 December 1987, § 32).

Accordingly, while the right to marry is not subject to specific limitations, it is nonetheless integrated into national legislation: its exercise may be limited, subject to the condition that its very essence is not impaired.

4. In the case of Aresti Charalambous v. Cyprus (no. 43151/04, 19 July 2007), the applicant also complained about the length of divorce proceedings (5 years, 7 months and 21 days for two levels of jurisdiction) and the fact that this meant he had been unable to remarry. The Court, while acknowledging that there had been a violation of Article 6 of the Convention in terms of the excessive length of proceedings, indicated that “the Court would not exclude that a failure to conduct divorce proceedings within a reasonable time could in certain circumstances raise an issue under Article 12 of the Convention. However, in the present case, bearing in mind all the circumstances and the overall length of the proceedings, the Court finds that the applicant’s situation was not such that the very essence of that right was impaired” (§ 56).

5. Equally, in the decision Wildgruber v. Germany (nos. 42402/05 and 42423/05, 7 November 2005), the applicant also complained about the consequences for his right to marry of the district court’s interim decision not to sever the divorce proceedings from the ancillary proceedings (particularly with regard to custody of children). After noting that a divorce had been pronounced 3 years and 9 months after the petition had been filed, the Court concluded: “despite his age (66 years) and the fact that he had had a daughter with the woman he wished to marry, the applicant’s situation was not such that the very essence of his right to marry was impaired”.

6. It is not therefore the length of proceedings as such and of itself that is likely to raise an issue under Article 12, but the existence, in this context, of circumstances so specific that they amount to interference or an impairment of the very essence of the person’s right to marry. Thus, circumstances that I would describe as essential must be demonstrated in order for there to have been interference with the very essence of the right asserted.

Without a definition of such circumstances, one might ask where the Court will place the “cursor” establishing the waiting period to be considered reasonable in envisaging a new marriage. Will all violations of Article 6 for unreasonable length of proceedings entail, ipso facto , a violation of Article 12 if the applicant can demonstrate that he or she has found another soul mate and is contemplating a fresh attempt at matrimony?

Are we to consider that future spouses who are unable to extricate themselves from previous marital bonds have had the very essence of their right to marriage impaired?

7. What are the circumstances of this Croatian case that would distinguish it from the above-cited examples from the case-law?

The judgment sets them out: the parties’ agreement to divorce, a possibility of rendering a partial decision and the urgent nature of the proceedings under domestic law (paragraph 106).

Yet these are merely elements which are clearly to be taken into account in assessing the length of proceedings, but which cannot be considered, in and of themselves, as restricting or reducing the right in question in such a way or to such an extent that the essence of the right is impaired.

Further, the judgment does not even set out to demonstrate any such impairment, since it simply refers to a restriction of the applicant’s right resulting from the state of prolonged uncertainty in which he was left. In my opinion, a step has been omitted in concluding that there has been a violation: in what way did this restriction attain the level of intensity required for the very essence of the right to be impaired? The grounds relied on by the majority in § 106 (agreement of the parties, lack of partial decision, urgent procedure) are certainly not sufficient to amount to an impairment of the every essence of the right to marriage as alleged by the applicant.

The applicant has been able to marry, admittedly at a later date than he would have wished, and his religious convictions have thus been respected. Accordingly, I consider that there has been no violation of Article 12 of the Convention.