CONCURRING OPINION OF JUDGE LORENZEN, JOINED BY JUDGE STEINER

We have voted with the majority in finding violations of Articles 6 and 8 of the Convention in the present case. However, we are unable to agree with the reasons which have been given for finding a violation of Article 8 in respect of the proceedings instituted with a view to divesting the second applicant of her legal capacity. Our reasons are the following:

It is obvious that divesting someone of his or her legal capacity is a serious interference with that person´s private life and we can also agree that the mere fact of instituting proceedings with that aim, given the consequences, amounts to an interference. Accordingly, the conditions in Article 8 § 2 must be fulfilled.

Contrary to the Court´s normal practice, the majority considers that the issues of the legality of the interference, the legitimate aim pursued and its necessity are closely interconnected and should be examined together (see paragraph 105 of the judgment). In our opinion, this manner of proceeding complicates the analysis of the case and leads the Court to consider questions which it is not necessary to examine.

In the present case the proceedings to divest the second applicant of her legal capacity were instituted on 17 September 2008 and, according to the information available to the Court, they are still pending. Accordingly, no decision whatsoever as to whether the authorities’ claim is well-founded has yet been made by the domestic courts. In the absence of any rulings by the domestic courts, the judgment of the majority takes it upon itself to rule not only on the legality of the proceedings under Croatian law and the legitimate aim behind them, but also on their proportionality. The majority concludes that the proceedings did not comply with the relevant procedure and conditions prescribed by law, did not pursue a legitimate aim and were not necessary in a democratic society.

Apart from the lack of a sufficient basis for the Court to make such an assessment of the factual evidence and the application of national law in this case, it is in our opinion not properly in accordance with the principle of subsidiarity and the requirement of exhaustion of domestic remedies to do so. It interferes with the principle that the national courts have primary responsibility for guaranteeing the rights under the Convention. The reasoning of the majority implies that merely instituting proceedings to divest someone of his or her legal capacity may be found to be a violation of the Convention, without the national courts having had the possibility to redress the interference, unless the latter recognise the violation.

However, in the circumstances of the present case we can agree that there has been a violation of Article 8, but on different grounds.

In our opinion, section 161 taken together with section 159 of the Croatian Family Act provided a sufficient legal basis in national law for the institution of such proceedings and the question whether the conditions for proceeding with the request were fulfilled is primarily for the national courts to decide. We are not able to conclude, however, that national law was in conformity with the requirements of Article 8 § 2 of the Convention. According to the Court´s case-law, the expression “in accordance with the law” within the meaning of Article 8 § 2 requires not only that the interference should have some basis in domestic law; it also refers to the quality of the law in question, requiring it to be accessible and foreseeable to the person concerned as well as compatible with the rule of law (see, mutatis mutandis , Uzun v. Germany, no 3523/05, § 60, 2 September 2010). Depending on the circumstances of the case, the rule of law may require that domestic law provide adequate protection against arbitrary interference with Article 8 rights enabling the Court to be satisfied that there exist effective guarantees against abuse (see Uzun , § 63).

We consider that such requirements should also apply in proceedings instituted with the aim of divesting someone of his or her legal capacity because of the serious consequences that the mere institution of such proceedings may have. In this connection not only are procedural guarantees that the person concerned may adequately take part in the proceedings necessary, but we also consider it indispensable, in order to avoid abuse, for the national law to provide that a court decision be given on the well-foundedness of an application to divest a person’s legal capacity – at least on a provisional basis - within a reasonably short time-limit. The Croatian Family Act contains no guarantees as to the speediness of such proceedings and there is no evidence that the Croatian courts attempted, of their own motion, to expedite proceedings which have now been pending for more than three years. Accordingly, Croatian law did not, in our opinion, comply in the present case with the requirement under Article 8 § 2 that the interference be “in accordance with the law”, and on that ground we can agree that there has been a violation of Article 8 of the Convention in respect of the second applicant as well.