DISSENTING OPINION OF MR G. RESS

JOINED BY MM. J.-C. SOYER AND R. NICOLINI

According to the majority there was neither a violation of Article 8 nor of Article 6 in this case.  I cannot share this view.

On the contrary there was a violation of Article 8 in relation to the procedural requirements implicit in this article and no separate issue in relation to Article 6 para. 1.  The procedural requirements implicit in Article 8, in my view, are intrinsically related to the situation of every member of the family and demand that their views on their personal situation and on the interests of all involved can be duly expressed in all decisive court procedures, in particular in an oral hearing when new factual information is put before the judges. These procedural requirements of Article 8 in relation to the decision in family matters may even go beyond the requirements of Article 6 para. 1.  In my view, the lack of an oral hearing before the appeal courts in both proceedings did not correspond to the respect the respondent State is obliged to offer for family life.  Article 8 has to be regarded for such constellation as lex specialis in relation to Article 6 para. 1 .

It is true that to a large extent the applicant, assisted by counsel, was involved in the decision-making process. In particular in the proceedings at first instance he had the possibility to present his arguments, both in writing and at oral hearings.

As regards both sets of appeal proceedings before the Düsseldorf Court of Appeal, it has to be noted that, contrary to the wishes expressed by the applicant, no oral hearings were held. However, contrary to the Government's contention, the Court of Appeal did not limit its examination to a legal review but considered, inter alia on the basis of a further report of 19 January 1995 prepared by the Diaconate Institution, recent factual developments with a view to amending the first instance court decision. These recent developments concerned the very core of the problem before the Court of Appeal, namely the strained relations between the parents and the consequences for the child's well-being. In this situation, it was not sufficient to have the parties' comments in a written procedure. Rather, the Court of Appeal should have held an oral hearing, thus also having the opportunity of a personal impression of the parties and of an oral comment on the recent factual developments.

In these circumstances, the decision-making process determining the custody and access arrangements in regard to Svenja did not afford the requisite protection of the applicant's interests as safeguarded by Article 8 para. 1 (cf., mutatis mutandis , McMichael v. United Kingdom judgment, op. cit. , para. 92). Consequently, the lack of respect which the Court of Appeal showed for the applicant’s right under Article  8 para. 1 of the Convention cannot be justified under paragraph 2 of that Article.

[1] The term “former” refers to the text of the Convention  before the entry into force of Protocol No. 11 on 1 November 1998.