DISSENTING OPINION OF JUDGE ZUPANČIČ

The issue is in some respects disguised, but the crucial question in this case is discrimination – on the basis of the applicant ' s sexual orientation – concerning the privilege of adopting a child. That this is a privilege is decisive for the examination of the case; it implies – and the majority recognises this – that we are not dealing with the applicant ' s right in terms of Article 8.

The difference between a privilege and a right is decisive. Discrimination in terms of unequal treatment is applicable to situations that involve rights; it is not applicable to situations that essentially concern privileges. These are situations in which the granting vel non of the privilege make it legitimate for the decision-making body, in this case an administrative body, to exercise discretion without fear that the right of the aggrieved person will be violated.

Put in the simplest terms, the theoretical principle according to which a right is subject to litigation and according to which a violation of that right requires a remedy does not apply to situations in which a privilege is being granted. An exaggerated example of such a situation would be the privilege of being granted a decoration or a prize, or other situations of special treatment reserved for those who are exceptionally deserving.

In other words, it would be “bizarre” for anybody to claim that he ought to have received a particular award, a particular decoration or a particular privilege.

There are, of course, middle-ground situations such as applications for a particular post for which the aggrieved person is a candidate. One may for example conceive of a situation in which an applicant wished to become a judge or a notary public or was a candidate for a similar position but, for whatever reason, was denied that position. Even in that case it would be unusual for the Court to entertain a refusal to grant a privilege as something that is subject to the discrimination criteria.

In this particular case, the preliminary question of essential importance is to determine whether the privilege of adopting a child is subject to the discrimination criteria under Article 14. As pointed out above, the majority is not inclined to consider the privilege of adopting a child as a right.

It is therefore inconsistent to consider that there has been any kind of violation as long as the Court persists in its (justifiable!) position according to which the possibility of adopting a child is clearly not a right and is in any event at best a privilege. The question is then what kind of discretion the administrative body is entitled to exercise when making a decision concerning the privilege of adopting a child.

On the other hand, is it possible to imagine the Nobel Prize Committee being accused of discrimination because it never awards any Nobel Prizes to scientists of a particular race or nationality? Such an assertion would, of

course, require statistical proof. Statistical evidence is, indeed, very prevalent in employment discrimination and similar cases. In other words, if in this particular situation the European Court of Human Rights were to establish that the French administrative authorities systematically discriminate against lesbian women wishing to adopt a child, the issue would be much clearer.

But we are dealing here with an individual case in which discrimination is alleged purely on the basis of a single occurrence. This, as I have pointed out, does not permit the Court to reach the conclusion that there is in France a general discriminatory attitude against homosexuals wishing to adopt a child. The issue of system at ic discrimination has not been explored in this specific case and it would probably not be possible to even admit such statistical proof in support of the allegation. If it were possible, however, the treatment of the case would be completely different from what we now face.

It is therefore incumbent on the Court to extrapolate a consistent line of reasoning from its preliminary position, according to which the privilege of adopting a child is in any event not a right.

A separate issue under the same head is whether the procedures leading to the negative answer to the lesbian woman were such as to evince discrimination. This question seems to be the distinction upon which the majority ' s reasoning is based.

The question distilled from this kind of reasoning is whether the procedures – even when granting, not a right, but a privilege – ought to be free of discrimination. In terms of administrative law, perhaps, the distinction is between a decision which lies legitimately within the competence of the administrative bodies and their legitimate discretion on the one hand and one which moves into the field of arbitrary decision.

A decision is arbitrary when it is not based on reasonable grounds (substantive aspect) and reasonable decision-making (procedural aspect) but rather derives from prejudice, in this case prejudice against homosexuals. It is well established in the legal theory that the discrimination logic does not apply to privileges, but it may well apply to the procedures in which the granting or not of the privilege is the issue.

It is alleged that the procedures in French administrative law were discriminatory against this particular female homosexual , but the question then arises as to whether this kind of discriminatory procedure is nevertheless compatible with the legitimate discretion exercised by the administrative body .

I am afraid that in most cases precisely this kind of “contamination” of substance by procedure is at the centre of the controversy. I cannot dwell on it here [1] but the question could be posed as follows. If the granting of privileges is not a matter of right s , is it not then true that the bestower of privilege is entitled – argumento a majori ad minus – not only to discretion but also to discrimination in terms of substance as well as in terms of procedure? The short answer to this is that in the public sphere – as opposed to the purely private sphere of awards, prizes and so forth – there are some privileges which are apt to become rights, such as adopt ing a child, be ing considered for a public function , and so on . Decidedly, in so far as this process of the privilege potentially “becoming a right” is affected by arbitrariness, prejudice and frivolity the discrimination logic should apply.

The rest is a question of fact . Like Judge Loucaides, I do not subscribe to the osmotic contamination theory advanced by the majority.

There is one final consideration. The non-represented party , whose interest should prevail absolutely in such litigation , is the child whose future best interest s are to be protected. When set against the absolute right of this child , all other rights and privileges pale. If in custody matters we maintain that it is the best interest s of the child that should be paramount – rather than the rights of the biological parents – how much more force will that assertion carry in cases such as this one where the privileges of a potential adoptive parent are at issue?