CONCURRING OPINION OF JUDGE WILDHABER

Paragraph 38 of the Court ’ s judgment in the instant case reiterates an established but still somewhat incoherent jurisprudence. On a number of occasions the Court has stated that the "essential object" of Article 8 (art. 8) is "to protect the individual against arbitrary interferenc e by the public authorities" [1] . It has reserved the term "interference" for facts capable of infringing the State ’ s negative obligations. Whenever it has found that an interference in this sense existed, the Court has examined whether the interference could be justified under paragraph 2 of Article 8 (art. 8-2). In addition, the Court has acknowledged that there could be positive obligations inherent in an effective respect for private and family life. The existence of such positive obligations must be evaluated having regard to "the fair balance that has to be struck between the general interest of the community and the interests of the individual" [2] . To this it has added rather vaguely that in the sphere of positive obligations "the aims mentioned in the second paragraph of Article 8 (art. 8-2) ma y be of a certain relevance" [3] . But the Court has in effect applied only the first paragraph (art. 8-1) in such instances. Moreover, it has stressed that Contracting States enjoy a wide margin of appreciation in the implementation of their positive obligations.

However, the dividing line between negative and positive obligations is not so clear-cut. In the Gaskin case, the refusal by the British authorities to grant a former child in care unrestricted access to child-care records could be considered as a negative interference, whereas a duty on the State to provide such access could arguably be viewed as a positive obligation. In the Cossey case the claim of the applicant, an operated transsexual, was that she should be issued with a fresh birth certificate showing her present sex rather than her sex at the date of birth. The refusal of the United Kingdom to carry out a modification of its system for recording civil status could be analysed either as a negative interference with the applicant ’ s rights or as a violation of the State ’ s positive obligation to adapt its legislation so as to take account of the applicant ’ s situation. The Keegan case against Ireland concerned the placement of a child for adoption without the natural father ’ s knowledge or consent, a measure permitted under Irish law. This state of affairs could be taken as a negative interference with the father ’ s right to respect for his family life or as a failure by Ireland to fulfil a positive obligation to confer a right of guardianship on natural fathers. Again, in the instant case of Stjerna , the refusal by the Finnish authorities to allow the applicant freely to acquire the surname of his ancestors may be perceived as either a negative or a positive interference.

In my view, it would therefore be preferable to construe the notion of "interference" so as to cover facts capable of breaching an obligation incumbent on the State under Article 8 para . 1 (art. 8-1), whether negative or positive. Whenever a so-called positive obligation arises the Court should examine, as in the event of a so-called negative obligation, whether there has been an interference with the right to respect for private and family life under paragraph 1 of Article 8 (art. 8-1), and whether such interference was "in accordance with the law", pursued legitimate aims and was "necessary in a democratic society" within the meaning of paragraph 2 (art. 8-2).

To be sure, this approach would not lead to a different result in the instant case, nor in all likelihood in the vast majority of cases of this kind. It does, however, have the advantage of making it clear that in substance there is no negative/positive dichotomy as regards the State ’ s obligations to ensure respect for applicable private and family life, but rather a striking similarity betwe en the applicable principles [4] .

[*]  The case is numbered 38/1993/433/512.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 299-B of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] Belgian Linguistic judgment of 23 July 1968, Series A no. 6, p. 33, para . 7; Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para . 31; Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 7, para . 32; X and Y v. the Netherlands judgment of 26 March 1985, Series A no 91, p. 11, para . 23; Abdulaziz , Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, pp. 33-34, para . 67; Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, p. 14, para . 35; Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, para . 55 (c); Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 23, para . 51; W., B. and R. v. the United Kingdom judgments of 8 July 1987, Series A no. 121, respectively p. 27, para . 60, p. 72, para . 61, p. 117, para . 65; Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 15, para . 38; Niemitz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 34, para . 31; Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, para . 49; Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, para . 55.

[2] Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, p. 15, para . 37; Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 17, para . 42; Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, para . 37; and similarly Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 18, para . 41; B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 47, 53-54, paras . 44 and 63; Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, para . 55.

[3] Rees judgment, p. 15, para . 37; Gaskin judgment, p. 17, para . 42; Powell and Rayner judgment, p. 18, para . 41; note 2 above.

[4] As stated in the Keegan v. Ireland judgment, p. 19, para . 49; and the Hokkanen v. Finland judgment, p. 20, para . 55; note 2, previous page.