PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE GERSING

In my view, the length of the wardship proceedings falls to be considered only under Article 6 § 1 (art. 6-1), which in this respect is the lex specialis . I cannot accept the extensive interpretation of Article 8 (art. 8) which the majority of the Court has applied as regards those proceedings in paragraphs 65 and 69 of the judgment.

The wardship proceedings were instituted on 16 January 1981 and judgment was given at first instance on 22 June 1981 . The High Court judge found it "extremely unfortunate" that the proceedings were not heard within a very short period. Taking into account the serious consequences which a delay of five months at this stage might - and in fact did - have for the applicant, I find that in these special circumstances, of which the court was aware, the duration of the first-instance proceedings entailed a violation of Article 6 § 1 (art. 6-1). The appeal was dismissed on 6 October 1981 and that lapse of time cannot in itself give rise to criticism.

INDIVIDUAL SEPARATE OPINION OF JUDGE DE MEYER

At paragraph 57 of the judgment it is stated that "Since the Commission ’ s admissibility decision delimits the compass of the case brought before the Court ..., the latter is not in the circumstances competent to examine or comment on the justification for such matters as the taking into public care or the adoption of the child or the restriction or termination of the applicant ’ s access to him".

I have very serious doubts as to that statement.

I feel rather that once a "case" is referred to the Court in accordance with Articles 44, 45, 47 and 48 (art. 44, art. 45, art. 47, art. 48) of the Convention, the Court ’ s jurisdiction extends to all questions of fact and of law arising in the case concerned. This appears already to have been recognised in the judgment in the De Wilde, Ooms and Versyp cases [12] .

Moreover, since within the Council of Europe the protection of human rights and fundamental freedoms concerns ordre public, I believe that, as the Court decided in the same judgment, "a scrupulous supervision by the organs of the Convention of all measures capable of violating the rights and freedoms which it guarantees is necessary in every case" [13] .

I regret that the Court appears to deviate from this course.

[*]  Note by the Registrar: The case is numbered 4/1986/102/150.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] § 73 of the judgment.

[2] See the concurring opinion of Judge Lagergren annexed to the Ashingdane judgment of 28 May 1985 , Series A no. 93, p. 27, and his separate opinion, joined by Judge Macdonald, annexed to the Lithgow and Others judgment of 8 July 1986 , Series A no. 102, p. 80.  See      also, mutatis mutandis, the Golder judgment of 21 February 1975 , Series A no. 18, pp. 16-18, §§ 34-36, and the Öztürk judgment of 21 February 1984 , Series A no. 73, pp. 17-18, § 49.

[3] §§ 66-68 of the judgment.

[4] § 69 of the judgment.

[5] § 70 of the judgment.

[6] §§ 80-83 of the judgment.

[7] § 84 of the judgment and point 4 of the operative provisions.

[8] § 86 of the judgment and point 5 of the operative provisions.

[9] §§ 80-83 of the judgment and point 3 of the operative provisions.

[10] § 86 of the judgment.

[11] Airey judgment of 9 October 1979 , Series A no. 32, p. 18, § 35.

[12] Judgment of 18 June 1971 , Series A no. 12, pp. 29-30, §§ 47-52: see especially § 49.

[13] Ibid., p. 36, § 65.