JOINT DISSENTING OPINION OF JUDGES EVRIGENIS, LIESCH, GÖLCÜKLÜ AND MATSCHER

(Translation)

1. We regret that we are unable to sh are the opinion of the majority of our colleagues that domestic remedies were not exhausted in the instant case.

2. According to the Court ’ s es tablished case-law, the rule of exhaustion is applicable only if domestic remedies relating to the alleged breaches are available and sufficient (see paragraph 27 of the judgment).

It is further settled that the burden of proving the existence of the available and sufficient domestic remedies lies upon the State invoking the rule (see the Deweer judgment of 27 February 1980 , Series A no. 35, p. 15, § 26).

3. It follows that a prelimin ary objection of non-exhaustion can be grounded neither on the theoretical and highly contested existence in positive law of a domestic remedy, nor on the indication of a remedy which does exist but is insufficient to provide redress in the particular case.

4. It is in the light of thes e principles and considerations that it has to be determined whether the two means of redress specified by the Belgian Government and taken into consideration by the Court are relevant under Article 26 (art. 26) and, if so, whether any special circumstances dispensed D. Van Oosterwijck from having recourse to them.

5. The applicant is in particular criticised for not having taken his case to the Court of Cassation in order to have the Brussels Court of Appeal ’ s judgment of 7 May 1974 reversed.

6. On the question of this reme dy, our views differ from those of the majority of the Court.

The petition filed on 18 October 1973 by the applicant with the Brussels Court of First Instance sought in fact the "rectification of a civil status certificate" (see paragraph 12 of the judgment) in pursuance of the relevant provisions in the Judicial Code (see paragraph 17).

The ministère public (Attorney- General ’ s department) submitted that the petition should be dismissed because D. Van Oosterwijck had not established that the initial record of his sex was tainted by error.

The Brussels Court found against the petitioner since he had not demonstrated that the Registrar of Births, Marriages and Deaths had made a mistake when completing the birth certificate; furthermore, the petitioner ’ s submissions showed just the opposite since he did not claim to have been "fundamentally" a man from the outset (see paragraph 12).

7. The Brussels Court of Appeal uphe ld this decision on the grounds that before it could be rectified a civil status certificate had to contain an error committed when it was drawn up and that there was no provision in the laws as they then stood that allowed "account to be taken of artificial changes to an individual ’ s anatomy", such as those in the present case, "even if they correspond[ed] to his deep-seated psychical tendencies". However, "neither the physical examination of the appellant ... nor the proposed scientific evidence as to the biological aetiology of transsexualism " were capable of evidencing the existence, from the very outset, of "physical characteristics of the male sex or even [of] transsexual tendencies" (see paragraph 13).

8. Insofar as any appeal were to take issue with the Court of Appeal ’ s findings of fact, it would be inadmissible since the Court of Cassation reviews only the application of the law.

It would still be inadmissible, a s involving a mixed question of fact and law, to the extent that it challenged the conclusion drawn from the decision on the facts.

Likewise assessment of the weight to be given to a proposed item of evidence falls within the sovereign domain of the judges invested with jurisdiction over the merits and this is not subject to review by the Court of Cassation.

It should further be noted th at even on the supposition of a successful appeal to the Court of Cassation on a point of law, the lower court judge, on having the case referred back, could not, without ruling ultra petita , have converted an action for rectification of the applicant ’ s civil status certificate into an action for modification of his status, for the jurisdiction of the courts hearing the case is circumscribed by the initial object of the action.

Finally, the statement that Bel gian case-law on the matter was uncertain and that the Court of Cassation could have overturned the lower court ’ s decision as being in conflict with the law governing rectification of civil status certificates would appear to be pure legal speculation (see paragraph 32 of the judgment); in point of fact, any such analysis can be regarded as no more than simple assertion in that it is totally unsupported by any legal consideration sufficiently founded in Belgian positive law.

Prior to the Brussels Court of Appeal ’ s judgment of 7 May 1974 there was, so it would seem, only one Belgian decision (delivered by the Ghent Court of First Instance on 20 October 1965) dealing with a comparable case and going the other way, whereas two other judgments which were more recent (Charleroi in 1973 and Malines in 1975) had taken the same view as the Brussels ’ s Court of First Instance and Court of Appeal.

Admittedly, in the meantime atti tudes as to transsexualism and, consequently, the trend in court decisions on the matter in various European countries have evolved. Nonetheless, it was only in 1978 that a judgment by the Ghent Court of First Instance - which moreover has apparently remained an isolated authority - granted a petition for rectification in a case of a claimed sex-change.

It must be inferred from this that at the time when the applicant filed his petition the relevant Belgian case-law, far from being uncertain, argued against proceeding by way of rectification.

In these circumstances, no criticism can be made of the applicant ’ s decision, based on the opinion of his advisers and, not to try his luck before the Court of Cassation.

9. The non-exhaustion of remed ies is also said to result from the fact that neither at first instance nor on appeal did the applicant plead the Convention; even in substance (see paragraphs 30 and 34).

On this point as well, we are bo und to express our disagreement with the Court ’ s conclusion.

10. In the first place, the notice of appeal, dated 14 February 1974, from the order refusing rectification of his birth certificate shows quite clearly that while he did not rely directly on the Convention, the applicant did nevertheless adduce arguments to the same or like effect (see paragraph 34); in particular, the notice stated that "the Court should be guided by equity, humanity and the interests of both society and of the appellant in arriving at its decision; and that it is evident that Van Oosterwijck is a man" (see the Guzzardi judgment, paragraph 72).

11. In the second place, it is rec ognised that Article 8 (art. 8) of the Convention produces direct effects in the domestic legal system in Belgium and that litigants may rely before the Belgian courts on the general right to respect for their private life.

However, having regard both to the abstract terminology of Article 8 (art. 8) and to the lack of judicial precedents, no blame can be attached to the applicant for not having expressly pleaded it before the Belgian courts in the context of proceedings for rectification of his birth certificate, these being proceedings subject to rather special legal technicalities.

In point of fact, the application in the instant case of the rule of exhaustion of domestic remedies as a pre-condition for submission of the matter to an international tribunal prompts the following observations.

The rule contemplates primarily the situation where the alleged breach of a norm of international law (be it customary or treaty law) is referable to an administrative or judicial act. In such circumstances, the respondent State should be allowed a prior opportunity to redress the alleged grievance by its own means within the framework of its own domestic legal system.

It is otherwise when the alleged b reach of the international norm results from the substantive content of a provision of domestic law or from a gap in such a provision. In that event, it is only exceptionally that the state of affairs complained of can be remedied by having recourse to a higher court.

In the present case, we are conf ronted with a situation falling within the second category. The process of bringing of domestic law into conformity with international law can in fact be carried through only by means of an adaptation of domestic law, something which the private individual is normally neither qualified nor able to bring about.

12. Having regard to the princip le of the separation of powers, it is indeed somewhat unlikely that the national judge could, either of his own motion or at the request of the applicant, have remedied a gap in the legislation, seeing that the issue involved was a fundamental one affecting personal status and that Article 8 (art. 8) hardly afforded the judge any precise indications in this respect.

Be that as it may, a remote pos sibility of this kind cannot be taken as a sound basis for applying the rule of exhaustion without disregarding the purpose served by this rule within the Convention system.

[*]  Note by the registry: For an English translation, see [1972] Common Market Law Reports 330.

[1] and 2 W. Ganshof van der Meers ch: Observations on legislative texts and the general principles of law, Journal des Tribunaux , 1970, pp. 557 et seq. and 581 et seq.

[2]