DISSENTING OPINION OF JUDGE ZUPANČIČ

1. I have voted against finding a conditional violation of Article 8, in other words, finding that there would be a violation in the event of the enforcement of the Federal Court’s judgment of 16 August 2007. In my opinion, for two reasons, there has already been a violation of Article 8 of the Convention.

2. It is clear that the violation would have fully materialised, that is to say, the Swiss court’s decision would have been executed, were it not for this Court’s own imposition of an interim measure (under Rule 39 of the Rules of Court).

3. In this and a few other senses the violation has clearly been consummated in Switzerland.

4. This Court has never addressed, as potential violations, mere executions of final judgments (the reverse is true, however, for non-executions).

5. If a violation is found by this Court, it refers to the final decision in the domestic jurisdiction – rather than its mere execution.

6. In more practical terms, the hypothetical violation found by the majority now probably prevents the applicants from reopening the proceedings in the domestic courts. Moreover, under Swiss law, which has been in the laudable forefront of this development, a finding of a clear violation by this Court, rather than merely a hypothetical one concerning the execution of a final judgment, would necessitate not only reopening in a domestic court.

7. For it is now clear that such reopening would also require the Swiss domestic court to follow this Court’s judgment, not only in its operative part but also in its reasoning.

8. If that were not the case – and this has also become clear – the applicants could then come back to the European Court of Human Rights and request that the domestic judgment, such as it might be, be brought into line with the Court’s judgment.

9. The second of those two reasons is not merely pragmatic. It raises the important question of the extent to which the judgments of the European Court of Human Rights are in fact binding on national courts.

10. But it is of course the first reason which is decisive, because it implies that the violation vel non for this Court may hinge upon the simple fact of the execution vel non of a final domestic judgment – and execution in the present case has, moreover, been suspended only because of our own imposition of an interim measure (under Rule 39).

11. My substantive objection to the majority judgment, however, derives from its completely warped reliance on Maumousseau and Washington v. France (no. 39388/05, 6 December 2007).

12. Like cases should be decided alike. It is clear that the fact patterns in both cases are analogous, except that the risk for the mother in Maumousseau and Washington , had she returned to the United States of America, would have been much greater, including possible arrest at the border, not to mention the 25,000 United States dollar deposit and the fact that she could only have seen her child in the presence of a guard in the courthouse for about half an hour – these being just some of the draconian conditions imposed by the family court judge in the first-instance family court of New York State.

13. If anything, the situation in the Maumousseau and Washington case was considerably worse, when compared to the situation in the present case.

14. It is therefore clear that the Neulinger and Shuruk v. Switzerland case straightforwardly reverses the Section III case of Maumousseau and Washington v. France .

15. This is very easy to prove. The respondent in the present case, the Swiss Government, relied squarely on the Section III judgment in Maumousseau and Washington (see paragraph 119 of the judgment).

16. In Maumousseau and Washington , the Section’s majority – but see my dissenting opinion! – stated that the aim of the Hague Convention was to prevent the “abducting parent” from succeeding in legitimating, by the passage of time operating in his or her favour, a de facto situation which he or she had brought about unilaterally ( nemo auditur propriam turpitudinem allegans ). The Section chose to disregard the best interest of the child contingent upon the passage of time and other factors concerning the father.

17. It follows that in terms of stare decisis , the reliance of the Swiss Government upon Maumousseau and Washington was inescapably logical.

18. The Swiss Government was free a fortiori to take it for granted that the fact pattern in Neulinger and Shuruk , when compared with the situation in Maumousseau and Washington , was considerably less disadvantageous to the mother and to the child . There the child had in the end been brutally snatched from the hands of the mother and delivered to the father in New York, with whom the girl, among other things, had never lived alone before.

19. Suffice it to say, as I have already explained my position in the Maumousseau and Washington case, that the Swiss authorities in their stare decisis reliance on the latter had every reason to believe that in Neulinger and Shuruk the Court would a fortiori take the position that there would have been no violation had the child in fact been sent back to Israel.

20. Inexplicably, the Grand Chamber panel rejected the request for referral of Maumousseau and Washington.

21. Nevertheless, the issue, wrongly decided in Maumousseau and Washington , has now ricocheted and the Court has reached, despite the hypothetical nature of the violation found here, a reasonably correct decision.

22. It follows inexorably that Neulinger and Shuruk is a complete reversal of Maumousseau and Washington and its “logic”.

23. It is certainly bizarre to quote Maumousseau and Washington as if it were a case not only compatible with but actually supportive of the outcome in Neulinger and Shuruk .

[1] . Macready v. the Czech Republic , nos. 4824/06 and 15512/08, 22 April 2010 (not final at the time of adoption of the present judgment).