PARTLY DISSENTING OPINION OF JUDGE BÃŽRSAN

(Translation)

I regret that I am unable to agree with the majority ’ s conclusion that there has been a violation of Article 6 § 1 of the Convention in the present case . To my mind, the majority have adopted an overly formal approach under A rticle 6 § 1 , which I cannot accept for the following reasons .

The judgment, it has to be emphasised, reaches a finding of a violation of A rticle 6 § 1 of the Convention on the ground that the authorities refrain ed for more than three years from taking the effective measures required to comply with final, enforceable judicial decisions ( see paragraphs 187 and 188 of the judgment ). In my opinion, such a conclusion is difficult to reconcile with that reached by the majority under A rticle 8 of the Convention ( see paragraph 166 of the judgment ) , which I wholly endorsed after careful reflection.

I acknowledge that the majority ’ s arguments in finding a violation of Article 6 § 1 – based, in particular, on the lack of police assistance in the enforcement procedure – are sound and do not in any way conflict with our Court ’ s case-law ( see, among other authorities , Hornsby v. Greece , judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, pp. 510-11, § 40 ; B urdov v. Russia , n o. 59498/00, § 34, ECHR 2002-III ; Ruianu v. Romania , n o. 34647/97, § 65, 17 June 2003 ; and Jasiūnienė v. Lithuania , n o. 41510/98, § 27, 6 March 2003).

While emphasising my firm attach ment to the principles established in such settled case-law, to the effect that “ the right to a court would be illusory if a Contracting State ’ s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party ” and “e xecution of a judgment given by any court must therefore be regarded as an integral part of the ‘ trial ’ for the purposes of Article 6 ” , I nonetheless consider that a less formalistic approach was required here, in view of the very particular circumstance s of the case.

W ith all due respect to my colleagues, I feel that more consideration should have been given to the fact that the judicial decision s in question concerned extremely sensitive and delicate issues, since in my opinion a certain paradox emerges from the judgment . The majority attached decisive weight under A rticle 8 to the children ’ s overriding interest in remaining within the CEPSB ; that interest dictated that their opinions on the subject should have been taken into account once they had attained the necessary maturity to express them ( see paragraph 164 in fine ). I had no hesitation in agreeing with that conclusion. From a reading of the judgment it is quite understandable that such an interest was deemed sufficient to justif y the authorities ’ lack of cooperation in allowing the applicants to develop ties with the children.

But was the same overriding interest of the children not also relevant, in the same manner and to the same extent, under A rticle 6 § 1 of the Convention ? How, in the particular circumstances of the case, can a purely theoretical approach have prevailed – correct though it may have been from a dogmati c or procedural standpoint – with no consideration being given to the importance of what was at stake in terms of the children ’ s best interests ?

I consider that a more balanced approach was highly advisable in this case and , in this connection, I am pleased to note that the Court ’ s more recent case-law concerning the execution of judicial decisions is less characterised by formalism than before . I would simply refer to the Sylvester v. Austria judgment of 24 April 2003 (n o s . 36812/97 and 40104/98), in which the Court held in paragraph 63 that “ a change in the relevant facts may exceptionally justify the non-enforcement of a final return order ”. I consider that that judgment marks a significant change from the Court ’ s previous strictly theoretical approach to the matter .

Nor can I neglect the views expressed recently along similar lines in dissenting opinions in judgments concerning the execution of judicial decisions, to the effect that “access to a tribunal cannot require a State to enforce all judgments in civil cases regardless of their nature and the circumstances” ( see the dissenting opinion of Mrs Thomassen in Ruianu , cited above ). I would stress that that particular case concerned the demolition of a building which the applicant ’ s neighbours had begun to erect, adjoining his house and occupying a small part of his land; this caused me to vote with the majority in favour of finding that there had been a violation of A rticle 6 § 1 of the Convention .

The circumstances of the present case were quite different, being at once much more delicate and more complicated: two young girls were required to move to a foreign country to join adoptive families whom they barely knew . The only criticism that could be made of the national authorities, in my opinion, would be that they did not take all the necessary measures to allow bonds to develop between the girls and the applicant s ’ families prior to adoption; that, moreover, would appear to be a problem for any intercountry adoption in any State party to the Convention.

In any event, I am persuaded that in this case there were indeed exceptional circumstances justifying the non-enforcement of the adoption orders in respect of Florentina and Mariana.

In finding a v iolation of A rticle 6 § 1, the majority tipped the balance of the interests at stake in favour of the adoptive parents ’ procedural right to the enforcement of a judicial decision, appearing to disregard the considerations that had led them to find that there had been no violation of A rticle 8. Such considerations, rightly outlined in paragraphs 159 and 160 of the judgment , were to my mind also entirely applicable under Article 6 § 1 of the Convention and constituted relevant and sufficient grounds for finding no violation of the right guaranteed by that provision .

It should not be forgotten that in paragraph 162 of the judgment the majorit y themselves observed that “the enforcement of the decisions in the applicants ’ favour, with the children moving to Italy, would have made it difficult for the children and harmful to their interests to return to Romania in the event of a subsequent court decision setting aside or revoking the adoption orders” .

Furthermore, the respondent Government ’ s argument, as summarised in paragraph 172 of the judgment , that there had not been any lengthy periods in the present case during which no steps had been taken to enforce the adoption orders in issue does not appear unreasonable to me, having regard to the repeated stays of execution ordered by the national courts pending the conclusion of the various judicial proceedings in progress across the country . I consider that such proceedings were likely to dispel any uncertainties regarding the lawfulness of the adoptions and that the authorities were right to await their conclusion before resorting to enforcement measures of a permanent nature.

It is not insignificant in this context to note that one of the sets of proceedings in question recently resulted in the order for Mariana ’ s adoption being revoked ( see paragraph 83 of the judgment ).

For all these reasons, I find it regrettable that the Court did not grasp the opportunity afforded to it by this sensitive and delicate international adoption case to confirm a new, more balanced and less formalistic approach to the issue of execution of judicial decisions .