PARTLY DISSENTING OPINION OF JUDGE RESS JOINED BY JUDGES PASTOR RIDRUEJO AND TÃœRMEN

1. As in Sommerfeld v. Germany , we cannot, to our great regret, agree with the majority ' s opinion that there has been no violation of Article 8.

2. The fundamental issue raised by this case under Article 8 concerns the procedural requirements implicit in th at Article, requirements which the Court has already developed and clarified on many occasions. It is one of the basic requirements in relation to parents ' rights of access to their children that there exist legal safeguards designed to secure the effective protection of the rights of parents and children to respect for their family life (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000-VIII; Kutzner v. Germany , no. 46544/99, §§ 65-66, ECHR 2002-I; and Covezzi and Morselli v. Italy , no. 52763/99, 9 May 2003). A decisive element of these “parental rights of access” resides in the question whether the level of involvement of the applicant in the decision-making process, seen as a whole, provided him with the requisite protection of his interests. The procedural rule should be that first established in Elsholz (cited above), namely that the domestic courts should assess the difficult question of the child ' s best interest s on the basis of a reasoned and up-to-date psychological report, and that the child, if possible, should be “heard” by the psychological expert and the court.

3. We consider that in this case the applicant was not sufficiently involved in the decision-making process because of the fact that the applicant ' s then 5- year-old daughter, with whom he had had relations for more than two years when he had lived with the mother of the child, had not been heard personally. The decisive factors for the District Court in rejecting the applicant ' s request for access to his daughter were “the strong differences between the parents” and the mother ' s opposition to any contact between the child and the father, although the court realised that the father had genuine affection for his daughter. The expert heard by the Regional Court reached the conclusion that granting a right of access without a prior conversation to overcome the conflicts between the parents was not in the child ' s interests. That would mean, in other words, that without the mother ' s consent, the father would never gain a right of access. Under these circumstances the possibility cannot be excluded that the mother tried to alienate the child completely from her biological father. Such conduct was made possible, at least more or less, by the legal situation at the material time under Article 1711 of the Civil Code.

4. As the Chamber stated ( in paragraphs 47 and 48 of its judgment ), the expert herself had not even asked the child about her father. Even if the will and the wishes of a 5 -year-old girl cannot be decisive for the question of access, it would nevertheless have been important to know the child ' s answer to the question whether she would like to see her father in order for the expert to ascertain the child ' s true wishes. We can only underline the Chamber ' s conclusions that “correct and complete information on the child ' s relationship to the applicant as the parent seeking access to the child is an indispensable prerequisite for establishing a child ' s true wishes and thereby striking a fair balance between the interests at stake” (paragraph 48 of the Chamber ' s judgment).

5. Also in this case, as in Sommerfeld , the law in force at the time of the national courts ' decisions – that is, the discrimination between the position of fathers of children born out of wedlock and born within marriage – influenced the whole court proceedings and therefore not only violated Article 14 of the Convention taken in conjunction with Article 8 , but also contributed considerably to the violation of Article 8 taken alone. The applicant was from the very beginning in the rather difficult position, under the law, of having to prove that personal contact with the child would be in the child ' s interest, whereas normally for children born within a marital relationship this interest is presumed and access can be denied only where it is contrary to the best interest s of the child. On the other hand, fathers of children born out of wedlock have to prove that it is positively in the child ' s interest to have personal contact with him or her. This rule placed the applicant, Mr Sahin, in a very unfavourable situation. In order to prove that further contact was in his daughter ' s interest, he had to overcome the explicit opposition of the child ' s mother. In order to establish that such contact would not disturb the relations between the mother and the child it would have been necessary to speak to the child about her father. The fact that the father was not mentioned in any way to the child, either by the psychological expert or by the court itself, which could have made special arrangements in view of the child ' s very young age, left the father with the burden of proof. There is no satisfactory answer to the question as to what else he could have done to prove that relations with her father would be in the child ' s interest, a conclusion which for children not born out of wedlock would have been presumed under the law in force at the time of the decision.

Because of the insufficient involvement of the applicant in the decision-making process – in that he was denied the opportunity to speak directly to his daughter, either outside or inside the courtroom, even with the psychological expert present – seen together with the burden of proof he had to bear in relation to the best interest s of the child, we have come to the conclusion that there has been a violation of Article 8 of the Convention .