PARTLY CONCURRING OPINION OF JUDGE COSTA JOINED BY JUDGES JUNGWIERT AND TRAJA

(Translation)

The European Court of Human Rights is often faced with two particular problems although it rarely encounters both at the same time. The first relates to the determination of the substantive scope of the Convention and the second to the margin of appreciation afforded States in certain areas by the Court's case-law.

Fretté v. France was a case in which the Chamber had to deal with both problems simultaneously and so it is not surprising that it was divided on the subject. I myself found that there was no breach of Article 14 of the Convention taken in conjunction with Article 8, but for a quite different reason from that of the majority, relating to the applicability or rather, as far as I was concerned, the inapplicability of these provisions. I shall attempt to explain my reasoning.

It is not disputed that the issue at the heart of this case is the ground for the dismissal of the applicant's application for authorisation to adopt, namely his homosexuality, which he courageously revealed during the inquiries carried out as part of the authorisation procedure, which is the responsibility of the social services in the relevant département , in this case Paris. The judgment of the administrative court, which quashed the decision to refuse the applicant authorisation, stated this expressly. Although the Conseil d'Etat's ruling, which set aside the administrative court's judgment and upheld the social services' decisions, referred more discreetly to the “applicant's choice of lifestyle [which] was to be respected”, the masterly submissions by Mrs Christine Maugüe , Government Commissioner before the Conseil d'Etat , of which she is also a member, leave it in no doubt that it was because Mr Fretté claimed to be a homosexual that he was refused authorisation. Mrs Maugüe also emphasised that the Conseil had been called on to give a landmark ruling on this matter (see the extracts from her submissions cited in paragraph 15 of the present judgment).

I would also point out that the French adoption procedure requires an initial administrative authorisation, which is granted or refused in abstracto depending on the guarantees offered by the applicant (or applicants in the case of a couple) in terms of the kind of home that the child would be offered from a psychological, child-rearing and family perspective. This authorisation is not sufficient in itself for the adoption to proceed because the adoption is approved or rejected in concreto by the tribunal de grande instance and the parties and the public prosecutor may appeal against its decision. However, it is a practically indispensable prerequisite since the adoption cannot proceed without prior authorisation save where the child is in State care and has already been placed in the custody of the persons applying for adoption or in the event provided for by Article 353-1 of the Civil Code (“If authorisation has been refused, the courts may approve the adoption if they consider that the applicants are capable of providing the child with a suitable home and that adoption is compatible with the child's interests”). There is no chance that the first exception will operate in Mr Fretté's favour and hardly any more likelihood that the second will either.

The facts of the case are therefore clear. In practice a homosexual such as the applicant is denied any possibility of adopting a child, and at any rate that is the position in the present case.

Paragraph 27 of the judgment wisely refers to the Court's case-law on the subject, according to which Article 14 is not applicable unless the facts at issue fall within the ambit of one or more of the provisions of the Convention. This interpretation of Article 14 is the logical consequence of what it actually states: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination ...” It is supported still further by the converse implication of Protocol No. 12, which was signed on 4 November 2000 but is not yet in force and introduces a blanket ban on discrimination: “The enjoyment of any right set forth by law shall be secured without discrimination ...” Although the European legislature has decided to go further than it did in 1950, should the European Court be swayed by what it thinks the position in law ought to be and anticipate the entry into force of a Protocol which clearly expresses that intention but is subject to the ratification of the States? In my opinion the answer has to be no, if the Court's will is not to be given precedence over the States which founded it.

Given therefore that the current interpretation of Article 14 remains valid – and let it be said in passing that raising the question of a potential violation of Protocol No. 12 when it enters into force is both premature and debatable because it is not certain that the legal authorisation procedure actually establishes a right or a freedom to adopt – I believe that Article 14 does not apply in the instant case.

First of all, the Convention does not guarantee a right to adopt (see the decisions of the European Commission of Human Rights cited in the judgment, particularly that of 10 July 1997 on the application by Mrs Dallila Di Lazzaro), or even any protection of the desire – however respectable – to found a family (see the judgments cited in paragraph 32, particularly Marckx ). Nor are any rights of this sort to be found in any of the other international instruments which, although not binding on our Court, may provide it with guidance, such as the United Nations Convention on the Rights of the Child.

Secondly, it is not enough to state, as the applicant did (see paragraph 28 of the judgment), that a person's sexual orientation is part of his or her private life. This is of course true and I had no doubt in finding for example that there was a breach of Article 8 in the case of homosexuals of both sexes who were dismissed from the armed forces for homosexuality (see Lustig ‑ Prean and Beckett v. the United Kingdom , nos. 31417/96 and 32377/96, 27 September 1999, and Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, ECHR 1999-VI). However, that was because there had been an interference in the applicants' private lives, as in other famous cases such as Dudgeon v. the United Kingdom (judgment of 22 October 1981, Series A no. 45) or Modinos v. Cyprus (judgment of 22 April 1993, Series A no. 259), the circumstances of which are so well known that I will not go over them again (criminal punishment of homosexual relations). In this case, precisely given that there is no right to (adopt) children and the Convention does not safeguard the desire to found a family, there was in my view no interference by the State in Mr Fretté's private or family life. The rejection of Mr Fretté's application for authorisation was not in itself a violation of his private life or of his status as a single man without children. Might it legitimately be said that the very reasons for the negative response constituted an interference in his private life in that they stigmatised a certain choice of lifestyle? There may be some hesitation on this point but ultimately I do not believe it can be true because the département's attitude, which was reflected in reports that were, moreover, well balanced and not hostile towards the applicant on principle, mainly took account of the interests of the child likely to be adopted in the event that authorisation was granted. Whether the authorities were right or wrong is another question, but in any event their decision does not seem to me to affect the right to respect for private and/or family life within the meaning of Article 8.

Thirdly, I would like to submit, with all due respect for my colleagues, that paragraph 32 of our judgment, which finds Article 14 taken in conjunction with Article 8 applicable, is unconvincing. It expressly refers to a right guaranteed to the applicant by Article 343-1 of the Civil Code, but this Article merely states that adoption may be applied for and the possibility of applying for something does not establish a right to obtain such a thing otherwise the words would be meaningless. Implicitly, this paragraph is based on the idea that the rejection of Mr Fretté's application did indeed constitute a violation by the State of his right, but this seems to me to be a piece of circular reasoning.

My last point relates to the applicant's argument based on Thlimmenos v. Greece ([GC], no. 34369/97, ECHR 2000-IV) which the present judgment, moreover, does not follow in the section setting out the Court's reasoning. While recognising that Thlimmenos broadened the applicability of Article 14, I do not find the analogy convincing because in that case what was at issue was an exclusion based on the fact of having committed a crime and the failure to take account of the fact that the crime of which the applicant was accused was solely the consequence of his exercising his freedom of religion. In the instant case the applicant was not, I am glad to say, subjected to a criminal penalty because of his private life. The rejection of his application could just as easily have been the answer given – as happens every day – to other single persons like him or couples applying for authorisation to adopt, whose applications are rejected not because of their sexual mores but because the département considers that they do not provide sufficient guarantees that they will offer a child a suitable home from a psychological, child-rearing and family perspective (incidentally, although in Thlimmenos , in which I sat, the Court reached a unanimous decision, I do wonder whether it may have gone a little far on that occasion, and I note that the judgment was delivered before the opening for signature of Protocol No. 12 – which I view as a key factor).

In short, I do not see how I could find Article 14 applicable in this case, even when taken in conjunction with Article 8.

Having arrived at this definite conclusion, I shall make only a few brief comments on this second matter, because my finding that the Articles in question were inapplicable inevitably leads me to find that there was no violation.

In reality, the judgment arrives at the latter conclusion through a combination of the concept of the margin of appreciation, whose scope is influenced by the nature of the subject at issue and the lack of any common ground in Europe in this area (see paragraphs 40 and 41 of the judgment), and the child's best interests (pre-eminence of the rights of the child over the right to a child) in the absence of any consensus in the scientific community on the impact of adoption by a single homosexual person or a homosexual couple (see paragraph 42 of the judgment). In reality, most of the majority have based their decision, without saying so, on the precautionary principle.

If I had had to decide one way or another, I would have been very hesitant. I recognise that the above arguments are strong and that they are not at variance with the Court's case-law. On the other hand it could be argued both that French law does not prohibit adoption by a single homosexual and that it appears from the file that the applicant seemed to offer many guarantees tending to confirm the belief that he could make a child happy even in the absence of a maternal or female role model. However the Court endeavours to rule on the actual circumstances and not take general, abstract decisions.

There are therefore arguments in both directions and the conclusion reached depends on the angle from which the matter is viewed, namely whether the emphasis is put on the subsidiarity of the European Court of Human Rights' role or on the importance of the “European supervision” it is supposed to carry out.

Yet in the end everything holds together for how can European supervision be given preference to subsidiarity when the right asserted by the applicant – however understandable it might be on an emotional and personal level – is neither a right within the meaning of national law nor a freedom guaranteed by the Convention?

The fundamental paradox of this judgment seems to me that it would have been easier to justify the rejection of the complaint on the legal basis of the inapplicability of Article 14 than to declare Article 14 applicable and then find no breach of it.