JOINT PARTLY DISSENTING OPINION OF JUDGE Sir Nicolas BRATZA AND JUDGES FUHRMANN AND TULKENS

(Translation)

We are unable to share the view of the majority that there has been no violation of Article 14 of the Convention, read in conjunction with Article 8.

1. Before explaining why we disagree over Article 14 of the Convention, we would like to make some additional comments concerning the applicability of Article 8 of the Convention.

We have no difficulty in accepting the European Commission of Human Rights' consistently expressed opinion that Article 8 of the Convention does not guarantee a right to adoption as such. We also accept that Article 8, which guarantees the right to respect for family life, may not be interpreted to safeguard the mere desire to found a family, whether by adopting or by any other means. In this connection, there is a distinction between the instant case and Salgueiro da Silva Mouta v. Portugal (no. 33290/96, ECHR 1999-IX), in which there was already an established family life between the applicant and his daughter, and the decision of the Lisbon Court of Appeal to award parental authority over the child to the applicant's ex-wife constituted a clear infringement of his right to respect for his family life and consequently fell within the scope of Article 8. It follows in the instant case that the rejection by the Conseil d'Etat of the applicant's application for authorisation to adopt did not entail a direct interference with his rights guaranteed by Article 8 of the Convention. Neither did it entail the breach of any form of positive obligation on the State to guarantee the applicant the right to respect for his private or family life.

However, as the present judgment clearly states, the matter cannot rest there, because the application also relates to Article 14 of the Convention. The Court's case-law establishes two major principles regarding the interpretation of this provision, which are directly relevant in the instant case.

Firstly, in as much as Article 14 has no independent existence, its application does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, just as it does not presuppose a direct interference by the national authorities with the rights guaranteed by such a provision. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question (see, among many other authorities, the following judgments: Abdulaziz, Cabales and Balkandali v. the United Kingdom , 28 May 1985, Series A no. 94, p. 35, § 71; Karlheinz Schmidt v. Germany , 18 July 1994, Series A no. 291-B, p. 32, § 22; and Petrovic v. Austria , 27 March 1998, Reports of Judgments and Decisions 1998-II, p. 585, § 22).

The second principle is closely linked to the first. Article 14 covers not only the enjoyment of the rights that States are obliged to safeguard under the Convention but also those rights and freedoms that fall within the ambit of a substantive provision of the Convention and that a State has chosen to guarantee, even if in so doing it goes beyond the requirements of the Convention. This principle was expressed for the first time by the Court in the case “relating to certain aspects of the laws on the use of languages in education in Belgium ” v. Belgium (judgment of 23 July 1968 , Series A no. 6, pp. 33-34, § 9). The Court noted that the right to obtain from the public authorities the creation of a particular kind of educational establishment could not be inferred from Article 2 of Protocol No. 1 and it continued as follows:

“... nevertheless, a State which had set up such an establishment could not, in laying down entrance requirements, take discriminatory measures within the meaning of Article 14.

To recall a further example, cited in the course of the proceedings, Article 6 of the Convention does not compel States to institute a system of appeal courts. A State which does set up such courts consequently goes beyond its obligations under Article 6. However it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions.

In such cases there would be a violation of a guaranteed right or freedom as it is proclaimed by the relevant Article read in conjunction with Article 14. It is as though the latter formed an integral part of each of the Articles laying down rights and freedoms. No distinctions should be made in this respect according to the nature of these rights and freedoms and of their correlative obligations, and for instance as to whether the respect due to the right concerned implies positive action or mere abstention.”

Similarly, in Abdulaziz, Cabales and Balkandali , cited above, the State was not found to be under any obligation pursuant to Article 8 of the Convention to authorise foreign wives residing in the country to be joined by their husbands despite the fact that the latter did not have any independent right of entry to or residence in the territory. Nonetheless, the fact that such a right or privilege had been granted and that the situation fell “within the ambit” of the right to respect for family life guaranteed by Article 8, required that the difference in treatment of persons authorised to reside in the country, namely in this case non-national wives who did not enjoy the right to be joined by their husbands, should be justified under Article 14 (pp. 37-38, § 78).

Applying these principles to the instant case, we consider that although Article 8 of the Convention does not guarantee the right to adoption as such, nor the right for a single person to adopt, the situation which forms the basis of the present application undoubtedly falls within the “scope” or the “ambit” of that provision. In the Court's case-law, the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which comprises, inter alia , the right to establish and develop relationships with other human beings and the outside world ( Niemietz v. Germany , judgment of 16 December 1992, Series A no. 251-B, p. 33, § 29), the right to recognition of one's identity ( Burghartz v. Switzerland , judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24) and the right to “personal development” ( Bensaid v. the United Kingdom , no. 44599/98, § 47, ECHR 2001-I).

Thus, by legally entitling single persons to apply for adoption, France went beyond what was required by way of a positive obligation under Article 8 of the Convention. Nonetheless, having granted such a right and established a system of applications for authorisation to adopt, it has a duty to implement the system in such a way that no unwarranted discrimination is made between single persons on the grounds listed in Article 14 of the Convention.

This position cannot in any way be considered to anticipate the implementation of Protocol No. 12 to the Convention, which was signed in Rome on 4 November 2000 and extends the criteria for the application of Article 14 of the Convention, which are limited to “the rights and freedoms set forth in [the] Convention”, to provide that “[t]he enjoyment of any right set forth by law shall be secured without discrimination ...” (Article 1). In the instant case, as the majority themselves acknowledge (see paragraph 32 of the judgment) and as we have just demonstrated, the situation of which the applicant complains does indeed fall within the ambit of Article 8 of the Convention and the right recognised under domestic law may not be granted in a discriminatory manner.

2. Having found that “Article 14 of the Convention, taken in conjunction with Article 8, is applicable” (see paragraph 33 of the judgment), the Court considers nonetheless that “the difference in treatment ... is not discriminatory within the meaning of Article 14 of the Convention” (see paragraph 43 of the judgment). This finding seems to us to be contrary in fact and in law to the requirements of Article 14 of the Convention as interpreted by the Court's case-law.

Wherever a legal system grants a right, in this case the right for everyone to apply for authorisation to adopt, it cannot grant it in a discriminatory manner without violating Article 14 of the Convention.

In the context of French law, which authorises all single persons, whether men or women, to submit an application for adoption (Article 343-1 of the Civil Code), we believe that the rejection of the application for authorisation, based solely on the grounds of the applicant's sexual orientation , amounts to a breach of Article 14 of the Convention. Of course it was not expressly stated that it was the applicant's homosexuality which was the reason for refusing the authorisation but, on the material presented, it can be conceded nonetheless that it was his “choice of lifestyle” which was the real reason for the decision. This is moreover what the Government Commissioner pointed out, in the following terms:

“In the light of the information in the case file, this question is elevated to a matter of principle. This case does not turn on its own facts because the documents in the case file leave me in no doubt that in many respects Mr F. has a genuine aptitude for bringing up children. The only thing that prompted the authorities to refuse authorisation was the fact that Mr F. was a homosexual and therefore that he did not provide sufficient guarantees that he would offer a child a suitable home from a psychological, child-rearing and family point of view. However, nothing in the case file suggests in any way that Mr F. leads a dissolute life and neither is there any reference in it to any specific circumstance that might pose a threat to the child's interests. Accepting the lawfulness of the refusal of authorisation in the instant case would implicitly but necessarily doom to failure all applications for authorisation to adopt by homosexuals ...”

As regards the scope of application of Article 14, there is no doubt that sexual orientation is covered by this provision, be it through discrimination on grounds of “sex” (which is the position of the United Nations' Human Rights Committee, particularly in its Toonen v. Australia decision of 4 April 1994) or on grounds of “other status” (European Commission of Human Rights, Sutherland v. the United Kingdom , no. 25186/94, report of the Commission of 1 July 1997, § 51, unreported). The Court itself acknowledges this in the present judgment (see paragraph 37). Furthermore, in Chapter III (on equality) of the EU's Charter of Fundamental Rights of 7 December 2000 , Article 21 expressly prohibits “any discrimination based on any ground such as sex ... or sexual orientation”. Recommendation 1474 (2000) of the Parliamentary Assembly of the Council of Europe recommends that the Committee of Ministers “add sexual orientation to the grounds for discrimination prohibited by the European Convention on Human Rights” and “call upon member States to include sexual orientation among the prohibited grounds for discrimination in their national legislation”. In its reply of 21 September 2001 , the Committee of Ministers assured the Assembly that it would continue “to follow the issue of discrimination based on sexual orientation with close attention”. It may therefore be reasonably argued that a European consensus is now emerging in this area.

As far as the constituent elements of discrimination are concerned, we must therefore examine in turn whether there is a difference in treatment in the instant case and, if so, whether it pursues a legitimate aim and there is a proportionate relationship between the aim pursued and the methods used. Not every difference in treatment is prohibited by Article 14 of the Convention, only those which amount to discrimination. According to the Court's established case-law, the principle of equality of treatment is infringed if the difference ascertained has no “objective and reasonable justification”.

(a) To determine whether there was a difference in treatment, it is necessary to place oneself in the domestic-law context once again. Prior authorisation to adopt is a procedure whose aim is to take a decision not in relation to a child but in relation to a potential parent and check that there is nothing to indicate that he or she would be unsuitable to adopt. Thereafter, it is for the civil courts to weigh up the interests of the parties when the adoption plans are formalised and in particular to assess whether the child's real interests are fully respected.

In the instant case, prior authorisation to adopt, which may be requested by any single person, was refused to the applicant solely because of his “choice of lifestyle” and not because this choice would pose any actual threat to a child's interests. Unless it is held that homosexuality – or race for example – is in itself an objection, the refusal of authorisation could only have been justified by Mr Fretté's homosexuality if it had been combined with conduct that was detrimental to a child's upbringing, and that was not the case here. In addition, in the applicant's case, as he moreover acknowledged himself, even if authorisation had been granted, it was not certain that a child would have been placed with him. Conversely however, if he had been a heterosexual or if he had concealed his homosexuality, he would certainly have obtained authorisation because his personal qualities were acknowledged throughout the proceedings.

Because the sole ground given for the refusal of authorisation was the applicant's lifestyle, which was an implicit yet undeniable reference to his homosexuality, the right guaranteed by Article 343-1 of the Civil Code was infringed on the basis of his sexual orientation alone (see, mutatis mutandis , Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, ECHR 1999-VI, and Lustig-Prean and Beckett v. the United Kingdom , nos. 31417/96 and 32377/96, § 71, 27 September 1999).

(b) Is this difference in treatment justified by a legitimate aim? As the Court has repeatedly pointed out “very weighty”, “particularly serious” or “particularly convincing and weighty reasons” are needed for a difference in treatment on the ground of sex to be regarded as compatible with the Convention (see Smith and Grady , cited above, § 90, and Lustig ‑ Prean and Beckett , cited above, § 82).

As the Government submitted, the decision to refuse the applicant authorisation stemmed from a desire to protect the rights and freedoms of the child who might have been adopted. In itself this aim may of course be legitimate, and in fact would even be the only legitimate aim. In the instant case, however, it has to be observed that the applicant's personal qualities and aptitude for bringing up children were emphasised on a number of occasions. The Conseil d'Etat even specified in its statement of reasons that there was no reference in the case file “to any specific circumstance that might pose a threat to the child's interests”. The legitimate aim was not therefore effectively established in any way.

In their general and abstract wording, the reasons given by the judicial authorities for their decision to refuse the applicant authorisation are based solely on the applicant's homosexuality and therefore on the view that to be brought up by homosexual parents would be harmful to the child at all events and under any circumstances. The Conseil d'Etat failed to explain in any way, by referring for example to the increasing range of scientific studies of homosexual parenthood in recent years, why and how the child's interests militated in the instant case against the applicant's application for authorisation.

(c) Finally, on the question of proportionality, we might conceivably accept the Government's view that some margin of appreciation should be afforded to States in the sensitive area of adoption by homosexuals. It is not for the Court to take decisions (or pass moral judgment) instead of States in an area which is also a subject of controversy in many Council of Europe member States, especially as the views of the French administrative courts also seem to be divided. Neither is it for the Court to express preference for any type of family model. On the other hand, the reference in the present judgment to the lack of “common ground” in the contracting States or “uniform principles” on adoption by homosexuals (see paragraph 41 of the judgment), which paves the way for States to be given total discretion, seems to us to be irrelevant, at variance with the Court's case-law relating to Article 14 of the Convention and, when couched in such general terms, liable to take the protection of fundamental rights backwards.

It is the Court's task to secure the rights guaranteed by the Convention. It must supervise the conditions in which Article 14 of the Convention is applied and consider therefore whether there was a reasonable, proportionate relationship in the instant case between the methods used – the total prohibition of adoption by homosexual parents – and the aim pursued – to protect children. The Conseil d'Etat 's judgment was a landmark decision but it failed to carry out a detailed, substantive assessment of proportionality and took no account of the situation of the persons concerned. The refusal was absolute and it was issued without any other explanation than the applicant's choice of lifestyle, seen in general and abstract terms and thus in itself taking the form of an irrebuttable presumption of an impediment to any plan to adopt whatsoever. This position fundamentally precludes any real consideration of the interests at stake and the possibility of finding any practical way of reconciling them.

At a time when all the countries of the Council of Europe are engaged in a determined attempt to counter all forms of prejudice and discrimination, we regret that we cannot agree with the majority.