PARTLY DISSENTING OPINION OF JUDGE BAKA JOINED BY JUDGES PALM, HEDIGAN and levits

I am unable to subscribe to the opinion of the majority of the Court that there has been a violation of Article 8 taken alone and Article 6 § 1. I agree however that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8.

As to the section which deals with the interpretation of Article 8 I agree with the majority that the relevant decisions of the national courts were in accordance with the law and that they served a legitimate aim, namely protecting the interests of the child, within the meaning of paragraph 2 of Article 8. I however disagree with the majority's opinion that “the refusal to order an independent psychological report and the absence of a hearing before the Regional Court” amounts to “an insufficient involvement of the applicant in the decision-making process” and that consequently “the national authorities overstepped their margin of appreciation” under Article 8.

The Court has constantly emphasised that the national authorities are better placed to evaluate the evidence adduced before them (see among other authorities the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 18, § 40). It has also pointed out that “as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce” (see the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp 32-33, § 33).

This constant case-law and the whole logic of the system established by the Convention impose reasonable limits on the scope of control over the national courts' fact finding and assessment of evidence by the European Court. In this respect the domestic courts – rightly – should enjoy a wide margin of appreciation. It is true that this margin of appreciation is not unlimited and is ultimately subject to stricter scrutiny, but this international supervision cannot go as far as reassessing national-level evidence in a larger number of cases.

The margin of appreciation left for the national courts is even broader in cases like the present one which concerns primarily the interests of the child's well-being. In this case I am satisfied with the fact that the District Court, after having heard the parents and the child first on 4 and 9 November 1992 and subsequently on 8 and 15 December 1993, dismissed the applicant's renewed request to be granted access rights. After the oral hearings and the two lengthy interviews with the child only this court had the benefit of direct contact with the members of the family and was able to clarify fully the strained relationship between the parents and to decide according to the best interests of the child. After this careful examination only this court was in a position to say that it was clearly unnecessary in the particular circumstances of the case to accept the recommendation of the Erkrath Youth Office to obtain a psychological expert opinion on the question of access rights. The opposite decision would have been not only unjustified but it could also have caused additional unnecessary stress to the child.

I am also of the opinion that the decision of the Regional Court not to conduct a further oral hearing and to decide on the basis of the written material was in the circumstances a reasonable and acceptable decision. It is very hard to believe that less than two months after the first-instance oral hearings and interviews the Regional Court would have obtained any further benefit from a repeated oral hearing on that level. The Regional Court explained the reasons for its decision. Moreover, the Court has held on a number of occasions that “provided that there has been a public hearing at first instance, the absence of 'public hearings' before a second or third instance may be justified by the special features of the proceedings at issue” (see the Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, pp. 22-23, § 58; the Ekbatini v. Sweden judgment of 26 May 1998, Series A no. 134, p. 14, § 31; and the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36).

On the basis of the above considerations I hold that the national authorities did not overstep their margin of appreciation under Article 8 and there has been no procedural violation in the present case. Consequently, I find no violation of Article 8 and Article 6 § 1 of the Convention.

[1] . Note by the Registry. Protocol No. 11 came into force on 1 November 1998.

[2] . Note by the Registry. Copies of the report are obtainable from the Registry.