DISSENTING OPINION OF JUDGE ZUPANČIČ JOINED BY JUDGES PANŢÎRU AND TÜRMEN

We cannot agree that there was, in this case, no violation of Article 8. Beyond that, however, this litigation raises a number of fundamental concerns about the enforcement of final judicial decisions in child custody cases and consequently about the rule of law.

Recently, the Court has dealt with an identical issue in Ignaccolo-Zenide v. Romania (no. 31679/96, ECHR 2000-I). The recurring problem in these and other similar cases is the non-enforcement of judicial decisions and the insufficient judicial control over the so-called social services once judgment has been rendered. The difficulty derives from the idiosyncratic nature of custody and access issues.

Even so, it is an elemental requirement in judicial conflict-resolution to resolve disputes with finality and irrevocability. The doctrines of res judicata , legal certainty, ne bis in idem (in criminal procedure), for example, and ultimately the principle of the rule of law, call for no less. Needless to say, finality of judgment without its enforcement remains mere suggestion. In its judgment in Hornsby v. Greece ( judgment of 19 March 1997 , Reports of Judgments and Decisions 1997-II, pp. 510-11, § 40) this Court indeed reiterated that the “right to a court” embodied in Article 6 § 1 of the Convention does not only include the right to institute civil proceedings. That right would be illusory if a Contracting State's domestic legal system allowed for a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see the Hornsby judgment cited above).

The ultimate advantages attained by the mother's recalcitrance in this case bring to mind the old legal phrase of beatus possidens . Although the concept originally referred to property law situations in which the person in actual possession of the disputed object had a clear advantage over the person still claiming property rights but not having the possession, it seems strangely appropriate in the present case. In property law, the uncertainty of the situation, during which the legally questionable possession nevertheless continues, may last for years. Once, however, the rei vindicatio is finally resolved, the object of dispute is physically returned to the rightful owner. Typically, the mere potential of a right stands out against the unacceptable actual state of affairs. The ultimate purpose of legal process is thus to enforce the change of that state of affairs.

The enforcement of judicial decisions, in turn, is at the centre of the rule of law question. Rule of law entails the replacement of private power, including the passive resistance of the beatus possidens , with public power. If subjects of the State are denied the legal assistance of public power, that is, are denied real justice, this leads to prevalence of the law-violating over the law-abiding citizens. This lawlessness diminishes the trust in the rule of law and causes anomie.

Of course, in child custody cases the courts do not deal with inanimate objects such as may be subject to possession and property rights and in which implementation may be achieved by sheer force. In child custody cases the law addresses enduring, painfully emotional and ever-changing relationships between parents and their offspring. The judgments here, because they concern human relationships, cannot be enforced with the same determination and severity. Yet, not all family-law disputes are of this kind. Unless property rights are involved, we may, for example, in simple divorce proceedings easily obtain a declarative, that is, not even constitutive, finality of dissolution of a chronically troubled emotional relationship. But while people may be eager to give real effect to the legal dissolution of a marriage relationship, the opposite may be true when it comes to the custody over their children.

The joint custody of both parents, in other words, is not a negative dissolution of a relationship. A child custody ruling by the court is the positive establishment of a legally regulated, but often intrinsically tense, triangular relationship. It is in the power of law, perhaps, to dissolve all kinds of relationships. It is not in the power of law to inaugurate and implement compassionate human relationships. Law may have power over the morality of duty, but it cannot even address the morality of aspiration. Love is impossible to legislate and adjudicate.

Paradoxically and a fortiori , as this case seems to demonstrate, prompt implementation of judicial decisions is a concern in such situations.

In custody litigation the best interests of the child are the foremost, although not the only, criterion of justice. Our own case-law indicates that the best emotional interests of the child are inextricably bound up with the emotional interests of both parents – or even those of the grandparents and other relatives. As the case at hand amply demonstrates, however, what was in the best interest of the child yesterday may today or tomorrow no longer be in his or her best interest. The finality of judicial decisions in child custody disputes is, therefore, always provisional and often impermanent.

Moreover, the tardiness or even the lack of enforcement of that finality, as in this case, may change the very assessment as to what is now in the best interests of the child. If in addition, in an ongoing custody dispute, the delay itself is deliberately caused by the party required to abide by the final judicial decision, the problem metamorphoses into a logical absurdity.

How does this absurdity arise?

Judicial decisions are rendered through a logical syllogism (or, in the common-law tradition, through stare decisis analogy) in which the judge selects a major premise (the norm or the applicable case) depending on how he or she initially perceives the facts. Thereafter, in a process which the French fittingly call la qualification du cas , the facts made relevant by the selected norm come into focus. The selected legally relevant facts may modify the previous choice of the applicable major premise, or they may confirm it. Once this dialectic between the norm and the facts is settled, the subsumption of facts under the norm yields a judicial conclusion made explicit in the reasoning of the judgment . If this reasoning is persuasive on appeal, the judgment becomes final. This finality – res judicata pro veritate habetur ! – implies immutability but above all straight enforceability of the judgment .

It is clear, therefore, that the facts, once selected as relevant – what we usually call “the truth” – are the independent variable of judicial decision-making. This is why Maat , the goddess of justice, was always portrayed with feathers, the Egyptian symbol of truth. The assumption in all this is, of course, that the facts of the case are a constant, that they are permanently given.

Indeed, in most cases legally relevant facts are irretrievably lost in the past and are therefore not liable to change. The choice of the applicable legal norm thus depends on unchangeable past events. It follows logically, that legal judgment is predetermined by the established veracity of the matter. Such predetermination based on past events, since it excludes arbitrariness, is another cornerstone of the rule of law.

In child custody litigation, however, where the recalcitrant parent delays implementation of the theoretically final judicial decision, the crucial fact of time – during which the child is critically and definitely alienated from her own father – changes the whole equation. After a decisive passage of time it is then suddenly no longer in the best interest of the so-alienated child to even recognise her own father...! Under the same norm, that is, under the same major premise, the fact changed through the critical passage of time has forced a converse judicial conclusion.

The supervening change of decisive facts is practically possible in any legal situation, for example, pre-trial detention situations, refoulement cases, etc., in which the facts of the case are not fixed in the past. In such cases facts remain subject to change. Here, under the same normative major premise the future change in a factual pattern may trigger an opposite conclusion and judgment . For example, a pre-trial detention decision based on the so-called collusion danger may apply today, but will no longer apply tomorrow if depositions of witnesses have been fixed, material evidence obtained, etc. In such cases, the ne bis in idem doctrine does not apply, the irrebuttable presumption of res judicata 's veracity becomes rebuttable , etc. Instead of one finality we may have many finalities of judgment – over the same subject matter. This is often the case in custody matters, too.

Turning to the specific case at hand, we note that even after the mother had refused to comply with the access arrangements modified largely according to her wishes the Helsinki District Court, in March 1998, for the second time declined to order that the child be brought in person to meet the applicant. It is true that the mother was ordered to pay the administrative fines imposed on 7 April 1997 in the amount of FIM 16,000. She was also ordered to comply with the access arrangements on pain of a further automatically staggered fine amounting to FIM 20,000 at the outset, to be increased by FIM 6,000 for each further act of non-compliance. However, she was eventually relieved of paying the first fine and the last-mentioned fine was waived following the revocation of the child's access rights in April 1998. The District Court, again sitting in a different composition, had by then become convinced that the mother's fear of the applicant was genuine, thus explaining why she had consistently refused to let the child meet him even under supervision.

In view of his numerous requests for enforcement, we are satisfied that the applicant himself took reasonable steps before the courts to seek implementation of the access arrangements. It is true that he may have contributed to the delays at the enforcement stage by not cooperating further, in particular with the Kuopio and Helsinki social authorities in the preparation of their opinions to the Helsinki District Court in the course of the second set of civil proceedings in the middle of 1997. It may also be true that he repeatedly behaved in an inappropriate and even aggressive manner towards the social welfare officials and the conciliators investigating the matter. We are nonetheless prepared to make certain allowances for the frustration which he must undoubtedly have experienced after the unsuccessful enforcement attempts which, around that time, had lasted some three years. It is important to recall that in early 1997 the applicant had consented to various modifications of the access arrangements requested by the mother, only to see her persist in her defiance of the court orders. Moreover, even though it was the mother who was clearly at fault for refusing to bring the child to the meetings, the Helsinki Social Welfare Authority began to question whether it was still in the child's best interests to meet her biological father. Reference was made, in particular, to his aggressiveness towards social welfare officials and to his refusal to attend meetings with them. At no stage during the social authorities' and the conciliators' investigations in 1997 was the child interviewed alone with a view to ascertaining her genuine attitude towards the applicant. When questioning the applicant's abilities to relate to his child the social authorities and experts relied in part on the fact that no meeting had ever taken place between the two.

The Government have also alluded to the applicant's criminal past and have questioned his mental health. We note, however, that the gist of this argument, namely that the applicant would somehow not be fit to see his daughter and would jeopardise her development if such meetings were to be enforced, had already been examined in the first set of custody and access proceedings before the Kuopio District Court which resulted in the very limited access rights granted to the child. Moreover, in its decision of 7 April 1997 the Helsinki District Court found that the fresh evidence regarding the applicant's mental state did not show that enforcement of the access arrangements would be contrary to the best interests of the child, bearing in mind the limited access and the way it was to be implemented. This finding was concordant with the Helsinki Social Welfare Authority's opinion of 29 May 1995, which stressed that the child would eventually benefit from getting to know the applicant's good and bad features.

We note that the possibility for a court to order that a child be escorted to meetings with a view to enforcing its access rights was introduced in the 1996 Act, that is to say following the Court's judgment in the case of Hokkanen v. Finland in which similar non-enforcement of access rights was held to violate Article 8 of the Convention ( judgment of 23 September 1994, Series A no. 299-A). In the 1996 Act the legislator placed particular weight on the best interests of the child. The conciliator or a representative of the social welfare authority must therefore be present during that procedure, which can only be ordered for one meeting at a time. The conciliator must request the presence of a person close to the child and, if necessary, that of a physician or another expert. All measures must be carried out to minimise the shock to the child. If enforcement is impossible due, for instance, to the shock experienced by the child, it must be postponed.

However, in spite of the exceptional circumstances of the present case, involving a custodian who felt entitled to override at every stage the courts' assessment that the access rights were in her child's best interests, the social authorities never recommended and the courts never ordered that at the very least an attempt be made to bring the child to a meeting with the applicant. It is true that any obligation to apply coercion in this area must be limited, given the need to take into account the best interests of the child and his or her rights under Article 8. Nonetheless, the possibility of employing coercive measures cannot be wholly excluded when the child's interests are deemed to coincide with those of the parent who, without enjoying custody, wishes to create a relationship with the child (see Ignaccolo-Zenide cited above , § 106) [2] .

In the present case the child's and the applicant's interests were indeed considered by the courts to coincide up to 29 April 1998, when the access rights were revoked. During more than three years the prevailing view of all authorities had been that the child would benefit from meeting the applicant. What is more, the ongoing reassessment of the child's best interests took place in both civil and enforcement proceedings pending simultaneously before different compositions of the same tribunal but essentially bearing on identical and in part already examined evidence. The applicant was thus required to have constant recourse to a succession of time-consuming and ultimately ineffectual remedies to enforce the access rights granted to his daughter (see the Hokkanen v. Finland judgment , p. 23, § 61). Such a state of affairs effectively set in motion a process which proved to be irreversible: maintaining and enforcing the child's right to meet with the applicant was no longer deemed to be in her best interests, given the lack of any physical interaction between the two (see, mutatis mutandis , the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, pp. 20-21, § 55).

Summing up, it is all but impossible to distinguish this case from Ignaccolo-Zenide . It is true that here the child has never seen the father, whereas in Ignaccolo-Zenide the girls knew (and violently rejected) their mother; it is true that in this case the mother might have had a justified fear of the father, whereas in Ignaccolo-Zenide the father fled the authorities more than the mother; it is true that the courts here approved of only a very limited access to the child, which was not the case in Ignaccolo-Zenide ; and, finally, it is true that at least de facto – although it was not examined as such in this Court – Ignaccolo-Zenide was an abduction case, whereas the present case concerns denial of access.

These differences, however, are not as straightforward as that. That the child here never saw her father was due precisely to the mother's objectionable recalcitrance. To justify the ultimate denial of access on the ground that the access had been illegally denied all along borders on the absurd.

It may be true that the father in the present case is not an ideal person, but since when is personal perfection a precondition to becoming a father or, consequently, to exercising parental rights? To say that he was aggressive and that the mother was afraid of him, in so far as his aggressiveness was a logical consequence of the fact that he has been brutally denied access to his only daughter, is part of the same circular absurdity. Likewise, the Finnish courts' progressively more limited access decisions were a concession to the mother's recalcitrance, made in the hope that perhaps she would be mollified. To claim that this very concession then justifies the ultimately total denial of access is simply not logical.

The distinguishing characteristic of the case we have decided today is that it was the respondent State, by not enforcing its own judgments , which caused the critical change in the decisive fact pattern. The paradoxical and unacceptable net effect of all this was that the mother, who refused to submit to a decision of the court, directly and patently profited from her own wrongdoing.

In human rights litigation it is usually the State which is remiss. And while this is so in this case too, the blame cannot be put squarely on the shoulders of the Finnish State. The dilemma we faced in Ignaccolo-Zenide is reiterated here. While we, too, abhor the use of crude force to intervene in tender human relationships, it is nevertheless true that judicial decisions devoid of enforcement become pathetic recommendations. In the end, moreover, the State's postulating of legal criteria in substantive family law, such as the best interests of the child, means little, unless, procedurally, judicial decisions applying them are consistently respected. Apart from not even attempting to fetch the child, the question remains open whether the Finnish State has done everything possible to protect not only the father's parental rights but first and foremost his daughter's right to meet with him, different court compositions having found this to be in her best interests. We recall that in Ignaccolo-Zenide one of the elements leading this very Court to find a violation of Article 8 was the authorities' failure to take coercive measures against the parent at fault (see paragraph 105 of the judgment cited above). The present case leads us to query whether a parent's refusal to participate in ensuring his or her child's access rights in respect of the other parent should not be regarded as a criminal offence or at least as contempt of court.

In the light of the foregoing and even having regard to the margin of appreciation afforded to the State, we find that the Finnish authorities failed to make the efforts which could reasonably have been expected to enforce the access rights granted in respect of the applicant's daughter. This non-enforcement led to the lack of a fair balance between the various interests involved. Accordingly, we believe, Article 8 has been violated.

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One must constantly keep in mind the original intent of all judicial conflict-resolution, which is to resolve by logic what would otherwise be resolved by arbitrariness, force, etc. The essence of the rule of law is that the logic of private force be replaced by the public force of logic.

To render justice is to enforce the satisfaction of the law-abiding party. This implies that the other party, found not to be in the right, must unconditionally subordinate itself to the ruling of the court. Unless that happens, private arbitrariness has prevailed over the public force of the law. The enforcement of judicial decisions, in other words, is an essential and unchangeable element of the rule of law.

Because the passage of time here retroactively validated the actions of a mother who for years obstinately disregarded any court decision which did not suit her, in the end the legally wrong party profited from her own wrongful behaviour. This goes against the wisdom of a Roman Law maxim: Quod ab initio vitiosum est , tractu tempore convalescere non potest (“What is wrong from the beginning cannot be validated by passage of time”). Of course, the passage of time in all child custody cases is such a fact – which can, in the end, determine what is in the best interests of the child. This is the reason, for example, why the time limits in the Hague Convention on the Civil Aspects of International Child Abduction are measured in weeks, not in months, let alone years. Since it is in the arbitrary power of a parent determined to disregard the decisions of the courts, and who is beatus possidens of the child, to literally generate such a new fact, that is, a new minor premise in the syllogism, clearly, the major premise called “the best interests of the child” will after the passage of years yield the reverse result.

The ancient formula Nemo auditur propriam turpitudinem allegan . (“Nobody should profit from his or her own wrongdoing”) explains even better this recurrent possibility of perversion of justice. It is, therefore, to be regretted that the European Court of Human Rights, especially in view of some of its own precedents, refused to see this issue and, in effect, legalised the obstinate parent's disregard for the rule of law.

[1] . Note by the Registry . The report is obtainable from the Registry.

[2] 1 . In its report in the Hokkanen case the Commission found a fundamental difference between the reunification obligation resulting from the termination of de jure care and the obligation to terminate de facto care based on defiance of law and court orders: although in the latter situation too coercion should be avoided as far as possible so as not to contravene the interests of the child, it is clear that the threshold for enforcing cannot be the same as in the first-mentioned situation. A contrary approach could have the effect of encouraging child abduction as a means of eventually obtaining parental rights and would be incompatible with the rule of law (see the opinion of the Commission appended to the Hokkanen judgment cited above, p. 36, § 134).