PARTLY DISSENTING OPINION OF JUDGE MARUSTE

I understand and can accept the formal approach adopted by the majority but nevertheless I voted against finding a violation of Article 8 for the following reasons.

It seems to me that the solution of this case goes against the very purpose and content of a case like this. It is true that the requirements of family life in terms of the relationship between children and divorced or separated parents are complicated and delicate. It is also true that in practice the Strasbourg institutions have been very cautious in reviewing decisions of national bodies. Nevertheless, I think that not only parents but also children should benefit from Article 8. I would go further: they are and should be the first beneficiaries where the interests of their parents are in conflict and they are mature enough to express clearly their own preferences.

Having regard to the United Nations Convention on the Rights of the Child and in particular Article 4, which requires States Parties to undertake all appropriate measures for the implementation of the rights recognised in the said Convention, the rights and best interests of children should be promoted. To that end, children should have the opportunity to exercise their rights, in particular in family proceedings affecting them. Due weight should also be given to children's views (see the European Convention on the Exercise of Children's Rights, European Treaty Series no. 160). Consequently, where parents' interests conflict, the views and preferences of children must be properly heard and taken into account in proceedings and in the making of decisions concerning them.

It is clear from the case file that the children have been living for a long time with their father. From the standpoint of the best interests of the child, it is not of decisive importance under what circumstances that came about or what role in that situation was played by each of their parents or by the public authorities. It is also clear that the children in the instant case expressly preferred to live with their father; and their preference must have been taken into account. I much regret that this circumstance was disregarded both in the domestic and in the foreign judicial proceedings, and enforcing an old judicial decision against the will of those who were the subjects of that decision comes close to doing violence.

Secondly, I am of the opinion that the procedural miscarriages and delays that occurred come within the ambit of Article 6 of the Convention rather than of Article 8.

PARTLY DISSENTING OPINION OF JUDGE DICULESCU-ÅžOVA

(Translation)

Having regard to the circumstances of the case, I disagree with the way in which the Court applied Article 41 of the Convention.

The applicant sought compensation for non-pecuniary damage resulting from the fact that it had been impossible for her to exercise her parental rights for nine years.

Yet it is a fact which cannot be disputed by the applicant that in 1989 she renounced her parental rights (see paragraph 10 of the judgment ) for financial and tax reasons.

It is also a fact which she cannot dispute that from 1989 to the end of 1994 there was no family life between her and her daughters, for lack of any relations between them.

As the teenagers' intolerance and rejection of their mother have only increased, it has become very difficult for the Romanian authorities to comply with the letter of Article 8 of the Convention.

The Court considered that the positive obligations provided for in that Article in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

The respondent State, however, has complied with the Hague Convention and has consequently respected the children's interests, thereby ensuring that they are not traumatised.

That being so, and in view, firstly, of the fact that the conflict and the alleged non-pecuniary damage originated in the stance taken up by the mother in 1989, secondly, of the fact that for five years the girls were outside the territory and jurisdiction of the respondent State although the sum sought under the head of non-pecuniary damage also covered that period, and, thirdly, of the respondent State's position in this conflict at this stage, I consider that the finding of a violation of Article 8 of the Convention would have represented sufficient satisfaction for non-pecuniary damage in this case.

As regards the expenses, I judge that the sum of 40,000 French francs awarded by the Court for the fees claimed by the French lawyer who represented the applicant at Strasbourg is excessive in relation to the work done (memorial and oral address), especially as no fee note in which the sum was broken down was produced to the Court.

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