PARTLY DISSENTING OPINION OF JUDGE YUDKIVSKA

1. I voted together with my esteemed colleagues for the inapplicability of Article 8 in the present case. As I am convinced that Article 6 is likewise inapplicable, I voted against point 1 of the operative provisions.

2. The issue at stake here is whether there is a “civil right” for a 70-year-old man to seek contact with someone whose intellectual development corresponds to that of a four-year-old child and whom he sexually abused in the past. As the majority found under Article 8, the applicant did not have a right to establish a relationship with V., who was his victim. The right to private life could not be engaged as she had to be protected from his unlawful behaviour, which had been proven to be detrimental for her (see paragraph 54 of the judgment).

3. The applicant’s intention to continue a relationship with V. was thus a desire to continue to abuse her. This kind of illegal intent, by definition, cannot be protected by the Convention. It clearly falls outside the scope of Article 8, and cannot fall within the scope of Article 6 – it is simply not a “right”.

4. This was unequivocally stated by the District Court, which held that “the applicant’s alleged right to contact with V. lacked any basis in the codified law, because that law provided contact rights only with regard to minors” (see paragraph 28 of the judgment).

5. This Court has held many times that Article 6 § 1 does not guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005 ‑ X). The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see Masson and Van Zon v. the Netherlands , 28 September 1995, § 49, Series A no. 327-A).

6. In the present case the applicant claims to be entitled not to have what he regards as unjustified contact bans imposed on him. In his submissions before the Court he referred to section 1908i § 1, first sentence, read in conjunction with section 1632 § 2 of the German Civil Code. However, the latter provision provides as follows: “The care of the child also encompasses the right to determine contact in respect of the child, including with effect for and against third parties”. It is clear that this provision refers to contact, and the right to determine contact, with a child. V. was not a child, and the applicant would therefore have no right to contact. The majority’s statement in paragraph 67 to the effect that “a person may have no right to contact with another person, without, however, them being subject to a prohibition imposed by a State authority of all forms of contact with that person” appears to be a mere linguistic balancing act which does not change the substance of the issue before the domestic courts. If the applicant has no right to contact with V. – which is the case as V. is not a child and therefore the applicant’s right to contact with her has no legal basis under domestic law – then he is not entitled to have any form of contact with her; hence there is no civil right at stake.

7. Equally, I cannot subscribe to the majority’s conclusion that there is “a ‘dispute’ over an ‘ obligation ’ to respect the contact ban within the meaning of Article 6 § 1” (see paragraph 68 of the judgment). In my view, this is legally wrong – if there is no “right” to have any contact, an interference with that right cannot create a civil obligation within the meaning of Article 6. Contrary to the majority’s suggestion, the mere fact of an interference by a State authority with the applicant’s desire to visit V. cannot create a civil obligation not to contact where there is no corresponding civil right to contact (see, mutatis mutandis , Mackay & BBC Scotland v. the United Kingdom , no. 10734/05, § 22, 7 December 2010). A possible subsequent fine which could be imposed on the applicant for failure to comply with the contact ban, to which the majority refer, would be the subject of separate proceedings in which it might be regarded as a punishment but not, in any event, as a civil obligation.

8. As has also been reiterated on a number of occasions, this Court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law (see Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012). I fail to see these strong reasons in the present case. On the contrary, I believe that in this case, given a tragic story of abuse, there are good reasons not to depart from the conclusions reached by the national courts.

9. I find it appropriate to quote Milan Kundera, who put it as follows in his novel “Immortality”:

“...the more the fight for human rights gains in popularity, the more it loses any concrete content, becoming a kind of universal stance of everyone toward everything, the world has become man’s rights and everything in it has become a right: the desire for love the right to love, the desire for rest the right to rest, the desire for friendship the right to friendship, the desire to exceed the speed limit the right to exceed the speed limit, the desire for happiness the right to happiness, the desire to publish a book the right to publish a book, the desire to shout in the street in the middle of the night the right to shout in the street.”

10. There is a mistaken impression that any desire on the part of a human being can be viewed and resolved in terms of human rights. The applicant, applying to us, framed his interest in having relations with a disabled person, whom he merely used as a sexual toy, as his human right; he thus claims to be entitled to a fair trial in the determination of this “right”. However, the Convention cannot be interpreted as an inexhaustible source of different privileges which were never intended to be guaranteed. Any attempt to uphold the applicant’s position would diminish the value of what is supposed to be a “fundamental right” also when it comes to the procedural rights guaranteed by Article 6 for the “determination of civil rights and obligations”.

11. I am thus of the opinion that the applicant’s complaint under Article 6 § 1 is incompatible ratione materiae with the provisions of the Convention.