DISSENTING OPINION OF JUDGE O’LEARY, PARTIALLY JOINED BY JUDGE GROZEV

1. The majority of the Chamber has voted in favour of a violation of Article 6 § 1 of the Convention in the circumstances of the present case and has found that Article 8 of the Convention, an article on which the applicant also sought to rely, is inapplicable.

2. For the reasons outlined below, I am unable to subscribe to the findings of the majority on either front.

3. Judge Grozev joins me in considering that in the particular circumstances of this case the most appropriate route to review the applicant’s complaints would have been Article 8 of the Convention and that any interference with the applicant’s limited right to private life thereunder was lawful and proportionate.

4. I, in turn, join his concerns regarding the applicability of Article 6 § 1 of the Convention. However, once deemed applicable, I would not have found that article to have been violated in any event for the reasons outlined below.

5. The complaints before the Court arose following the imposition of a contact ban between the applicant, born in 1939, and a mentally disabled young woman, V., born in 1987. With V., the daughter of his former partner, the applicant had fathered a child and sought thereafter to maintain an intimate relationship.

6. The contact ban was issued in the context of guardianship proceedings initiated by the domestic authorities after V. had been placed in residential care and following continued attempts by the applicant to contact her in person and by other means. Those proceedings were designed to establish her best interests and to protect her (see further paragraphs 9-38 of the judgment regarding the proceedings concerning V. and 40-42 for details of German law on guardianship proceedings).

7. Those proceedings followed two sets of criminal proceedings against the applicant in respect of alleged sexual abuse of a person incapable of resistance. Both sets of proceedings were discontinued in the circumstances described in paragraphs 8 and 17-18 of the judgment. In particular, the Regional Court in the second set of proceedings held that, due to the previous assessment of a public prosecutor regarding the impossibility of establishing V.’s incapability of resistance to sexual acts – which assessment the Regional Court found to be erroneous − criminal liability under the provision of the Criminal Code pursuant to which the applicant had been charged could not be established (see paragraph 17 of the judgment). In contrast, that court held that it would have been possible to establish criminal liability for a different form of sexual abuse. However, it was decided that the public interest in prosecuting the applicant, in the view of the circumstances of the case and given ongoing proceedings in relation to the child, could be satisfied by the payment by the applicant and V.’s mother of a fine (ibid.).

8. At issue in the Articles 6 and 8 complaints before this Court are “defence rights” which the applicant claims to possess and to have been violated in the guardianship proceedings relating to V., particularly during that phase of the proceedings which related to the imposition of the contact ban requested by V.’s guardian and guardian ad litem .

9. It is important to stress that in the present case the Court is not called upon to address the rights of a mentally disabled person, but only the applicant’s complaint in relation to the termination of any possibility of his having contact with V. and the decision-making process in that regard. V. is not an applicant before the Court.

10. However, the primary purpose of the domestic proceedings at issue was the protection of V.’s rights and interests. This should not have been forgotten when seeking to respond to the applicant’s complaints. As also clearly demonstrated by the criminal proceedings against the applicant, the domestic authorities were faced with a situation where they were under a positive obligation to protect the rights guaranteed under the Convention of V. While the latter issue is not formally before the Court, any analysis which overlooks the fact that the domestic authorities had to balance conflicting rights under the Convention, risks being one-sided.

11. It is clear that the mere fact of fathering a child is not sufficient to establish family life within the meaning of Article 8 of the Convention. As emphasised by the respondent Government, forced sexual contact cannot bind two people together as a family and enable someone to attract by coercion the protection afforded by Article 8 of the Convention.

12. I agree with the majority that the “family life” which the applicant describes does not attract the protection of Article 8 of the Convention. As regards his reliance on his (and V.’s) relationship with their son, the question of the child’s placement in care and access to him – which the applicant enjoys under German law − is not before the Court. Neither does the applicant have standing to seek to vindicate, directly or indirectly, the rights of V.

13. As regards the “private life” limb of Article 8 of the Convention, the majority deem the latter inapplicable (see §§ 53-58 of the judgment).

14. It is undoubtedly delicate, in the circumstances of the present case, to entertain an Article 8 complaint in relation to a contact ban when a domestic court, albeit discontinuing criminal proceedings under one provision of the Criminal Code, indicates that liability for sexual abuse under another provision might have been established. In addition, the capacity of Article 8 to expand, thereby extending the reach of the Convention, has been repeatedly, and sometimes legitimately, criticised. However, in the present case it should have been possible to examine the applicant’s complaints through the lens of the Court’s existing Article 8 case-law – which has repeatedly held that private life can embrace multiple aspects of a person’s “physical and social identity” (see Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018). By this I do not mean that the applicant could rely on a right to contact with a specific other person, such a right having been found to constitute an element of Article 8 essentially under the family life limb. In addition, I am certainly not suggesting that Article 8 forms the basis for a person such as the applicant to insist on contact with a person where that person does not share the wish for contact. Furthermore, the Court has rightly held that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions, such as, for example, the commission of a criminal offence. However, the difficulty in the present case is that the purpose of the disputed proceedings was precisely to establish whether V. genuinely did not wish to continue contact with the applicant and the domestic courts failed to establish that the applicant had committed a criminal offence. Furthermore, the applicant was not complaining of a loss of reputation but about the effects which the contact ban had on what he regarded as his inner circle and on his right to develop relationships with the outside world, including and specifically V.

15. In my view and that of Judge Grozev, the Chamber should have engaged more with the central applicability question before it – whether the ban affected an aspect of the applicant’s own social identity with the result that his right to a private life under Article 8 of the Convention could have been said to be engaged to this limited extent. The inclusion by the German Act on Procedure in Family matters in proceedings before domestic courts of persons such as the applicant whose rights would be directly affected by decisions taken thereunder seems to constitute recognition of this limited right. The latter could even be described as a “reflexive” right; relating to the applicant and his desired external exercise of his social identity and not as such impinging on V. When concluding that Article 6 § 1 of the Convention was applicable in the instant case – not because the applicant had a “right” to contact under domestic law, but because a State authority imposed an obligation on the applicant to avoid all contact with a given person which, if not respected, would have led to the imposition of a penalty or enforcement detention, the majority has surely identified under Article 6 what the applicant also relied on under Article 8. In my view, the engagement of the latter article of the Convention could have been accepted in these circumstances, without expanding the scope of that article or giving rise to the clearly unacceptable proposition that the applicant was entitled to assert a right to the company of another person, against that person’s will.

16. The fact that V. could have seised the Court relying on a failure by the State to respect its positive obligations under Article 8 in relation to her – whether as a result of inaction, the discontinuance of the criminal proceedings or the proceedings on guardianship –, does not mean that an examination of Article 8 in relation to the applicant’s complaint of a negative interference, in a case arising from the same factual circumstances, had to be excluded at the applicability stage.

17. Given the need to properly delimit, even police, the scope of application of Article 8 of the Convention and the risks associated with exploring a line of reasoning such as that described above, why go down this path?

18. The answer in my view and that of Judge Grozev is to be found in the nature and purpose of the guardianship proceedings, the objectives they pursued, namely the vindication of the rights and interests of V., the procedural means chosen under domestic law to achieve those objectives and the margin of appreciation accorded to the relevant national authorities in relation to proceedings of that nature.

19. As the Court has held, the margin of appreciation will usually be wide if the State is required to strike a balance between competing private and public interests or Convention rights (see Odièvre v. France [GC], no. 42326/98, §§ 44-49, 13 February 2003; and Evans v. the United Kingdom [GC], no. 6339/05, § 77, 10 April 2007) and when, in particular, a choice of means, substantive thresholds and procedures are set up in order to protect vulnerable people.

20. In short, viewing the decision-making process through the lens of Article 8 of the Convention would have ensured that the rights of the absent “party” − V. − remained centre stage. Shifting the focus to Article 6 of the Convention meant, in contrast, that the applicant risked becoming the central if not sole focus of the Court’s assessment. In addition, when assessing the balance struck by the national courts via Article 8 of the Convention, the Court could have emphasised the very limited nature of the private life interest on which he could rely thereunder – namely his own social identity – and the fact that he had no unilateral right to insist on contact with a person like V. The State’s positive duty to protect V. as a vulnerable person from acts of abuse would also have come fully into play.

21. As regards the applicant’s complaint about the domestic court’s decision not to hear him in person, it is important to stress that the District Court, seised of a request to judicially confirm the contact ban adopted by the guardian, invited the applicant, as a person who might be affected by the decision it might adopt, to submit written comments on the guardian’s request for a contact ban within a certain period of time. The applicant, however, did not respond to that invitation (see paragraphs 22 and 24 of the judgment). Neither did he make substantive submissions to that court or request that the District Court hear him personally. In so far as the applicant argued before this Court that he did not understand the District Court’s invitation for him to submit comments, he had been informed of the contact ban by the guardian on 4 September 2012, that is before the District Court began the proceedings examining whether it should be confirmed and he had replied to the guardian’s letter (see paragraph 21 of the judgment). Furthermore, the applicant did not show that he had been unable to seek advice from counsel or request the District Court for further clarification if required.

22. In the appeal proceedings, the applicant was again invited to submit his comments in writing and, with the assistance of legal counsel, he did so. He also sought access to the full case file in the guardianship proceedings concerning V., including highly personal and sensitive data relating to her, and explicitly requested a personal hearing. However, the Regional Court held that in the circumstances of the case, and given the available material, there was no need to hold a hearing in order to decide the case and that the applicant had had sufficient opportunity to be heard by other means (see paragraph 36 of the judgment). Domestic law provided for the possibility of a personal hearing but granted the courts discretion as to whether to hear the applicant in person (see paragraph 43 of the judgment). Such a hearing had to be held only when it was “necessary to ensure a fair legal hearing for the participants”. It is vital, in my view, both for the assessment under Article 8 and any alternative assessment under Article 6 of the Convention to understand that this discretion stemmed from the nature of the guardianship proceedings. As the respondent Government explained, in such cases the domestic courts did not have to resolve a dispute between two parties in an adversarial procedure, but had to assess, throughout guardianship proceedings characterised by the principle of ex officio investigations, whether the contact ban was in accordance with V.’s wishes and best interests. The other basis for the compulsory holding of an in-person hearing was, pursuant to Article 34 § 1(2) of the Act, “when so required by the provisions of this or another statute”. However, the applicant’s arguments in the present case to the effect that the normal provisions of German civil law should have applied have not been endorsed by the domestic courts, the respondent Government’s account of domestic law or by the majority in the Chamber. Article 37 of the Act provides that a court may only support a decision that impacts the rights of a participant based on the facts and evidence that this participant could comment upon. However, in view of the limited (reflexive) Article 8 interest on which the applicant sought to rely, he was provided every opportunity to comment on the facts and evidence on which the judicial decision confirming the contact ban was based.

23. It may be true that the guardian’s role and duties might to some extent have been limited by the right of the applicant as a third person. However, it was surely important to recognise that the latter’s position did not have the same weight in the proceedings as V.’s interests and did not attract or require the same procedural rights. In that capacity, the domestic courts had to ensure primarily that the applicant had sufficient opportunity to present his arguments concerning the contact ban and for those arguments to be taken duly into account. The domestic courts essentially based their decisions on the fact that contact with the applicant would be detrimental to V. This was determined, inter alia, by an assessment the report drafted by the staff of V.’s residential home, the expert opinions and the applicant’s written submissions, which were all in the case file. Moreover, in his reply to the guardian’s letter informing him of his request for a contact ban, the applicant had expressly requested an end to the supply of contraceptive medication to V. The applicant thereby signalled – despite the clear indication of the criminal court of 26 July 2012 that, according to the file, V. had no capacity to resist (see paragraph 15 of the judgment) – that he maintained his claim to a right to involvement in questions concerning V.’s sexuality. In addition, the contact ban was ordered within the framework of the guardianship proceedings in which the District Court (presided over by the same judge) had already personally heard the applicant in September 2010, when V. had initially been placed in care. Against this background, it is difficult to see, as the domestic courts pointed out, how an oral hearing involving the applicant would have broadened the basis of the contact decision. Such a hearing was not necessary in order to safeguard the applicant’s interests. Furthermore, according to the applicant’s submissions before the Court, what he principally sought was “a court hearing for all participants” during which he wished to subject V. and her guardian to questions.

24. Assessing the applicant’s complaint regarding the decision-making process with reference to Article 8 of the Convention, while emphasising the very limited extent to which that article was engaged in the circumstances of the applicant’s case, the Chamber could have concluded that the domestic authorities conducted the proceedings in a manner which correctly ascribed weight to the interests of V. as a particularly vulnerable person, but which at the same time sufficiently respected the applicant’s rights by giving him the possibility to make submissions and by providing him with the relevant parts of the guardianship case file. This would have led to a finding of no violation of Article 8 of the Convention and allowed the Chamber to conclude that there was no need to examine the applicant’s identical complaints separately under Article 6.

25. I refer to the concerns expressed by Judges Yudkivska and Grozev regarding the applicability of Article 6 § 1 of the Convention, which I too would question in the circumstances of this case.

26. Even having concluded that Article 8 of the Convention was inapplicable in the circumstances of the present case, was it necessary for the majority to conclude that Article 6 § 1, once deemed applicable, had been violated due to the failure to hear the applicant in person at the latter stages of the guardianship proceedings in relation to the contact ban?

27. It is true that the Court has held that, in proceedings before a court of first and only instance, the right to a “public hearing” within the meaning of Article 6 § 1 entails an entitlement to an oral hearing unless there are exceptional circumstances that justify dispensing with such a hearing. In addition, in proceedings before two instances, at least one instance must, in general, provide such a hearing if no such exceptional circumstances are at hand ( Fröbrich v. Germany , no. 23621/11, § 34, 16 March 2017; Salomonsson v. Sweden , no. 38978/97, § 36, 12 November 2002). The concept of a fair trial comprises the fundamental right to adversarial proceedings which in turn is linked to the principle of equality of arms.

28. However, merely reciting general principles can often lead to their origins and the reasons for their development to be lost. While the holding of a public hearing constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention, the obligation to hold such a hearing is not absolute (see De Tommaso v. Italy [GC], no. 43395/09, §163, 23 February 2017 and Jussila v. Finland [GC], no. 73053/01, §§ 41-42, ECHR 2006‑XIV). As in all Article 6 § 1 cases, the aim to be achieved is a fair “trial” and when considering whether domestic courts were justified in proceeding without an oral hearing, the Court has to consider “the special features of the proceedings viewed as a whole” (see Axen v. Germany , no. 8273/78, § 28, 8 December 1983).

29. There is no doubt that the decision-making process in relation to the contact ban had to be fair. The applicant, as an affected third party had to have knowledge of and be able to comment on the evidence adduced with a view to his position being known to the courts and in order, if possible, for him to influence their decision. However, there is also no doubt, based on the material before the Court, that the applicant was afforded a reasonable opportunity to present his case and was not placed at a disadvantage vis ‑ Ã ‑ vis another party. Furthermore, as highlighted above, the guardianship proceedings were not run of the mill adversarial proceedings, involving opposing parties which have been the circumstances in which the Court’s case-law on the right to an oral hearing originated and developed. The majority judgment rightly asserts the importance of that right but applies the case-law in absolute terms. In doing so, little regard was paid to the careful assessment by the domestic courts of what the fairness of the concrete proceedings demanded.

30. In Vilho Eskelinen and Others v. Finland (no. 63235/00, §§ 72-75, 19 April 2007), regarding admittedly very different proceedings, the Court found no violation of Article 6 § 1. The applicants had not been denied the possibility of requesting an oral hearing but it was for the courts to decide if one was necessary. The administrative courts had given the question consideration and provided reasons for their refusal. Since the applicants in that case had been given ample opportunity to put forward their case in writing and to comment on the submissions of the other party, the Court found that the requirements of fairness had been complied with. The strict approach by the majority in this case is not born out by other examples from the Court’s case-law either. While it is true that the Court has stressed the exceptional character of the circumstances that may justify dispensing with an oral hearing, it has also stressed that this “does not mean that refusing to hold an oral hearing may be justified only in rare cases” ( Miller v. Sweden , no. 55853/00, § 29, 8 February 2005). In addition, the Court has applied a less strict standard if an oral hearing has been waived at first instance and requested only on appeal (see the authorities cited ibid, § 31).

31. In the present case, the reasons already rehearsed above for finding no violation of Article 8 of the Convention, if applicable, as regards the impugned decision-making process, should have resurfaced under Article 6 once deemed applicable. However, as indicated previously, they were not allowed to do so. Viewing the case before the Court through the lens of Article 6 meant the applicant’s right to be heard took centre stage because pursuant to this article he was the “victim”, the “litigant”, the “party” whose rights were at issue. V. was thus largely forgotten, as was the nature and purpose of the proceedings in which her guardian, guardian ad litem , the District and Regional Court were all engaged. As indicated previously, the discretion of the domestic courts stemmed from the fact that they did not have to resolve a dispute between two parties in an adversarial procedure, but had to assess, throughout guardianship proceedings characterised by the principle of ex officio investigations, whether the contact ban was in accordance with V.’s wishes and best interests. If Article 6 of the Convention was to be the preferred route to assess the applicant’s complaint, it was essential that the Chamber take into account the particular background and nature of the proceedings at issue against which the domestic courts’ decision not to hear the applicant in personam had to been seen.

32. What is also forgotten in the analysis under Article 6 is that, as explained above, the applicant was invited to submit written comments on the guardian’s request for a contact ban within a certain period of time. He did not do so; nor did he request the District Court to hear him personally. If this was not a waiver, with consequences for his subsequent request for an oral hearing at the appellate stage, the majority should have been explained why. In addition, the applicant had been heard, at an earlier stage in the guardianship proceedings, by the same judge and he had maintained, throughout, his insistence on V. not being prescribed contraception, a position which was clearly at odds with the assessment of V.’s capability/ability to resist by the Regional Court when discontinuing the second set of criminal proceedings against the applicant. In such circumstances, and given the evidence on which the contact ban was based, it is difficult to understand what issues relating to the credibility of the applicant remained to be resolved.

33. The overarching principle of fairness embodied in Article 6 § 1 of the Convention is the key consideration and, in my view, it was respected. The majority allowed themselves to be swayed by the applicant’s waving of the “red card” of credibility and in the process transformed a right to an oral hearing, where necessary, in adversarial proceedings, into an absolute right in proceedings of a distinct and particular nature. It may have been preferable for the Regional Court to have heard the applicant in-person, if only to avoid the risk of Strasbourg proceedings. However, their decision not to do so was reasoned and clearly not arbitrary and it should, in the circumstances of this case, not have attracted the liability of the respondent State before an international court.

34. It is difficult not to avoid the impression in the circumstances of the present case that the wrong conclusion has been reached in the wrong case involving the wrong applicant.