SEPARATE OPINION OF JUDGE SAJÓ

I concur in the judgment: the national authorities did not take proper measures to enable the applicant, a deaf and mute person, to have proper contacts with his son. I regret that the Court found it unnecessary to examine the complaint under Article 14 in conjunction with Article 8 of the Convention. The applicant is a disabled person and the disability was crucial in the problem that the Court had to deal with. The domestic authorities treated the disabled person as equal to people without the impairment. The rights of the disabled cannot be effectively protected without acknowledging the positive obligation of the State to provide a differentiated treatment.

CONCURRING OPINION OF JUDGE MOTOC

1. The Court concludes that there has been a violation of Article 8 of the Convention, the authorities having failed to adequately secure the applicant ’ s right to respect for his family life as regards his right to effective contact with his son. In the Chamber ’ s view, the domestic courts could have envisaged additional measures, such as expert evidence from specialists familiar with the problems faced by persons suffering from a hearing impairment, notably measures that would have assisted the applicant in overcoming the barriers arising from his disability (see paragraph 95). While I agree with the majority findings in respect of the violation of Article 8, I regret that the Chamber has not taken into account the discrimination against the applicant regarding his enjoyment of the rights and freedoms set forth in the Convention, that discrimination being based on his disability.

2. Disability is an evolving concept and disabilities result from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others. The attitudinal and environmental barriers, not the physical impairment, prevent people with disabilities from enjoying full human rights; for people with a hearing impairment the major barrier is lack of recognition, acceptance and use of sign language in all areas of life, and lack of respect for the cultural and linguistic identity of persons with a hearing impairment.

3. In paragraph 104 of the judgment the Chamber states that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention, read in conjunction with Article 8 of the Convention (see, for a similar conclusion, Schneider v. Germany , no. 17080/07 , § 108, 15 September 2011 , or A.K. and L. v. Croatia , no. 37956/11 , § 94, 8 January 2013 ). In my view, the Court should have analysed more thoroughly whether the threshold required for a separate evaluation of whether the applicant suffered discrimination in his enjoyment of the rights and freedoms set forth in the Convention was reached.

4. It is well-established in the Court ’ s case-law that Article 14 has no autonomous meaning, but can be invoked only in conjunction with another Convention guarantee. It is entirely true that the discriminatory nature of the State action has not been sufficiently addressed by the Court. This case is also an illustration of an approach by the Court which has been criticised by legal commentators [1] and separate opinions. [2] The case of Kacper Nowakowski v. Poland is an illustration of the Court ’ s practice of automatically absorbing Article 14 within the scope of the substantive right with which it must be invoked. In this connection the finding of a violation of Article 8 is a partial answer to the applicant ’ s complaint. In this respect we can quote Marguerite Yourcenar in How Wang-Fô was saved : “ Ling in despair looked smiling at his master , which for him was a gentler way of crying.”

Inadequate response by the domestic courts to the applicant ’ s disability

5. The domestic courts left aside the question of the effect that the applicant ’ s disability and the language barrier might have had in his communication with his son, and also whether the disability played an essential role.

Proceedings concerning a change in contact arrangements

6. The District Court heard evidence from the RODK experts, who admitted that they did not have specialised methods of examining deaf people. The major obstacle in this respect was the conflict between the parents. An additional obstacle, and an objective one, was the applicant ’ s disability (see paragraph 22).The Białystok District Court dismissed Mr Kacper Nowakowski ’ s application for a change to the contact arrangement. While noting, among other elements, the communication problem, with the applicant using mostly sign language while the child communicated only orally, the Court stated that the mother ’ s presence was necessary for the child ’ s security during the meetings and disregarded the possibility of the presence of the paternal grandmother.

Proceedings concerning parental authority

7. The District Court considered that it was justifiable to restrict the applicant ’ s parental authority and limit it only to matters concerning the child ’ s education. The Court also found that communication with the applicant was limited on account of his disability and that the mother was aware of this. The District Court found no reasons to oblige the mother to undergo family therapy (see paragraph 44). The Białystok Regional Court ruled that the communication barrier constituted an objective obstacle to relations between the applicant and his son and that taking it into account could not be considered a form of discrimination against the applicant (see paragraph 46).

In my view, the domestic courts should have done more to avoid stereotypes in respect of persons with disabilities, and therefore should have addressed in a more careful and balanced way the situation of the applicant, who was isolated because of his disability but also studied and worked.

Disability based on hearing impairment and discrimination

8. The national authorities mentioned the disability of the applicant and his family, including the child. However, in my view, neither the national authorities nor our Court have analysed the matter in depth or addressed the question of the communication barrier between the applicant and his son.

9. The Convention on the Rights of Persons with D isabilities (“the CRPD”) sets out the most important principles for the protection of the human rights of disabled persons. Some of the principles are: “respect for inherent dignity, individual autonomy including the freedom to make one ’ s own choices” (3 (a)); “full and effecti ve participation in society” (3 (c)); “respect for difference and acceptance of persons with disabilities as part of human diversity and humanity” (3 (d)); and “respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities” (3 (g)). Respect for difference, the right to preserve identities, and acceptance of deaf people and sign languages as part of human diversity and humanity imply that the recognition of sign language is inseparable from the recognition and acceptance of deaf people ’ s cultural and linguistic identity. The CRPD also recognises that culture (principle (d), Article 30), identity (principle (h), Articles 24 and 30) and language (Articles 2, 21 and 24) constitute an inseparable triangle.

10. The definition of communication in Article 2 “includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology”. The definition of language includes “spoken and signed languages and other forms of non-spoken languages” (Article 2). Thus, sign languages are included in all the Articles that mention “communication” or “language”. The CRPD provides a powerful tool to enhance the human rights of people with disabilities, and the above-mentioned Articles highlight the basic factors for protecting the human rights of deaf people [3] .

11. In my view, the communication barrier was a fundamental aspect which could have led to a finding of discrimination if it had been properly addressed by the national authorities and by our Court. It is true that all the members of the family suffer from a hearing impairment, but the applicant is the only one who communicates by sign language. It is very difficult to imagine how a small child could feel at ease with a parent if that child is not also taught the parent ’ s “language”. It is essential for persons with a hearing disability, as well as for other disabled persons who communicate by non ‑ spoken languages, that their children are also taught to communicate with them. The domestic authorities should have obliged the mother, A.N., not only to receive family therapy but also to make all efforts to ensure that the child could learn the sign language in order to communicate with his father.

[1] . J. Small, Structure and Substance: Developing a Practical and Effective Prohibition on Discrimination under the European Convention on Human Rights (2003) 6, European Journal of Discrimination and the Law , at p. 47; Gerards, The Application of Article 14 ECHR by the European Court of Human Rights , in Chopin and Niessen (eds), The Development of Legal Instruments to Combat Racism in a Diverse Europe (Leiden/Boston: Martinus Nijhoff Publishers, 2004) 3; R. Wintemute, Within the Ambit: How Big is the “Gap” in Article 14 European Convention on Human Rights?, 2004; A. Baker, The Enjoyment of Rights and Freedoms: A New Conception of the ‘Ambit’ under Article 14 ECHR (2006) 69 Modern Law Review, at p. 714 .

[2] . See Dissenting opinion of Judge Keller in Koncherov and Sergheyeva v. Russia , no. 16899/13, 29 March 2016.

[3] . A. Lawson (eds) , Disability rights in Europe: From Theory to Practice , 2005 .