DISSENTING OPINION OF JUDGE SAJO

To my regret, I have to dissent in this case in respect of the finding of a violation of Article 8.

In situations where the Convention rights of two right-holders come into conflict, the role of the Court is to satisfy itself that a proper balance has been struck in the case. This means that an appropriate margin of appreciation must be afforded to the domestic authorities to carry out the balancing exercise; the role of the Court is supervisory. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).

This case requires the balancing of the mother’s Article 8 right not to disclose information about a most intimate fact of her life and that of her offspring (the applicant) to know her origins. If this were the only issue in the case I would have no difficulty following the reasoning of the majority. Moreover, only the most compelling reasons are acceptable where a right is denied in all circumstances by a blanket prohibition. However, the legislation, with its absolute ban on the disclosure of information regarding maternity (where the parent has refused such disclosure), reasonably serves Convention rights beyond the scope of Article 8. The protection of anonymity is a measure that serves the right to life of the offspring: in the present case the possibility of giving birth anonymously with an absolute guarantee of anonymity must have allowed the applicant to be born and to be born in circumstances that do not endanger her health and/or the health of the mother. That anonymity is related to the State’s duty to protect the right to life, a right that is the direct emanation of the highest value of the Convention. Contrary to the generally applicable consideration that all Convention rights are, in the abstract, equal, the right to life is recognized as a supreme right. Of course, the right to life is only indirectly protected by the anonymity provision. However, this supremacy is decisive for me in the balancing exercise, which cannot be limited to a conflict between two Article 8 right-holders. I would add that the applicant – contrary to Jäggi v. Switzerland , no. 58757/00, § 44, ECHR 2006 ‑ X and paragraph 67 of the present judgment – did not show particular and lasting concern about her origins, as she waited twenty-three years before bringing her claim before a court. This would be a consideration in the balancing exercise if I were supposed to be doing the actual balancing. However, that is not my duty here. The balancing exercise was carried out by the Italian Constitutional Court in a comparable case (Sentenza no. 425/2005).

“In cases arising from individual applications the Court’s task is not to review the relevant legislation or practice in the abstract; it must as far as possible confine itself, without overlooking the general context, to examining the issues raised by the case before it ... Consequently, the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters” (see S.H. and Others v. Austria [GC], no. 57813/00, § 92, ECHR 2011) of anonymous births. It is not for the Court to review the necessity of the absolute ban that was found constitutional by the Italian legislature, comparing the rights that are protected by the Convention, as long as this measure is not arbitrary and the balancing reasonably takes into consideration all the rights in question. It is true that there is no study on record before us to show that the guarantee of anonymity has indeed reduced the number of abortions; nor do we have data on the sense of relief the guarantee of anonymity gives to mothers. But the measure is certainly not capricious, and many women do actually rely on the guarantees of the system. If the present case were about the genetic markers of the applicant which she needed to know for reasons of health, the case might have ended differently for me, but the case is about the interest of a lady of respectable age whose personal development does not require specific knowledge. The Italian Constitutional Court took into consideration all the relevant aspects of the situation and there is nothing specific in the case that would necessitate a departure from its findings.