DISSENTING OPINION OF JUDGE MYJER

In non-borderline cases it is not unwise for a judge to reconsider the reasoning behind his provisional opinion the moment it transpires that all his colleagues in a Chamber are in strong favour of the opposite outcome.

Still, in this case I am deeply convinced that the right outcome would have been a finding of no violation.

From my work in the past as a national judge I remember quite a few cases where, after a divorce or even during the divorce proceedings, allegations of sexual abuse were used by one of the parties to deprive the other party of visiting rights or even of any contact at all.

I know how difficult these cases are. If what is alleged is true, immediate measures are required; if it is not true then the deepest harm can be done both to the accused parent and to the child.

So yes, the national authorities need to take such allegations seriously and need to investigate them immediately and diligently, in the hope of ascertaining what actually happened.

However, especially when conflicting witness testimonies exist and when there is insufficient physical evidence (or when different explanations are possible in regard to the physical evidence), it is sometimes impossible to establish the “real” truth.

As far as I can see, the Romanian authorities took the case seriously and in general acted diligently.

In paragraphs 114 and 115, the Court correctly notes how much was done by the authorities and how difficult it apparently was to find the truth. I add to this that just how “desperate” the authorities were to find the truth is evident from the fact that they went to the rather unusual lengths of using a polygraph.

However, then the reasoning in the judgment changes. In paragraph 116 the Court indicates what the authorities should have done in addition. I have great objections against that kind of reasoning, unless there is a situation in which it is very clear that the authorities have intentionally left out the most obvious investigative measures. That seems not to have been the case here. To me it is wrong that our Court indicates in detail what additional steps it thinks the authorities should have taken. That is acting as a fourth instance in a situation in which – unlike the national authorities – we did not even have the benefit of direct contact with the parties concerned.