DISSENTING OPINION OF JUDGE HAJIYEV, JOINED BY JUDGES VAJIĆ AND STEINER

To our regret, we are unable to share the opinion of the majority of the Chamber that there has not been, in the present case, a violation of Article 8 of the Convention taken in conjunction with Article 14.

The majority in the Chamber rely on the reasoning set out by the domestic courts which, in their opinion, was mainly based on the interests of the children and not on their mother ' s being a member of the Jehovah ' s Witnesses.

In our opinion, however, the national courts ' judgments do not provide sufficient justification for such an unambiguous conclusion. On the contrary, we are of the opinion that, as in the Hoffmann v. Austria ( no. 12875/87 ) and Palau and Martinez v. France ( no. 64927/01 ) judgments , there has been a difference in treatment on the ground of religious convictions, based on the mother ' s religious practices as a member of the Jehovah ' s Witnesses. Our conclusion is supported by the tone and phrasing of the considerations regarding the practical consequences of the applicant ' s religion, whereas the requirement of a tolerant society is to respect the religious convictions of the mother that may accordingly affect her children ' s education. Moreover, the domestic decisions did not take into account all the circumstances of the case, especially those relating to the upbringing of the children , but mainly concentrated on the specific effects of the mother ' s religious practices upon their daily life ( see paragraphs 23 and 25).

In this connection it should also be noted that the domestic courts did not take into consideration the age of the children, in particular that of the four-year-old daughter who should have stayed with her mother and should not have been removed from her unless compelling evidence of grave harm to the child was proven. Further, they did not balance properly the interests of both parents before arriving at their decision. For instance, they did not refer to any fact that would show the mother generally to be unfit to bring up her children: no complaint of any kind was ever raised about the parenting and educational skills of the mother (who is a qualified teacher), or questioning whether she was a loving and caring mother capable of bringing up her children, or claiming that she had neglected her children. In addition, the fact that the father is a seaman who is absent for half the year, or that before the divorce, between June 2000 and July 2001, he had failed systematically to provide financial support for the upbringing of the children so that on 26 April 2001 the court had had to order the husband to pay such child support, was not examined by the courts.

In this regard w e also wish to underline the significance of the Supreme Court ' s dissenting judge ' s opinion about the failure to investigate the circumstances specified in domestic law.

Thus, the national courts mainly balanced the financial situation of the father and the housing conditions he was providing to the children, on the one hand, and the mother ' s religious activities of which the family and villagers disapproved, on the other. Therefore, even if there are no direct negative declarations about the Jehovah ' s Witnesses to be found in the national courts ' judgments, the arguments concerning the implications of the applicant ' s religious affiliation on the children ' s upbringing suggest that the case might have been decided differently had it not been for the applicant ' s religion (see mutatis mutandis , Hoffmann, § 33 ) .

We are therefore of the opinion that there was a difference in treatment and that the difference was based on religion and was not justified. Thus such a decision interfered in a discriminatory way with the maternal rights and obligations of the applicant.

For these reasons we, unlike the majority, were in favour of finding a violation of Article 8 of the Convention taken in conjunction with Article 14.