DISSENTING OPINION OF JUDGE PELLONPÄÄ

I am unable to subscribe to the opinion of the Chamber that there has been a violation of Article 8, both read  alone and in conjunction with Article 14.

I agree with the general principles put forward in paragraph 38 of the Judgment, namely that  “it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned “ and that  “the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues...” Application of these principles to the circumstances of the present case, however,   in my view should not lead to the finding of a violation.

The majority has based the violation of Article 8 on the ground that, in the proceedings concerning the the applicant’s  second request for a right of access, “the District Court should not have been satisfied with hearing  only the child as to her wishes on the matter without having at its disposal psychological expert evidence in order to evaluate the child’s  seemingly firm wishes” (paragraph 43). In the Court’s view, ” the German courts’ failure to order a psychological report on the possibilities of establishing contact between child and the applicant reveals an insufficient involvement of the applicant in the decision-making process” (paragraph 44).  There appears to be no other major criticism of the domestic proceedings.

This is not surprising, as the proceedings prima facie appear to have been in full conformity with the procedural requirements of Article 8 (and even with the requirements of Article 6 which, as a rule, are stricter). Thus, in connection with the first request for visiting arrangements, the competent Judge heard the child  twice. After the second hearing (24 June 1992), in which also the  applicant and the court appointed psychological expert also participated, the applicant withdrew his request.  

In connection with second set of proceedings the District Court Judge again heard the child (15 February 1994), now thirteen years of age, who expressed her firm wish not to see the applicant. In addition, the Court held a hearing with the applicant and the child’s mother (26 April 1994).  The Court in addition took into account comments filed by the Rostock Youth Office both in connection with  these  proceedings and the first set of proceedings, as well as the psychological expert opinion filed in the first proceedings two years earlier. No new expert opinion was ordered by the court.

In June 1994 the Rostock Regional Court dismissed the applicant’s appeal against the District Court’s decision.

I respectfully disagree with the majority’s conclusion that the German courts’ failure to seek a fresh expert opinion in the second set of the proceedings violated Article 8 of the Convention. Considering that the child had by that time reached  the relatively mature age of 13  - a fact duly emphasized by both the District Court and the Regional Court -, the District Court could legitimately rely on the direct impressions received from the meeting with her, as well as on all the other evidence available.  There seems to be nothing indicating why the  Regional Court should have departed from the assessment made by the District Court.  For the European Court of Human Rights to say in these circumstances that the national court should have sought new expert advice (which not even the applicant had apparently requested it to seek), runs  counter to the above-mentioned  principle “that the Court’s task is not to substitute itself for the domestic authorities”.   In the circumstances of the present case the conclusion that “the national authorities overstepped their margin of appreciation” (paragraph 45) amounts to leaving practically no margin of appreciation at all to the domestic courts which, after all, are in a much better position than this Court to make the type of sensitive decisions as the one at issue here.

I also disagree with the conclusion that there has been a violation of Article 14, in conjunction with Article 8. The Chamber attempts to make a distinction between this case and the case of Elsholz v. Germany (cited in paragraph 38 of the present judgment), in which the application of Section 1711 § 2 of the Civil Code “did not appear to have led to a different approach than would have ensued in the case of a divorced couple” (paragraph 49  of the present judgment).

I am not convinced by the alleged distinguishing features. In paragraph 50 it is emphasized “that, in the present case, both the District Court and the Regional Court expressly stated that access could only be granted if in the interest of the child ...” In so far as this appears to be given as a distinguishing element, I note that similar statements are also to be found in the decisions of the District Court and Regional Court in the Elsholz case (see paragraphs 13 and 18 of the Elsholz judgment). According to paragraph 51 of the present judgment the “crucial point is that the courts did not regard contacts between child and natural father prima facie as in the child’s interest, a court decision granting access being the exception to the general statutory rule that the mother determined the child’s relations with the father.” I fail to see that the approach of the domestic courts on this point was in any relevant manner different in Elsholz , in which the District Court stated  that the provisions “concerning the father’s right to personal contact with his child born out of wedlock ... was conceived of as an exemption clause which had to be construed strictly” (paragraph 13 of the Elsholz judgment).    

In the Elsholz case the Court, when coming to its conclusion of a non-violation of Article 14 emphasized that the “risk of the child’s welfare was ... the paramount consideration” (paragraph 60) in the national decisions. Therefore it could  not “be said  ... that a divorced father would have been treated more favourably” (paragraph 61). The interests of the child, however,  seem to have been a paramount consideration in the present case as well. The District Court, for example, strongly emphasized that her mental and psychological well-being  would be endangered if there was any  forced contact between her and  the applicant (see paragraph 17).

Although there may have been some differences between the domestic court decisions in the two cases, those differences in my view were not of such a nature as to justify a violation in one and a non-violation in the other. Like in Elsholz , the present applicant has not shown that, in a parallel situation, a divorced father would have been treated more favourably.

I have also voted against the violation of Article 6. I do recognize that Section 63a of the Act on Non-Contentious Proceedings, as in force at the relevant time (see paragraph 28), was problematic from the point of view of the Convention. In my view the problem was, however, one of discrimination rather than access to court to be analysed under Article 6 alone. Therefore, I would have been able to vote for a violation of Article 6 read in conjunction with Article 14. Indeed, the situation is almost a classic example of discrimination as envisaged in the locus classicus on the subject, the Belgian Linguistic case (judgment of 23 July 1968, Series A, no 6), in which the Court stated :

“to recall a further example [of discrimination].... Article 6 does not compel States to institute a system of appeal courts. A State which does set up such Courts consequently goes beyond its obligations under Article 6. However, it would violate that Article, read in conjunction with Article 14, were it to debar certain persons from these remedies without a legitimate reason while making them available to others in respect of the same type of actions” (p. 33).