PARTLY DISSENTING OPINION OF JUDGE VAJIĆ

1. Unfortunately, in view of the Court’s judgment in Elsholz v. Germany (cited in paragraph 34 of the present judgment) I am unable to share the opinion of the majority that there has been a violation of Article 8 in conjunction with Article 14 of the Convention in the present case.

I agree with the views which Judge Pellonpää has expressed in his dissenting opinion.

2. I have with some hesitation voted with the majority in favour of a finding that the applicant’s rights under Article 6 of the Convention were violated in the present case.

I see considerable force in the view of Judge Pellonpää that the problem that raises Section 63a of the Act on Non-Contentious Proceedings, as in force at the relevant time (see paragraph 306) is one of discrimination rather than access to court and could therefore have been dealt with under Article 6 read in conjunction with Article 14.

I accept, however, that the problem can also be looked at as one of  unreasonable limitation on access to court. In other words, the exclusion of a general right of a further appeal by operation of law (in the version of the law in force at the relevant time), limited the applicant’s right of access to court to such an extent that it amounted to a violation of Article 6 of the Convention.

PARTLY DISSENTING OPINION OF JUDGE PELLONPÄÄ

While I agree with the conclusion that there has been no violation of Article 8 alone in this case, I am unable to subscribe to the opinion of the Chamber that there has been a violation of Article 14 taken together with Article 8.

The Chamber attempts to make a distinction between this case and the case of Elsholz v. Germany (cited in paragraph 34 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 51 of the present judgment).

I am not convinced  by the alleged distinguishing features. In paragraph 52 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 feature, I note that similar statements are also to be found in the decisions of the District Court and the Regional Court in the Elsholz case (see paragraphs 13 and 18 of the Elsholz judgment). According to paragraph 53 of the present judgment the “crucial point is that the courts did not regard contact 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 child’s interests, however, seem to have been an equally paramount consideration in the present case. Thus both the District Court and the Regional Court very much emphasized the particular vulnerability and sensitivity of the child and the  dangers inherent in any forced contact between her and the applicant. Contrary to what the majority appears to suggest, I do not consider “the Regional Court’s argument that, even assuming that J. had been influenced by her mother, such influence could not justify to force her to have contacts with the applicant” (paragraph 53) as any particular proof of discrimination. To me this seems to be just another example of the paramount importance given to the child’s interests, there being nothing indicating that in a comparable situation concerning a divorced father a different approach would have been taken.

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 30), 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).