CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I agree with my colleagues that the applicant ’ s rights under Article 6 of the Convention have been infringed; however, I am unable to subscribe to the reasoning of the judgment. In my view, it applies the yardstick devised for the purpose of assessing civil proceedings regarding rights having a pecuniary value and ignores the specific features of proceedings in family matters.

2. Any proceedings in which binding decisions are taken should be appropriate to their purpose and object. The fairness of proceedings is to be assessed in the light of their purpose and object (that is, the nature of the question to be decided).

Procedures governing family-law matters, in many legal systems, are completely different from civil procedures pertaining to rights having a pecuniary value. Firstly, in family matters, a court may on certain occasions act of its own motion or upon a motion brought by a State organ. This branch of the law allows exceptions to the principle nemo iudex sine actore . Secondly, the judge is not bound by the principle ne eat iudex ultra petita partium . Thirdly, the parties cannot dispose freely of their family-law claims. The courts, acting of their own motion, have to take into account the best interests of the child. Fourthly, the judge has to adjudicate on the basis of the factual circumstances existing at the time of the decision. He has to take into account the dynamics of family relations and establish the latest developments. Fifthly, the proceedings have to be conducted speedily as delays may cause detrimental effects to the child. The urgency of the situation may justify a departure from certain procedural principles. Sixthly, the court may often issue temporary orders with the purpose of determining urgent questions for a limited period. Such temporary orders may be particularly justified if there are difficulties in establishing the whereabouts of a parent. Seventhly, the principle of res iudicata has a limited practical meaning because judicial decisions pertaining to the child can be changed at any time depending upon the changing circumstances. It is interesting to note in this respect that the German Federal Constitutional Court stated as follows in its order of 5 April 2005, 1 BvR 1664/04, concerning a constitutional complaint against a custody decision of the Naumburg Higher Regional Court in the case of Görgülü :

“For custody proceedings do not admit the plea of res judicata . The care of the minor always has priority over the finality of a decision once taken. An amending decision requires cogent reasons that have a long-term effect on the welfare of the child.”

Finally, parents who have separated and who are engaged in a conflict over the exercise of parental rights should be aware that sooner or later – in the absence of consensus between them – the domestic courts will render decisions concerning their children. It is therefore in their interests to keep the competent authorities informed of their whereabouts. The national legislation may impose such an obligation for the purpose of ensuring the speediness of proceedings concerning the children in such situations.

In this context, procedural justice standards devised for civil litigation concerning rights having a pecuniary value are not applicable as such to proceedings concerning the interests of children. The Court ’ s approach concerning the standards of procedural fairness under Article 6 should be revisited to accommodate the particular characteristics of family law.

3. The majority states the following principle:

“Above all, that presupposes that the person against whom proceedings have been initiated should be informed of that fact (see Dilipak and Karakaya v. Turkey , nos. 7942/05 and 24838/05, § 77, 4 March 2014).”

I note in this respect that the proceedings in the instant case were not proceedings against the applicant. They were proceedings to determine an issue concerning the child in a situation of conflict between the parents.

The majority further expresses the following view:

“The Court reiterates that it decided in the case of Dilipak and Karakaya (cited above, §§ 78 and 80) to draw inspiration from its approach to criminal-law matters and to apply the principles initially developed in respect of criminal trials in absentia to civil proceedings as well.”

In my view, it is not possible to transpose regulations from criminal to family proceedings. Moreover, in many jurisdictions decisions in family matters rendered in the absence of a parent are not regarded as default judgments, and the rules applicable to default judgments do not apply to such decisions.

4. There is no doubt that the domestic-law provisions concerning the summoning of the parties were infringed. As a result, the applicant ’ s right to be heard in proceedings concerning his parental rights was infringed. The breaches of domestic law in this respect are sufficient basis for finding a violation of Article 6 of the Convention.

5. According to my colleagues, the applicant was deprived of an opportunity to have his case re-examined with his participation. I do not share this view. In any event, this question has not been examined by the Court with the required diligence.

The answer to the question whether the applicant had an opportunity to have his case re-examined requires a comprehensive survey of all the procedural possibilities open to the applicant (compare, for instance, the approach adopted in Buchleither v. Germany , no. 20106/13, 28 April 2016). In the instant case the reasoning examines only one issue, namely whether the applicant had a remedy by which to directly challenge the impugned judicial decision. It does not examine whether – given the limited significance of the res iudicata principle in family law – he also had an opportunity to have his rights protected by requesting a new decision on the questions submitted to the domestic courts.

In this respect, the reasoning contains the following assessment:

“25. The Court observes that the applicant ’ s core complaint under Article 8 of the Convention is about the restriction of his parental rights and the loss of contact with his daughter as a result. ... Rather than engaging in purely procedural proceedings complaining about the alleged unfairness of the initial default decisions, the applicant should have applied directly to the Georgian courts for the restoration of his parental rights under Article 1209 of the Civil Code (see paragraph 14 above). The initiation of custody proceedings was also an option for him to regain access to his daughter by requesting contact or visiting rights.

26. For the above reasons, the Court considers that the applicant failed to take adequate steps to secure the exercise of his right of access to his daughter. It therefore accepts the Government ’ s objection as regards the applicant ’ s complaint under Article 8 of the Convention and declares that complaint inadmissible for non ‑ exhaustion of domestic remedies” (emphasis added).

This part of the reasoning clearly establishes that the applicant had available to him remedies by which to have the impugned judicial decisions set aside and replaced by new ones. These remedies are considered effective for the purpose of asserting the rights protected under Article 8 but are completely disregarded for the purpose of assessing the applicant ’ s situation under Article 6. In my view, there is a fundamental contradiction in such an approach.