03/02/2020 FURST-PFEIFER v. AUSTRIA - 33677/10 (No violation of Article 8 - Right to respect for private and family life (Article 8-1 : Respect for priva… Marialena Tsirli Registrar András Sajó President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) Separate opinion of Judge Zupančič; (b) Joint opinion of Judges Wojtyczek and Kūris; (c) Separate opinion of Judge Motoc. A.S. M.T. CONCURRING OPINION OF JUDGE ZUPANČIČ I agree with the outcome in the present case. However, I consider that the judgment would have greater advisory force were the facts qualified in another manner (qualification juridique). Given that the Court is the master of the characterisation to be given in law in its own cases, it could have reclassified the case. 1. In terms of the facts as presented in the judgment, we have a situation in which serious doubts were raised as to the competence of a court-appointed psychological expert (psychiatrist) who had rendered advice before the local courts in thousands of cases concerning child custody issues and similar questions. 2. There can be no doubt, therefore, as to the public relevance of the issue in this case, that is, as to the question of psychological fitness, which was also required by section 2 (2) of the Austrian Federal Act on the Certifying and Declaration on Oath of Experts and Interpreters (see paragraph 25 of the judgment). Indeed, at the origin of this entire problem lies the question of whether the competent Austrian authorities ought to have examined the applicant’s “psychological fitness” ab initio, while she was under consideration for appointment as a certified court expert. If this had been done, we would not be facing the situation currently before us. 3. The applicant has been registered as a court-appointed psychological expert since 2000; she has provided expert advice in custody, contact-rights and related disputes and on the public care of children, including in cases of alleged child abuse. 4. Seven years before that, in 1993, the applicant was diagnosed as described in the first paragraph of the quoted article (see paragraph 8 of the judgment). Subsequently, according to the same article, the veracity of which has been confirmed, the applicant assessed over 3,000 married couples in custodyrelated disputes. 5. It is worth mentioning here that all of these cases were dealt with in camera; in other words, the public was generally not permitted to be present and the press was generally not allowed to report on these proceedings. As we know, the public functioning of the courts has as its precise purpose to permit anomalies to be made public as soon as they are detected. It is not apparent in how many of the abovementioned 3,000 cases the psychological expert’s intervention was, or was not, dysfunctional. Given the secrecy of these proceedings, the publication of the incriminated article was perhaps the only way to alert the public and the authorities to the potential problem. As we shall see, the aim of the article was “whistleblowing”, especially since other possible avenues were apparently not available. 6. What follows is a quote from the case of Heinisch v. Germany (no. 28274/08, ECHR 2011 (extracts)) dealing with the question of “whistleblowing”: www.bailii.org/eu/cases/ECHR/2016/431.html 10/23