AS TO THE ADMISSIBILITY OF
Application No. 15070/89
by Alecos MODINOS
against Cyprus
The European Commission of Human Rights sitting in private
on 6 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 May 1989
by Alecos Modinos against Cyprus and registered on 31 May 1989
under file No. 15070/89;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the written observations submitted by the
respondent Government on 17 January 1990;
Having regard to the written observations in reply submitted
by the applicant on 6 April 1990;
Having regard to the parties' oral submissions at the hearing
on 6 December 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows:
The applicant is a Cypriot citizen, born in 1933. He is an
architect, residing in Nicosia. In the proceedings before the
Commission the applicant is represented by Mr. Achilles Dimitriades,
a lawyer practising in Nicosia.
The applicant is a homosexual and the president of the
"Liberation Movement of Homosexuals in Cyprus".
In a number of letters addressed to the President of the
Republic of Cyprus, to the President of the Parliament and to the
Minister of Justice between June 1988 and February 1989, the applicant
requested that legislation in Cyprus prohibiting male homosexual
activity be amended. No answer was given to his requests.
Sections 171, 172 and 173 of the Criminal Code of Cyprus
provide as follows:
"171. Any person who -
(a) has carnal knowledge of any person against the order
of nature; or
(b) permits a male person to have carnal knowledge of him
against the order of nature, is guilty of a felony and
is liable to imprisonment for five years.
172. Any person who with violence commits either of the
offences specified in the last preceding Section is
guilty of a felony and liable to imprisonment for
fourteen years.
173. Any person who attempts to commit either of the offences
specified in Section 171 is guilty of a felony and is
liable to imprisonment for three years, and if the attempt
is accompanied with violence he is liable to imprisonment
for seven years."
Article 15 of the Constitution of Cyprus reads as follows:
"1. Every person has the right to respect for his private and
family life.
2. There shall be no interference with the exercise of this
right except such as in accordance with the law and is necessary
only in the interests of the security of the Republic or the
constitutional order or the public safety or the public order or
the public health or the public morals or for the protection of
the rights and liberties guaranteed by this Constitution to any
person."
In a decision of 8 June 1982 (Yiannakis Panayiotou Costa v.
the Republic) the Supreme Court of Cyprus examined the question
of the compatibility of the above provisions with Article 15 of
the Constitution of Cyprus, Article 8 of the Convention and the
jurisprudence of the European Court of Human Rights. The Supreme
Court held the following:
"In ascertaining the nature and scope of morals and the
degree of the necessity commensurate to their protection, the
jurisprudence of the European Court and the European Commission
of Human Rights has already held that the conception of morals
changes from time to time and from place to place, and that there
is no uniform European conception of morals; that, furthermore,
it has been held that state authorities of each country are in a
better position than an international judge, to give an opinion
as to the prevailing standards of morals in their country; in
view of these principles this Court has decided not to follow the
majority view in the Dudgeon case, but to adopt the dissenting
opinion of Judge Zekia, because it is convinced that it is
entitled to apply the Convention and interpret the corresponding
provisions of the Constitution in the light of its assessment of
the present social and moral standards in this country;
therefore, in the light of the aforesaid principles and viewing
the Cypriot realities, this Court is not prepared to come to the
conclusion that Section 171 (b) of our Criminal Code, as it
stands, violates either the Convention or the Constitution, and
that it is unnecessary for the protection of morals in our country.
By adopting the dissenting opinion of Judge Zekia this
Court should not be taken as departing from its declared attitude
that for the interpretation of provisions of the Convention,
domestic tribunals should turn to the interpretation given by the
international organs entrusted with the supervision of its
application, namely, the European Court and the European
Commission of Human Rights."
COMPLAINTS
The applicant complains that the maintenance in force of
legislation prohibiting male homosexual activity constitutes a
continuous interference with his right to respect for his private
life. He refers to the case-law of the European Court of Human Rights
(Dudgeon judgment of 22 October 1981, Series A no. 45; Norris
judgment of 26 October 1988, Series A no. 142) and invokes Article 8
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 May 1989 and registered
on 31 May 1989.
On 2 October 1989, the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits of
the application before 8 December 1989.
After having obtained an extension of the above time-limit,
the Government submitted their observations on 17 January 1990.
The applicant submitted observations in reply on 6 April 1990.
On 8 June 1990 the Commission decided to invite the parties to
appear before it at a hearing on the admissibility and merits of the
application.
The hearing was held on 6 December 1990. At the hearing the
parties were represented as follows:
For the Government
Mr. Michael A. TRIANTAFYLLIDES Attorney General of the Republic, Agent
Mr. Rallis GAVRIELIDES Senior Counsel of the Republic, counsel
Mrs. Leda KOURSOUMBA Senior Counsel of the Republic, counsel
Miss Daphne PAPADOPOULOU Counsel of the Republic, counsel
Mrs. Anny CARIOLOU Administrative Officer,
Ministry of Justice, adviser
For the applicant
Mr. Achilleas DEMETRIADES Barrister-at-law,
representative of the Applicant
Mr. Lellos DEMETRIADES Barrister-at-law, counsel
The applicant was present at the hearing.
THE LAW
The applicant complains that the maintenance in force of
legislation prohibiting male homosexual activity constitutes an
unjustified continuing interference with his right to respect for
private life. He invokes Article 8 (Art. 8) of the Convention which
reads as follows:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Government first submit that the applicant cannot claim to
be a victim of a violation of the above provision within the meaning
of Article 25 (Art. 25) of the Convention. In this respect they
submit that the challenged provisions of the Criminal Code are in
practice no longer in force. The Government observe that Sections
171, 172 and 173 of the Criminal Code are in conflict with Article 15
of the Constitution of Cyprus, the text of which is almost identical
to that of Article 8 of the Convention. They point out that no
prosecution for homosexual activities in private between consenting
male adults has taken place since the Dudgeon judgment of the European
Court of Human Rights and note that the practice of the Attorney
General is not to institute such a prosecution and to discontinue any
eventual private prosecution. Moreover, the Government submit that a
Parliamentary Commission has taken steps to amend the legislation
complained of.
The applicant notes that Sections 171 - 173 of the Criminal
Code are still in force and have been applied by Cypriot courts over
the last thirty years. He submits that there is no indication that
the Government have the intention of changing the legislation. On the
contrary, the competent Ministers stated on several occasions that the
legislation prohibiting male homosexual activities will remain
unaffected. Moreover, the Attorney General's practice cannot be
regarded as a sufficient guarantee against possible prosecution. This
practice may change and in any event it does not prevent private
prosecution.
The Commission recalls that in its judgment in the Marckx case
the European Court of Human Rights held the following:
"Article 25 (Art. 25) of the Convention entitles individuals
to contend that a law violates their rights by itself,
in the absence of an individual measure of implementation,
if they run the risk of being directly affected by it."
(Eur. Court H.R., Marckx judgment of 13 June 1979, Series A
no. 31 p. 13 para. 27).
Moreover, the Commission has had regard to the jurisprudence
of the Court according to which the very existence of a legislation
may continuously affect the exercise of a right under the Convention
(cf. Eur. Court H.R. Dudgeon judgment of 22 October 1981, Series A no.
45, p. 18 para. 41) even in the absence of an individual measure of
implementation (cf. Eur. Court H.R. Johnston and Others judgment of
18 December 1986, Series A no. 112, p. 21 para. 42) and even where the
risk of such an implementation is minimal (cf. Eur. Court H.R. Norris
judgment of 26 October 1988, Series A no. 142, p. 16 para. 33).
The Commission notes that the challenged legislative
provisions have not been abolished and that the applicant, whose
homosexual tendencies have not been contested by the Government, may
be affected by the impugned prohibition of homosexual acts. Having
regard to the above jurisprudence of the Court, the Commission finds
that the applicant may claim to be a victim within the meaning of
Article 25 (Art. 25) of the Convention.
The Government further object that the applicant has not
exhausted the domestic remedies at his disposal according to the
generally recognised rules of international law. They note that under
Article 29 of the Constitution "every person has the right ... to
address written requests or complaints to any competent public
authority and to have them decided expeditiously". According to
para. 2 of the above constitutional provision "where no such decision
is notified to the (interested) person ... such person may have
recourse to a competent court in the matter of such request or
complaint". Moreover, the Government submit that it was open to
the applicant to request that his "Liberation Movement of Homosexuals
in Cyprus" be registered as an association under Law 57/1972. Had
such a request been rejected by the competent authority, that is the
Minister of Interior, the applicant could have challenged this
decision before the Supreme Court. This court would then examine the
very issue of the compatibility of the provisions of the criminal code
with the Constitution and the Convention.
The applicant submits that, having regard to the judgment of
the Supreme Court in the Costa v. the Republic case, he must be
regarded as having exhausted the domestic remedies according to the
generally recognised rules of international law.
The Commission notes that in its judgment Costa v. the
Republic the Supreme Court expressly stated that, having regard to the
social and moral standards in Cyprus, the legislation complained of
does not infringe either the Constitution or the Convention. In this
respect the Commission recalls that an applicant who shows, from
decided cases, that the point at issue has already been decided by the
competent domestic authority is exempted, according to the generally
recognised rules of international law, from the obligation to exhaust
remedies (cf. No. 7630/76, Dec. 6.12.79, D.R. 19 p. 113 ; No. 8346/78,
Dec. 4.3.80, D.R. 19 p. 233).
In the light of the above considerations the Commission finds
that the applicant has complied with the requirement of Article 26
(Art. 26) of the Convention as to the exhaustion of domestic remedies
and that the Government's objection must be rejected.
As regards the merits of the complaint the Government submit
that the legislative provisions complained of apply to limited cases
which do not concern homosexual activities in private. They submit
that such a limited implementation must be regarded as necessary in a
democratic society since it aims in particular at the protection of
health and morals.
The applicant submits that the very existence of the
challenged provisions in the Criminal Code creates to him a constant
fear of prosecution. He submits that this constitutes an interference
with his right to respect for his private life which has no
justification in a democratic society.
The Commission has carried out a preliminary examination of the
parties' submissions under Article 8 (Art. 8) of the Convention and
finds that they raise important issues of law and fact. The
application cannot, therefore, be rejected as manifestly ill-founded
and must be declared admissible, no other ground for declaring it
inadmissible having been established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE, without in any
way prejudging the merits.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy