Application No. 10581/83
David NORRIS
against
IRELAND
Report of the Commission
(adopted on 12 March 1987)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 16) 1 - 2
A. The application
(paras. 1 - 4) 1
B. The proceedings
(paras 5 - 11) 1 - 2
C. The present Report
(paras. 12 - 16) 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17 - 30) 3 - 5
A. The relevant law and practice
(paras. 18 - 23) 3 - 4
B. The particular facts of the application
(paras. 24 - 30) 4 - 5
III. SUBMISSIONS OF THE PARTIES
(paras. 31 - 45) 6 - 9
A. The applicant
(paras. 31 - 37) 6 - 7
1. The position of the applicant as a
victim of a violation of Article 8
of the Convention
(paras. 31 - 34) 6 - 7
2. The merits of the Article 8 claim
(paras. 35 - 36) 7
3. Conclusion
(para. 37) 7
Page
B. The Government
(paras. 38 - 45) 7 - 9
1. Statistics
(para. 38) 7
2. The Dudgeon case
(paras. 39 - 45) 8 - 9
IV. OPINION OF THE COMMISSION
(paras. 46 - 64) 10 - 18
A. On the question of an interference
under Article 8 para. 1 of the
Convention
(paras. 47 - 56) 10 - 13
B. On the question of justification under
Article 8 para. 2 of the Convention
(paras. 57 - 63) 13 - 18
Conclusion
(para. 64) 18
Dissenting opinion of Mr. B. Kiernan, joined by
MM. Sperduti, Gözübüyük, Weitzel and Soyer 19
APPENDIX I History of the proceedings before
the Commission 20
APPENDIX II Decision on the admissibility of
the application 21 - 45
I. INTRODUCTION
A. The application
1. The applicant is a citizen of Ireland, born in 1944 and
resident in Dublin.
2. He is represented before the Commission by Mr John Jay,
Solicitor, of Messrs Herman Good, Hubert Wine & Co., Solicitors,
Dublin. The Irish Government is represented by Mrs Jane Liddy, Agent.
3. The applicant is a homosexual. He complains of legislation
which prohibits male homosexual activity (Sections 61 and 62 of the
Offences against the Person Act 1861 and Section 11 of the Criminal
Law (Amendment) Act 1885). He contested the constitutionality of the
legislation, but the Supreme Court upheld its constitutionality on
religious, moral, health and social grounds.
4. The applicant alleges that the prohibition on male homosexual
activity constitutes a continuing interference with his right to
respect for private life (which includes sexual life), ensured by
Article 8 of the Convention.
B. The proceedings
5. The application was introduced on 5 October 1983 and
registered on 7 October 1983.
6. On 2 July 1984 the Commission decided to give notice of the
application to the Government of Ireland and to invite them to present
written observations on admissibility and merits.
7. The Government's observations were received on 15 November
1984, the applicant's observations in reply were received on
10 January 1985.
8. On 16 May 1985 the Commission declared the application
admissible in so far as it had been presented by the applicant and
concerned his complaint of an unjustified interference with his
private life. The original application had also been lodged by the
National Gay Federation, and both the applicant and the Federation had
made other complaints under Articles 1 and 13 of the Convention.
These aspects of the case were declared inadmissible, as were the
Federation's entire complaints.
9. On 12 October 1985 the Commission decided to invite the
parties to a hearing on the merits of the case. This hearing was held
on 17 April 1986, on which date the applicant was also granted legal
aid for his representation before the Commission.
10. At the hearing the applicant was represented by Senator M.
Robinson, Counsel, and Mr J. Jay, Solicitor. The Government was
represented by Mrs J. Liddy, Agent, Messrs E. Comyn, S.C., and
J. O'Reilly, Counsel, and Messrs J. Hamilton and P. Smyth, Advisers.
11. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. Active consultations with the parties took place between
May 1985 and August 1986. In the light of the parties' reaction, the
Commission now finds that there is no basis upon which a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. Nørgaard, President
G. Sperduti
E. Busuttil
G. Jörundsson
B. Kiernan
A.S. Gözübüyük
A. Weitzel
J.-C. Soyer
H. Danelius
H. Vandenberghe
Mrs G.H. Thune
13. The text of this Report was adopted on 12 March 1987 and is
now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
i. to establish the facts, and
ii. to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I, and the Commission's
decision on the admissibility of the application as Appendix II.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
17. The relevant law and practice and the particular facts are not
in dispute between the parties.
A. The relevant law and practice
18. Section 61 of the Offences Against the Person Act 1861, as
amended in 1862, provides as follows:
"Whosoever shall be convicted of the abominable crime of
buggery, committed either with mankind or with any animal,
shall be liable ... to be kept in penal servitude for life."
19. Section 62 of the 1861 Act, as similarly amended, reads as
follows:
"Whosoever shall attempt to commit the said abominable crime,
or shall be guilty of any assault with intent to commit the
same, or of any indecent assault upon any male person, shall
be guilty of a misdemeanour, and being convicted thereof shall
be liable ... to be kept in penal servitude for any term not
exceeding ten years. "
20. Section 11 of the Criminal Law (Amendment) Act 1885 lays down
the following offences:
"Any male person who, in public or private, commits, or is a
party to the commission of, or procures or attempts to procure
the commission by any male person of any act of gross indecency
with another male person, shall be guilty of a misdemeanour and,
being convicted thereof, shall be liable at the discretion of the
court to be imprisoned for any term not exceeding two years with
or without hard labour. "
21. Sections 61 and 62 of the 1861 Act are to be read in
conjunction with the provisions of the Penal Servitude Act 1891, by
virtue of Section 1 of which the Court is empowered to impose a lesser
sentence of penal servitude than that mentioned in the 1861 Act, or,
in lieu thereof, a sentence of imprisonment for a term not exceeding
two years. The provisions are also subject to the powers given to the
Court by Section 1 (2) of the Probation of Offenders Act 1907,
whereby on conviction or indictment of any offence punishable with
imprisonment the Court may, instead of passing sentence, require a
person who has been convicted to enter into recognisances, with or
without sureties, to be of good behaviour and to appear for sentence
when called upon.
22. The Director of Public Prosecutions, who is independent in the
performance of his functions, has no stated prosecution policy on any
branch of the criminal law. He has no unstated policy not to enforce
any offence. Each case is treated on its merits. Prosecutions are
regularly brought under the Sections in question.
23. According to records going back to 1980, no file relating to
homosexual acts by adults in private has been received in the Public
Prosecutions' Office.
B. The particular facts of the application
24. The applicant has been an active campaigner for homosexuals'
rights in Ireland since 1971 and in 1974 he became a founding member
and chairman of the Irish Gay Rights Movement.
25. On 23 November 1977, the applicant issued High Court
proceedings against the Attorney General, being the appropriate person
to act as defendant in a constitutional action. He claimed, inter
alia :
(1) A Declaration that Sections 61 and 62 of the Offences
against the Person Act 1861 are inconsistent with the provisions of
the Constitution, were not continued in force by Article 50 of the
Constitution, and no longer form part of the Law of the State.
(2) A Declaration that Section 11 of the Criminal Law
(Amendment) Act 1885 is inconsistent with the provisions of the
Constitution, was also not continued by Article 50 thereof, and no
longer forms part of the Law of the State.
26. On 10 October 1980 the claim was dismissed and the applicant
was ordered to pay the costs of the action.
27. The applicant, subsequently, appealed to the Supreme Court.
The Court of five judges dismissed the appeal on 22 April 1983 in a
judgment delivered by three of the judges, with two dissenting
judgments.
28. In considering the applicant's claim under Article 8 of the
Convention, with reference to the Dudgeon case (Eur. Court H.R.,
judgment of 22 October 1981 Series A No. 45 para. 41), the Supreme
Court, in the majority judgment, stated that neither the Convention
nor the Dudgeon judgment were in any way relevant to the question
which had to be considered, the Convention not being part of domestic
law. However the Court was satisfied that the applicant had locus
standi to bring his constitutional claim even though he had not been
prosecuted for any of the offences in question. It held that "as
long as the legislation stands and continues to proclaim as criminal
the conduct which asserts he had a right to engage in,
such right, if it exists, is threatened, and has
standing to seek the protection of the Court."
29. It considered, inter alia, that the laws making homosexual
conduct criminal are consistent with the Irish Constitution, and no
right of privacy could prevail against them for the following reasons:
"(1) Homosexuality has always been condemned in Christian
teaching as being morally wrong. It has equally been regarded by
society for many centuries as an offence against nature and a
very serious crime.
(2) Exclusive homosexuality, whether the condition be congenital
or acquired, can result in great distress and unhappiness for the
individual and can lead to depression, despair and suicide.
(3) The homosexually oriented can be importuned into a
homosexual lifestyle which can become habitual.
(4) Male homosexual conduct has resulted, in other countries, in
the spread of all forms of venereal disease and this has now
become a significant public health problem in England.
(5) Homosexual conduct can be inimical to marriage and is per
se harmful to it as an institution."
30. On the question of costs, the Supreme Court, referring to the
exceptional circumstances of the case, ordered that the applicant be
awarded his costs both of the proceedings before the High Court and of
the appeal to the Supreme Court.
III. SUBMISSIONS OF THE PARTIES
A. The applicant
1. The position of the applicant as a victim of a
violation of Article 8 of the Convention
31. The applicant claims to be a victim of a violation of Article 8
of the Convention by virtue of the criminal law prohibition on male
homosexual activity. He relies on the case-law of the European Court
of Human Rights:
"Article 25 of the Convention entitles individuals to contend
that a law violates their right 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 para. 27)
32. In the Dudgeon case concerning identical legislation in
Northern Ireland the Court held as follows:
"In the personal circumstances of the applicant, the very
existence of this legislation continuously and directly
affects his private life .... either he respects the law
and refrains from engaging - even in private with
consenting male partners - in prohibited sexual acts to
which he is disposed by reason of his homosexual tendencies,
or he commits such acts and thereby becomes liable to
criminal prosecution." (Eur. Court H.R. Dudgeon judgment
of 22 October 1981 Series A No. 45 para. 41)
33. The applicant also refers to the evidence put before and
accepted by the Supreme Court of the personal effects of the impugned
legislation upon him: he had realised at a young age that he was
irreversibly homosexual, and had become traumatised by the fear that
any overt expression of his sexuality would expose him to criminal
prosecution. The applicant has had a long-term and stable
relationship with another man who is not living in Ireland. He has
suffered great strain, apprehension and fear of prosecution with the
necessarily covert nature of this relationship, to the extent that the
applicant had to seek psychotherapy. The psychiatrist advised him
after nine months of treatment to consider emigrating to a country
where the law takes a more liberal attitude to male homosexuals. The
applicant has been subjected to denigrating and hurtful treatment
meted out to him because of his homosexuality. Since publicly
campaigning for homosexual rights, he has been physically attacked and
verbally abused. There have been other alleged interferences with his
private life with the opening of his mail on several occasions and the
upholding of a complaint against the State broadcasting company,
R.T.E., for broadcasting an interview with the applicant concerning
his homosexuality.
34. The fact that the Director of Public Prosecutions has no
stated or unstated policy not to prosecute adult homosexuals shows the
continuing risk of prosecution to which the applicant is exposed.
However the absence of recent prosecutions also shows the absence of
any pressing social need to make homosexual activities criminal
offences.
2. The merits of the Article 8 claim
35. The applicant again relies on the conclusions of the
Commission and the Court in the Dudgeon case, from which, it is
submitted, the present case cannot be distinguished (cf. in particular
Eur. Court H.R. judgment of 22 October 1981, Series A No. 45 paras.
48, 52 and 60).
36. The applicant contends that the Government has submitted no
significant evidence or argument as to the necessity of maintaining
the criminalisation of adult homosexual activities in Ireland. No
evidence has been put forward of any pressing social need for the
interference with the private life in question. Despite Governments'
margin of appreciation in this area, there must exist serious reasons
before the State may legitimately interfere with the intimate, sexual
aspects of private life. No such reasons have been put forward in the
present case.
3. Conclusion
37. The applicant desires to engage privately in sexual activity
with another consenting adult. The activity he has been engaged in
and seeks to continue is quintessentially private and lies at the
heart of an intimate association which must be beyond the reach of the
criminal law in the Contracting Parties to the Convention. It is
submitted that his case falls within the principles as clarified by
the Court in the Dudgeon case and that there is no distinguishing
feature in Irish society to justify the continuance in force of
legislation criminalising such homosexual activity.
B. The Government
1. Statistics
38. The Government refers to the prosecution statistics for
offences involving indecency between males, including buggery and
homosexual acts and attempts at such acts over the period 1979 to
1985. These statistics show that there is not a determined policy to
prosecute or persecute the adult homosexual community, few
prosecutions having been brought during the relevant period except
where minors have been involved or the acts committed in public or
without consent.
2. The Dudgeon case
39. The Government relies on its submissions prior to the
admissibility of the application, in particular the partially
dissenting opinion of Judge Walsh in the Dudgeon judgment (see the
Commission's Decision on Admissibility, Appendix II to this Report
pp. 24-37).
40. The relevance of the judgment of the European Court of Human
Rights in the Dudgeon case is acknowledged: the legislation involved
is identical, the sexual nature of the applicants is apparently the
same, and the absence of any Government undertaking not to prosecute
is also a common factor. However the Government submits that the
present case can be distinguished from that of Mr Dudgeon.
41. There has been no public authority interference with the
applicant's private life, despite his campaigning for homosexuals'
rights and his Supreme Court case i.e. his activities being public
knowledge. He runs no real risk of being directly affected by the
laws in question. On the contrary there has been a degree of
recognition of the applicant's position and a sympathy with his aims
by at least one State organ, namely the Supreme Court. In the Dudgeon
case, on the other hand, there was substantial evidence of direct
interference by public authorities in that applicant's private life.
On a drugs raid of Mr Dudgeon's home the police seized a great
quantity of his personal papers including letters and diaries.
Mr Dudgeon then accompanied the police to the police station where he
was questioned at length about his private sexual life. Those papers
were retained for a year, during which time Mr Dudgeon experienced
intense anxiety and the very real expectation of a serious criminal
prosecution.
42. Nothing of the sort happened to the present applicant, who is
complaining, in the abstract, of the mere existence of certain penal
laws, which have fallen into desuetude regarding private, adult
homosexual acts. The fact that such laws have fallen into disuse
reflects the evolution of public opinion to one of indifference or the
liberalisation of society's norms of behaviour. Although a Catholic
society, Ireland should not be seen as intolerant. Nor should it be
assumed that, in the sphere of judicial review, orthodox Catholic
teaching is a touchstone when considering the curtailment of liberty.
However if the legislature is slow to repeal the laws in question this
is because caution must be shown in choosing the right time for reform
which will meet with wide acceptance rather than a hostile backlash of
prejudice. Respect must therefore be afforded to that transitional
period during which certain laws fall into disuse. These are matters
which fall within a State's margin of appreciation (cf. e.g. Eur.
Court H.R. Abdulaziz, Cabales and Balkandali judgment of 28 May 1985
Series A No. 94 para. 67 and the Handyside judgment of 7 December 1976
Series A No. 24 para. 48).
43. Thus whilst the applicant as a person with a homosexual nature
can validly claim to be prohibited by the laws complained of from
performing homosexual acts in private, and in that sense his claim is
neither abstract nor academic, nevertheless, his application
represents as extreme a case in this respect as can be envisaged, in
view of the freedom he has enjoyed in his public avowals and his
uninhibited campaign for reform. It would therefore be stretching the
notion of victim under Article 25 of the Convention to the outermost
limit if the principles of the Marckx and Dudgeon judgments of the
European Court of Human Rights were applied in this case.
44. The Government refers to other cases before the Commission in
which it has held that, despite the modern evolution of attitudes
towards homosexuality, not every aspect of homosexual life is
protected by Article 8 of the Convention, e.g. as regards the
exclusion of a man from the country where his homosexual partner
permanently resides (No. 9369/81 Dec. 3.5.83 D.R. 32 p. 220) and the
imposition of different rules for the homosexual age of sexual consent
(No. 7215/75 Comm. Report 12.10.78 D.R. 19 p. 66).
45. At the time of the Dudgeon case apparently more than one other
High Contracting Party, apart from Ireland, prohibited consensual
homosexual acts between adults. Liechtenstein even entered an express
reservation to the Dudgeon judgment when ratifying the Convention.
The United States Supreme Court has refused to review the laws of
certain American States retaining criminal prohibitions on homosexual
acts. The Government, therefore, submits that this wide diversity of
practices in the various jurisdictions and the absence of any direct
action by the public authorities against the applicant are matters
which the Commission should carefully consider in this case.
IV. OPINION OF THE COMMISSION
46. The point at issue is whether the facts of the present case,
by reason of the existence in Ireland of laws prohibiting homosexual
acts between consenting, adult men, disclose a violation of the
applicant's right to respect for private life, as guaranteed by
Article 8 (Art. 8) of the Convention.
A. On the question of an interference under Article 8 para. 1
(Art. 8-1) of the Convention
47. Article 8 (Art. 8) of the Convention provides 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."
48. The Commission has held in its decision on admissibility that the
applicant may claim to be a victim of a violation of Article 8 (Art. 8) of the
Convention (see Appendix II p. 43). The Commission therefore reads the
parties' further submissions on the merits of this case as regards the issue of
"victim" as being pertinent to the related question of whether the applicant
has suffered an actual interference with his right to respect for private life,
ensured by Article 8 para. 1 (Art. 8-1) of the Convention.
49. The applicant has contended that, as a homosexual, he has
suffered great strain, apprehension and fear of prosecution, by reason
of the existence of the penal laws in question. This stress has
caused him to seek psychiatric treatment. The fear of prosecution is
constant, given the absolute nature of the prohibition on homosexual
activity and the absence of any clear policy on the part of the
Director of Public Prosecutions not to prosecute.
50. The Government has submitted that the mere existence of penal
legislation prohibiting homosexual activity is not in itself
sufficient to constitute an interference with the applicant's right to
respect for private life, for, otherwise, the applicant has never been
questioned by the police about his homosexual activities or publicly
held views on the subject, and he has never been prosecuted for such
activities.
51. The Commission refers to the case of Dudgeon v. the United
Kingdom (Comm. Report 13.3.80, Eur. Court H.R. Series B No. 40, and
Eur. Court H.R. judgment of 22 October 1981 Series A No. 45). In that
case the applicant, a homosexual, complained of identical legislation
in Northern Ireland prohibiting homosexual acts between consenting
adult men.
52. In that case the Commission expressed the following opinion at
paras. 88 - 95 of its Report:
"88. The laws in question in the present case impose an
absolute prohibition on certain forms of sexual acts, regardless
of whether they are committed in public or private, or whether or
not the parties thereto are consenting parties. However it seems
clear that the applicant's complaint relates only to the
prohibition of private, consensual acts, which in the
Commission's opinion clearly fall within the sphere of private
life.
....
90. The Commission accepts that, as a general rule, it is
necessary to take into account the way a law is applied in
practice when deciding whether it gives rise to an interference
with the private life of an individual applicant. In accordance
with the Court's case-law in the Klass Case ..., such
an applicant may only complain of the actual effects of the law
on him. If in reality it does not affect him at all, he cannot
complain. Or its effects may be slight and not such as to
interfere with his right to private life. When he complains of
the existence of penal legislation, the question whether he runs
any risk of prosecution will be relevant in assessing the
existence, extent and nature of any actual effects on him. On
the other hand the mere fact that a penal law has not been
enforced by means of criminal proceedings, or is unlikely to be
so enforced, does not of itself negate the possibility that it
has effects amounting to interference with private life. A
primary purpose of any such laws is to prevent the conduct it
proscribes, by persuasion or deterrence. It also stigmatises the
conduct as unlawful and undesirable. These aspects must also be
taken into consideration.
91. The essential question is whether the actual effects of
the law, in all the circumstances of the case, are such as to
amount to an interference with the right to respect for private
life of the individual concerned. The relative weight to be
attached to any one factor, such as the terms of the legislation
or the rigour with which it is actually enforced, must vary
according to the circumstances.
....
93. The law ... prohibits private consensual homosexual acts
involving persons over 21 years of age but, subject to one
possible exception, it does not appear to have been enforced by
means of criminal proceedings in respect of any such acts since
at least 1972. However, it has not fallen into desuetude or lost
its legal effectiveness to prohibit such acts. The legal
prohibition remains and the possibility of prosecutions by either
the public prosecuting authorities or private individuals is open
in law. Furthermore it does not appear that there is any clear
policy not to prosecute in respect of such acts. Whilst there
have been no recent prosecutions, this may well be explained by
the evident difficulties in obtaining evidence and the fact that
relevant complaints are apparently very rarely made to the police.
....
94. The risk of prosecution if the law is disregarded is thus
not altogether absent. Furthermore, the penalties which could be
imposed on conviction are heavy. In such circumstances it is
inevitable, in the Commission's opinion, that the existence of
the law will give rise to a degree of fear or restraint on the
part of male homosexuals. ....
95. The absolute legal prohibition on private consensual
homosexual acts involving persons over 21 years of age cannot
therefore be regarded as now being illusory or theoretical, or
as having no real or practical effect. It still has concrete
effects on the private life of male homosexuals including the
present applicant, even if the risk that it will be enforced in
criminal proceedings may not be great. In all the circumstances
the Commission is therefore of the opinion that the existence of
this prohibition in Northern Ireland law also interferes with the
applicant's right to respect for private life."
53. This opinion was endorsed by the European Court of Human
Rights (judgment para. 41).
54. The Commission and the Court also took into account the fact
that steps towards prosecuting Mr Dudgeon had been taken by the
police, even though no criminal charges were in fact brought.
55. The Commission finds the present case indistinguishable from
that of Mr. Dudgeon on the question of an interference with the right
to respect for private life ensured by Article 8 para. 1 (Art. 8-1) of the
Convention. In the present case there is a clear prohibition (Section
11 of the Criminal Law (Amendment) Act 1885) on the applicant's
homosexual activities with consenting, adult men. Although, during
the relevant period, there has been no prosecution of adult,
homosexual activities, there has also been no explicit policy
declaration by the Director of Public Prosecutions not to prosecute.
This aspect of the law has therefore clearly not fallen into desuetude
and can still be considered to have residual effects. One of the main
purposes of penal legislation is to deter the proscribed behaviour,
and citizens are deemed to conduct themselves, or modify their
behaviour, in such a way as not to contravene the criminal law. It
cannot be said, therefore, that the applicant runs no risk of
prosecution or that he can wholly ignore the legislation in question.
The applicant is a declared homosexual who claims to have a stable
relationship with an adult man. The applicant also claims to have
suffered great stress as a result of his sexual proclivities and the
fear of prosecution because of them. In the circumstances the
Commission considers that there is no reason to doubt the general
truth of these claims concerning the fear and distress that he has
suffered.
56. The Commission, therefore, finds that the legislation
complained of interferes with the applicant's right to respect for his
private life, ensured by Article 8 para. 1 (Art. 8-1) of the Convention, in so
far as it prohibits homosexual acts committed in private between
consenting adult men.
B. On the question of justification under Article 8 para. 2
(Art. 8-2) of the Convention
57. The next question which arises is whether the interference
with the applicant's private life is prescribed by law and necessary
in a democratic society on one or more of the grounds set out in
Article 8 para. 2 (Art. 8-2) of the Convention.
58. As to the first point, the interference is plainly "in
accordance with the law", within the meaning of Article 8 para. 2 (Art. 8-2),
since it arises from the very existence of the legislation.
59. As regards the question of necessity, the applicant has
submitted that the considerations and conclusions of the Commission
and Court in the Dudgeon case are again relevant to his application.
He contended that the Government has provided no significant evidence
or argument as to the necessity of maintaining the criminalisation of
adult homosexual activities in Ireland. Moreover, there is no
evidence of any pressing social need for such an interference with
private life, as is shown by the absence of any recent criminal
prosecutions in this sphere.
60. The Government has relied on the dissenting opinion of
Mr Justice Walsh in the Dudgeon case, who considered, inter alia, that
the State has a valid interest in the prevention of corruption and in
the preservation of the moral ethos of its society. It may,
therefore, enact such laws as it thinks necessary to achieve these
objects. There cannot be said to be a common, moral, European
standard in the legislation concerning homosexual practices. Thus in
an area of law where adults, albeit consenting, may be exploited by
reason of their own weaknesses, the legislature has a wide margin of
appreciation in enacting protective legislation.
61. The Government submitted that there is a wide diversity of
legislative practices and attitudes in the various jurisdictions of
the Council of Europe, as well as in the comparable jurisdictions of
the United States of America. Thus, even if the penal prohibition on
adult homosexual activities has in effect fallen into disuse in
Ireland, it is within the State's margin of appreciation to choose the
appropriate moment for reform so that it meets with wide acceptance
rather than a hostile backlash of prejudice.
62. The Commission refers to the Dudgeon case, and, in particular,
the considerations of the European Court of Human Rights in its
judgment of 22 October 1981 (paras. 48 - 63), on the question of
necessity:
"48. As the Commission rightly observed in its report (at
paragraph 101), the cardinal issue arising under Article 8 (Art. 8) in
this case is to what extent, if at all, the maintenance in force
of the legislation is 'necessary in a democratic society' for
these aims.
49. There can be no denial that some degree of regulation of
male homosexual conduct, as indeed of other forms of sexual
conduct, by means of the criminal law can be justified as
'necessary in a democratic society'. The overall function served
by the criminal law in this field is, in the words of the
Wolfenden report ...., 'to preserve public order and decency
to protect the citizen from what is offensive or injurious'.
Furthermore, this necessity for some degree of control may even
extend to consensual acts committed in private, notably where
there is call - to quote the Wolfenden report once more - 'to
provide sufficient safeguards against exploitation and corruption
of others, particularly those who are specially vulnerable
because they are young, weak in body or mind, inexperienced, or
in a state of special physical, official or economic dependence'.
In practice there is legislation on the matter in all the member
States of the Council of Europe, but what distinguishes the law
in Northern Ireland from that existing in the great majority of
the members States is that it prohibits generally gross indecency
between males and buggery whatever the cicumstances. It being
accepted that some form of legislation is 'necessary' to protect
particular sections of society as well as the moral ethos of
society as a whole, the question in the present case is whether
the contested provisions of the law of Northern Ireland and their
enforcement remain within the bounds of what, in a democratic
society, may be regarded as necessary in order to accomplish
those aims.
50. A number of principles relevant to the assessment of the
'necessity', 'in a democratic society', of a measure taken in
furtherance of an aim that is legitimate under the Convention
have been stated by the Court in previous judgments.
51. Firstly, 'necessary' in this context does not have the
flexibility of such expressions as 'useful', 'reasonable', or
'desirable', but implies the existence of a 'pressing social
need' for the interference in question (see the above-mentioned
Handyside judgment, p. 22, para. 48).
52. In the second place, it is for the national authorities
to make the initial assessment of the pressing social need in
each case; accordingly, a margin of appreciation is left to them
(ibid). However, their decision remains subject to review by the
Court (ibid., p. 23, para. 49).
As was illustrated by the Sunday Times judgment, the
scope of the margin of appreciation is not identical in respect
of each of the aims justifying restrictions on a right (p. 36,
para. 59). The Government inferred from the Handyside judgment
that the margin of appreciation will be more extensive where the
protection of morals is in issue. It is an indisputable fact, as
the Court stated in the Handyside judgment, that 'the view taken
.... of the requirements of morals varies from time to time and
from place to place, especially in our era,' and that 'by reason
of their direct and continuous contact with the vital forces of
their countries, State authorities are in principle in a better
position than the international judge to give an opinion on the
exact content of those requirements' (p. 22, para. 48).
However, not only the nature of the aim of the
restriction but also the nature of the activities involved will
affect the scope of the margin of appreciation. The present case
concerns a most intimate aspect of private life. Accordingly,
there must exist particularly serious reasons before
interferences on the part of the public authorities can be
legitimate for the purposes of paragraph 2 of Article 8 (Art. 8-2).
53. Finally, in Article 8 (Art. 8) as in several other Articles of the
Convention, the notion of 'necessity' is linked to that of a
'democratic society'. According to the Court's case-law, a
restriction on a Convention right cannot be regarded as
'necessary in a democratic society' - two hallmarks of which are
tolerance and broadmindedness - unless, amongst other things, it
is proportionate to the legitimate aim pursued (see the above-
mentioned Handyside judgment, p. 23, para. 49, and the above-
mentioned Young, James and Webster judgment, p. 25, para. 63).
54. The Court's task is to determine on the basis of the
aforestated principles whether the reasons purporting to justify
the 'interference' in question are relevant and sufficient under
Article 8 para. 2 (see the above-mentioned Handyside judgment,
pp. 23 - 24, para. 50). The Court is not concerned with making
any value-judgment as to the morality of homosexual relations
between adult males.
....
57. .... the moral climate in Northern Ireland in sexual
matters, in particular as evidenced by the opposition to the
proposed legislative change, is one of the matters which the
national authorities may legitimately take into account in
exercising their discretion. There is, the Court accepts, a
strong body of opposition stemming from a genuine and sincere
conviction shared by a large number of responsible members of the
Northern Irish community that a change in the law would be
seriously damaging to the moral fabric of society .... This
opinion reflects .... a view both of the requirements of morals
in Northern Ireland and of the measures thought within the
community to be necessary to preserve prevailing moral standards.
Whether this point of view be right or wrong, and
although it may be out of line with current attitudes in other
communities, its existence among an important sector of Northern
Irish society is certainly relevant for the purposes of Article 8
para. 2 (Art. 8-2).
....
59. Without any doubt .... the United Kingdom Government
acted carefully and in good faith; what is more, they made every
effort to arrive at a balanced judgment between the differing
viewpoints before reaching the conclusion that such a substantial
body of opinion in Northern Ireland was opposed to a change in
the law that no further action should be taken (see, for example,
paragraphs 24 and 26 above). Nevertheless, this cannot of itself
be decisive as to the necessity for the interference with the
applicant's private life resulting from the measures being
challenged (see the above-mentioned Sunday Times judgment, p. 36,
para. 59). Notwithstanding the margin of appreciation left to
the national authorities, it is for the Court to make the final
evaluation as to whether the reasons it has found to be relevant
were sufficient in the circumstances, in particular whether the
interference complained of was proportionate to the social need
claimed for it (see paragraph 53 above).
60. The Convention right affected by the impugned legislation
protects an essentially private manifestation of the human
personality (see paragraph 52, third sub-paragraph, above).
As compared with the era when that legislation was
enacted, there is now a better understanding, and in consequence
an increased tolerance, of homosexual behaviour to the extent
that in the great majority of the member States of the Council of
Europe it is no longer considered to be necessary or appropriate
to treat homosexual practices of the kind now in question as in
themselves a matter to which the sanction of the criminal law
should be applied; the Court cannot overlook the marked changes
which have occurred in this regard in the domestic law of the
member States (see, mutatis mutandis, the above-mentioned Marckx
judgment, p. 19, para. 41, and the Tyrer judgment of 25 April
1978, Series A No. 26, pp. 15 - 16, para. 31). In Northern
Ireland itself, the authorities have refrained in recent years
from enforcing the law in respect of private homosexual acts
between consenting males over the age of 21 years capable of
valid consent .... No evidence has been adduced to show that
this has been injurious to moral standards in Northern Ireland or
that there has been any public demand for stricter enforcement of
the law.
It cannot be maintained in these circumstances that there
is a 'pressing social need' to make such acts criminal offences,
there being no sufficient justification provided by the risk of
harm to vulnerable sections of society requiring protection or by
the effects on the public. On the issue of proportionality, the
Court considers that such justifications as there are for
retaining the law in force unamended are outweighed by the
detrimental effects which the very existence of the legislative
provisions in question can have on the life of a person of
homosexual orientation like the applicant. Although members of
the public who regard homosexuality as immoral may be shocked,
offended or disturbed by the commission by others of private
homosexual acts, this cannot on its own warrant the application
of penal sanctions when it is consenting adults alone who are
involved.
61. Accordingly, the reasons given by the Government,
although relevant, are not sufficient to justify the maintenance
in force of the impugned legislation in so far as it has the
general effect of criminalising private homosexual relations
between adult males capable of valid consent. In particular, the
moral attitudes towards male homosexuality in Northern Ireland
and the concern that any relaxation in the law would tend to
erode existing moral standards cannot, without more, warrant
interfering with the applicant's private life to such an extent.
'Decriminalisation' does not imply approval, and a fear that some
sectors of the population might draw misguided conclusions in
this respect from reform of the legislation does not afford a
good ground for maintaining it in force with all its
unjustifiable features.
To sum up, the restriction imposed on Mr Dudgeon under
Northern Ireland law, by reason of its breadth and absolute
character, is, quite apart from the severity of the possible
penalties provided for, disproportionate to the aims sought to be
achieved.
....
63. Mr Dudgeon has suffered and continues to suffer an
unjustified interference with his right to respect for his
private life. There is accordingly a breach of Article 8 (Art. 8)."
63. As regards the present case, the Commission is of the opinion
that it is indistinguishable from that of Mr Dudgeon on the question
of necessity. The Commission finds that the respondent Government has
not shown how the present case significantly differs from that of Mr
Dudgeon. Although there may indeed be no common, moral, European
standard on the criminalisation of homosexuality, nevertheless it has
not been shown that the societies of Southern and Northern Ireland are
widely different in their attitudes to adult homosexual activities.
In particular the respondent Government has not contended, as did the
United Kingdom Government in respect of Northern Ireland in the
Dudgeon case, that there is a large body of opinion in Ireland which
is hostile or intolerant towards adult homosexual activity. On the
contrary, the Government stated that Ireland should not be seen as an
intolerant society. Moreover it has not been contended that Irish
society has a special need to be protected from such activity. In
these circumstances the Commission is of the opinion that the
restriction imposed on the present applicant under Irish law, by
reason of its breadth and absolute character, is disproportionate to
the aims sought to be achieved. The penal prohibition of adult
homosexual activities, therefore, constitutes an interference with the
applicant's private life which is not necessary for one or more of the
reasons laid down in Article 8 para. 2 (Art. 8-2) of the Convention.
Conclusion
64. The Commission concludes, by 6 votes to 5, that there has
been a violation of Article 8 (Art. 8) of the Convention in that the
interference with the applicant's right to respect for private life
was not necessary, within the meaning of the second paragraph of that
provision.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Dissenting opinion of Mr. B. Kiernan, joined by MM. Sperduti,
Gözübüyük, Weitzel and Soyer
I disagree with the opinion of the majority of the
Commission. Although Section 11 of the Criminal Law (Amendment) Act
1885 is still on the statute book, it has been allowed to fall into
disuse in so far as it relates to the homosexual activities of
consenting adult males. There has been no prosecution either by a
private person or by the Director of Public Prosecutions in respect
of such activities for many years.
I attach no significance to the fact that the Director of
Public Proseuctions has not issued any declaration of an explicit
policy not to prosecute. To do so would run counter to the duties of
his office and would, in effect, be a usurpation of the functions of
the Legislature.
The proceedings taken by Mr. Norris before the Commission are,
in my opinion, in the nature of an actio popularis designed to focus
attention and attract support for his campaign for the revision of the
statute law of which he complains.
I, therefore, conclude that there has been no violation of
Article 8 of the Convention in the present case.
APPENDIX I
History of proceedings before the Commission
Date Item
____________________________________________________________________________
a) Examination of admissibility
5 October 1983 Introduction of application
7 October 1983 Registration of application
2 July 1984 Commission's deliberations and
decision to communicate
application to respondent
Government
15 November 1984 Receipt of Government's
observations
10 January 1985 Receipt of applicant's obser-
vations in reply
16 May 1985 Commission's deliberations and
decision to declare application
partially admissible
b) Examination of the merits
12 October 1985 Commission's deliberations and
decision to hold a hearing on the
merits of the application
17 April 1986 Hearing on the merits and
deliberations
For the Government:
Mrs Liddy
MM Comyn
O'Reilly
Hamilton
Smyth
For the applicant:
Mrs Robinson
Mr Jay
11 October 1986 Commission's deliberations
on the merits
5 March 1987 Deliberations and final
votes.
12 March 1987 Adoption of the Report