EUROPEAN COURT OF HUMAN RIGHTS
In the case of Modinos v. Cyprus*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr I. Foighel,
Mr F. Bigi,
Sir John Freeland,
Mr A.B. Baka,
Mr G. Pikis, ad hoc judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 31 October 1992 and
25 March 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 7/1992/352/426. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court on 21 February 1992 by
the European Commission of Human Rights ("the Commission"),
within the three-month period laid down in Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It
originated in an application (no. 15070/89) against Cyprus lodged
with the Commission under Article 25 (art. 25) on 25 May 1989 by
Mr Alecos Modinos, a Cypriot citizen.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Cyprus
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 8 (art. 8) of
the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr A.N. Loizou, the elected judge of Cypriot nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). In a letter to the
President of 10 March 1992, Mr Loizou stated that he wished to
withdraw pursuant to Rule 24 para. 3 as he had been a member of
the Supreme Court of Cyprus in a case where comparable issues had
been examined (see paragraph 11 below). On 10 April 1992 the
Agent of the Government of Cyprus ("the Government") informed the
Registrar that Mr Justice Georghios Pikis had been appointed as
ad hoc judge (Article 43 of the Convention and Rule 23)
(art. 43).
On 25 March 1992 the President had drawn by lot, in the
presence of the Registrar, the names of the seven other members
of the Chamber, namely Mr F. Matscher, Mr R. Bernhardt,
Mr A. Spielmann, Mr I. Foighel, Mr F. Bigi, Sir John Freeland and
Mr A.B. Baka (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
4. On 10 April 1992 the International Lesbian and Gay
Association sought leave under Rule 37 para. 2 to submit written
comments. On 12 May 1992 the President decided not to grant
leave.
5. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Government, the Delegate of the Commission and the
applicant's representative on the organisation of the procedure
(Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received, on 17 June 1992, the
applicant's and the Government's memorials. On 30 June the
Secretary to the Commission informed him that the Delegate would
submit his observations at the hearing.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 27 October 1992. The Court had held a preparatory meeting
beforehand. Prior to the hearing the applicant had filed a
supplementary claim for costs.
There appeared before the Court:
(a) for the Government
Mr R. Gavrielides, Senior Counsel, Deputy Agent,
Mrs L. Koursoumba, Senior Counsel, Counsel;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicant
Mr A. Demetriades, Barrister-at-law, Counsel.
The Court heard addresses by Mr Gavrielides for the
Government, by Mr Loucaides for the Commission and by
Mr Demetriades for the applicant. During the hearing various
documents were filed by the applicant.
AS TO THE FACTS
7. The applicant is a homosexual who is currently involved
in a sexual relationship with another male adult. He is the
President of the "Liberation Movement of Homosexuals in Cyprus".
He states that he suffers great strain, apprehension and fear of
prosecution by reason of the legal provisions which criminalise
certain homosexual acts.
A. Criminal Code
8. Sections 171, 172 and 173 of the Criminal Code of Cyprus,
which predates the Constitution, 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."
9. Various Ministers of Justice had indicated in statements
to newspapers dated 11 May 1986, 16 June 1988 and 29 July 1990,
that they were not in favour of introducing legislation to amend
the law relating to homosexuality. In a statement to a newspaper
on 25 October 1992 the Minister of the Interior stated, inter
alia, that although the law was not being enforced he did not
support its abolition.
B. Constitutional provisions
10. The relevant provisions of the Constitution of the
Republic of Cyprus, which came into force on 16 August 1960, read
as follows:
Article 15
"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 is 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."
Article 169
"1. ...
2. ...
3. Treaties, conventions and agreements concluded in
accordance with the foregoing provisions of this
Article shall have, as from their publication in
the Official Gazette of the Republic, superior
force to any municipal law on condition that such
treaties, conventions and agreements are applied
by the other party thereto."
Article 179
"1. This Constitution shall be the supreme law of the
Republic.
2. No law or decision of the House of
Representatives or of any of the Communal
Chambers and no act or decision of any organ,
authority or person in the Republic exercising
executive power or any administrative function
shall in any way be repugnant to, or inconsistent
with, any of the provisions of this
Constitution."
Article 188
"1. Subject to the provisions of this Constitution
and to the following provisions of this Article,
all laws in force on the date of the coming into
operation of this Constitution shall, until
amended, whether by way of variation, addition or
repeal, by any law or communal law, as the case
may be, made under this Constitution, continue in
force on or after that date, and shall, as from
that date be construed and applied with such
modification as may be necessary to bring them
into conformity with this Constitution.
2. ...
3. ...
4. Any court in the Republic applying the provisions
of any such law which continues in force under
paragraph 1 of this Article, shall apply it in
relation to any such period, with such
modification as may be necessary to bring it into
accord with the provisions of the Constitution
including the Transitional Provisions thereof.
5. In this Article -
'law' includes any public instrument made before
the date of the coming into operation of this
Constitution by virtue of such law;
'modification' includes amendment, adaptation and
repeal."
C. Case-law
11. In the case of Costa v. The Republic (2 Cyprus Law
Reports, pp. 120-133 [1982]) the accused - a 19 year-old
soldier - was convicted of the offence of permitting another male
person to have carnal knowledge of him contrary to section 171(b)
of the Criminal Code. The offence was committed in a tent within
the sight of another soldier using the same tent. The accused
had contended that section 171(b) was contrary to Article 15 of
the Constitution and/or Article 8 (art. 8) of the European
Convention on Human Rights. In its judgment of 8 June 1982 the
Supreme Court noted that, since the offence was not committed in
private and since the accused was a soldier who was 19 years of
age at the time, the constitutional and legal issues raised by
the case fell outside the ambit of the construction given to
Article 8 (art. 8) by the European Court of Human Rights in its
Dudgeon v. the United Kingdom judgment of 22 October 1981
(Series A no. 45). The Supreme Court, nevertheless, added that
it could not follow the majority view of the Court in the Dudgeon
case and adopted the dissenting opinion of Judge Zekia. The
court stated as follows:
"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 ...
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."
D. The prosecution policy of the Attorney-General
12. There had been prosecutions and convictions in Cyprus for
homosexual conduct in private between consenting adults up until
the 1981 judgment of the European Court in the Dudgeon case (loc.
cit.). When this case was pending before the European Court the
Attorney-General requested the police not to continue with a
prosecution under section 171 because of apparent conflict
between that provision and Article 8 (art. 8) of the Convention.
Since that date the Attorney-General's office has not allowed or
instituted any prosecution which conflicts with either
Article 8 (art. 8) of the Convention or Article 15 of the
Constitution, in so far as they relate to homosexual behaviour
in private between consenting adults.
Under Article 113 of the Constitution of Cyprus the
Attorney-General is vested with competence to institute and
discontinue criminal proceedings in the public interest.
Although he could not prevent a private prosecution from being
brought he can intervene to discontinue it.
PROCEEDINGS BEFORE THE COMMISSION
13. In his application before the Commission (no. 15070/89)
lodged on 22 May 1989, the applicant complained that the
prohibition on male homosexual activity constituted a continuing
interference with his right to respect for private life in breach
of Article 8 (art. 8) of the Convention.
14. On 6 December 1990 the Commission declared the
application admissible. In its report of 3 December 1991, drawn
up under Article 31 (art. 31) of the Convention, it concluded
unanimously that there had been a breach of Article 8 (art. 8).
The full text of the Commission's opinion is reproduced
as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 259
of Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS MADE BY THE GOVERNMENT
15. At the hearing on 27 October 1992 the Government
requested the Court to find that there had been no breach of
Article 8 (art. 8).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
16. The applicant complained that the maintenance in force of
provisions of the Cypriot Criminal Code (see paragraph 8 above)
which criminalise private homosexual relations constitutes an
unjustified interference with his right to respect for private
life under Article 8 (art. 8) of the Convention which reads:
"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."
A. The existence of an interference
17. The Government submitted that neither the applicant nor
any other person in his situation could be lawfully prosecuted
under sections 171, 172 and 173 of the Cypriot Criminal Code,
since, to the extent that these provisions concerned homosexual
relations in private between consenting male adults, they are in
conflict with Article 15 of the Cypriot Constitution
(see paragraph 10 above) and Article 8 (art. 8) of the
Convention. To that extent the prohibition of such relations is
in fact no longer in force. Moreover, since 1981 the
Attorney-General, who has exclusive competence to institute and
discontinue criminal proceedings, has not brought or permitted
a prosecution in respect of such homosexual conduct (see
paragraph 12 above). Accordingly, there being no risk of
prosecution, there is no interference with the applicant's rights
under Article 8 (art. 8).
18. The applicant disagreed. In his view, the impugned
provisions are still in force. He pointed to the statements of
various Government ministers who, by objecting to the amendment
of the law, had implicitly acknowledged its validity (see
paragraph 9 above). Moreover, the policy of the Attorney-General
not to prosecute could change at any time and a member of the
public could bring a private prosecution against the applicant.
There is thus no guarantee that he will not be prosecuted.
19. For the Commission, the applicant's fear of prosecution
could not be regarded as unfounded.
20. The Court first observes that the prohibition of male
homosexual conduct in private between adults still remains on the
statute book (see paragraph 8 above). Moreover, the Supreme
Court of Cyprus in the case of Costa v. The Republic considered
that the relevant provisions of the Criminal Code violated
neither the Convention nor the Constitution notwithstanding the
European Court's Dudgeon v. the United Kingdom judgment of
22 October 1981 (Series A no. 45) (see paragraph 11 above).
21. The Government, however, have maintained that this case
was decided by the Supreme Court in June 1982, prior to the
Norris v. Ireland judgment of 26 October 1988 (Series A no. 142)
and before the implications of the Dudgeon decision were properly
understood; and further that since the Costa case did not concern
private homosexual relations between adults the Supreme Court's
remarks concerning the Dudgeon judgment were obiter dicta.
22. In the Court's view, whatever the status in domestic law
of these remarks, it cannot fail to take into account such a
statement from the highest court of the land on matters so
pertinent to the issue before it (see, mutatis mutandis, the Pine
Valley Developments Ltd and Others v. Ireland judgment of
29 November 1991, Series A no. 222, pp. 23-24, para. 52).
23. It is true that since the Dudgeon judgment the
Attorney-General, who is vested with the power to institute or
discontinue prosecutions in the public interest, has followed a
consistent policy of not bringing criminal proceedings in respect
of private homosexual conduct on the basis that the relevant law
is a dead letter.
Nevertheless, it is apparent that this policy provides no
guarantee that action will not be taken by a future
Attorney-General to enforce the law, particularly when regard is
had to statements by Government ministers which appear to suggest
that the relevant provisions of the Criminal Code are still in
force (see paragraph 9 above). Moreover, it cannot be excluded,
as matters stand, that the applicant's private behaviour may be
the subject of investigation by the police or that an attempt may
be made to bring a private prosecution against him.
24. Against this background, the Court considers that the
existence of the prohibition continuously and directly affects
the applicant's private life. There is therefore an interference
(see the above-mentioned Dudgeon and Norris judgments, Series A
nos. 45 and 142, pp. 18-19, paras. 40-41, and pp. 17-18,
paras. 35-38).
B. The existence of a justification under Article 8 para. 2
(art. 8-2)
25. The Government have limited their submissions to
maintaining that there is no interference with the applicant's
rights and have not sought to argue that there exists a
justification under paragraph 2 of Article 8 (art. 8-2) for the
impugned legal provisions. In the light of this concession and
having regard to the Court's case-law (see the above-mentioned
Dudgeon and Norris judgments, pp. 19-25, paras. 42-62, and
pp. 18-21, paras. 39-47), a re-examination of this question is
not called for.
C. Conclusion
26. Accordingly, there is a breach of Article 8 (art. 8) in
the present case.
II. APPLICATION OF ARTICLE 50 (art. 50)
27. Under Article 50 (art. 50) of the Convention:
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party."
A. Damage
28. The applicant first submitted that he should be awarded
a sum to compensate him for the amount of time he has lost from
his work as a self-employed architect by participating in the
Strasbourg proceedings as well as an amount for mental stress and
suffering.
29. Both the Government and the Delegate of the Commission
considered that no award should be made.
30. The Court considers that, in the circumstances of the
case, the finding of a breach of Article 8 (art. 8) constitutes
sufficient just satisfaction under this head for the purposes of
Article 50 (art. 50).
B. Costs and expenses
31. The applicant also claimed 7,730 Cyprus pounds in respect
of legal fees and 2,836 Cyprus pounds by way of travelling,
subsistence and other out-of-pocket expenses connected with the
Strasbourg proceedings.
32. The Government considered that it would be fair and
reasonable to limit the award of costs to 1,000 Cyprus pounds but
had no objection to awarding the full amount claimed for
expenses.
33. Taking its decision on an equitable basis, as required by
Article 50 (art. 50), and applying the criteria laid down in its
case-law, the Court holds that the applicant should be awarded
4,000 Cyprus pounds in respect of fees together with the full
amount claimed by way of expenses.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there is a breach of
Article 8 (art. 8) of the Convention;
2. Holds unanimously that Cyprus is to pay the applicant,
within three months, the sum of 6,836 (six thousand,
eight hundred and thirty-six) Cyprus pounds in respect of
costs and expenses;
3. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
22 April 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Matscher;
(b) dissenting opinion of Mr Pikis.
Initialled: R.R.
Initialled: M.-A.E.
CONCURRING OPINION OF JUDGE MATSCHER
(Translation)
In this case I voted with the majority for a violation
because - in contrast to the position in the cases of Dudgeon v.
the United Kingdom (Series A no. 45, dissenting opinion,
p. 33) and Norris v. Ireland (Series A no. 142, dissenting
opinion, p. 24) - the applicant can claim to be a victim within
the meaning of Article 25 (art. 25).
However, in order to dispel any misunderstanding which
might arise from the reference in the present judgment to the
case of Costa v. The Republic (at paragraph 20 in the "As to the
law" part), which dealt with a different situation (correctly
described at paragraph 11 in the "As to the facts" part), I wish
to make clear how I interpret the Court's case-law in this area
(see the two cases cited above). In my view, Article 8 (art. 8)
will be infringed only where the law makes it a criminal offence
for consenting adults to commit homosexual acts in private - and
I would exclude from that rule a number of specific situations,
for instance the abuse of a relationship in which one party is
dependent on the other or carrying out such acts within a closed
community, such as a boarding-school or a barracks, etc.
DISSENTING OPINION OF JUDGE PIKIS
The foremost issue in these proceedings, made clear in
the judgment of the majority, is the state of Cyprus law
respecting the criminalisation of homosexual acts between
consenting male adults in private. That we had conflicting
statements from the parties concerning the effect of Cyprus law
on the subject is in itself indicative of the complexity of the
issue and a reflection of the difficulties inherent in the
identification and definition of the domestic law of Cyprus
following the introduction of the Constitution, coincidentally
upon the proclamation of its independence.
The Constitution of Cyprus ("the Constitution") came into
force simultaneously with the declaration of the country as an
independent State in 1960. Article 179 established the
Constitution to be the supreme law of the Republic and prohibited
the enactment of any law or decision repugnant to or inconsistent
with any of its provisions. An important aspect of the
Constitution is Part II, safeguarding the fundamental rights and
liberties of the individual. It is a comprehensive charter of
human rights modelled upon the Convention. Among the rights
guaranteed is that of respect for private life (Article 15.1)
founded on the provisions of Article 8 (art. 8) of the
Convention.
To avoid a legal vacuum in the domestic law of the land,
the Constitution saved, subject to qualification, the legislation
in force before independence. This was achieved by Article 188
of the Constitution. The adoption of laws predating the
Constitution was subject to an important and all-embracing
reservation designed to uphold the supremacy of the Constitution.
While saving laws antedating the Constitution, Article 188.1
expressly made their sustainment dependent upon the compatibility
of their provisions with the supreme law, the Constitution. The
saving was subject to the condition that such laws would be
construed and applied "... with such modification as may be
necessary to bring them into conformity with this Constitution".
The term "modification" is broadly defined by Article 188.5. It
includes not only amendment and adaptation which are incidental
to the power to modify but repeal as well.
As a result, colonial laws or any part of them that could
not be reconciled with or brought into conformity with the
Constitution by a legitimate process of modification, ceased to
be part of the law or survived in such form as to be compatible
with its provisions.
The function of adjusting colonial legislation to the
Constitution was entrusted to the judiciary to be exercised in
the context of the transaction of ordinary judicial business.
Article 188.4 provided:
"Any court in the Republic applying the provisions of any
such law which continues in force under paragraph 1 of
this Article, shall apply it in relation to any such
period, with such modification as may be necessary to
bring it into accord with the provisions of the
Constitution including the Transitional Provisions
thereof."
Inevitably the task of streamlining colonial laws with
the Constitution was a slow and laborious process, the more so
as the term "law" included, in addition to the statutory law,
rules and regulations too (Article 188.5).
As a consequence of Article 188 of the Constitution, a
multitude of laws and regulations were kept in force subject to
modification, including the 354 chapters of codified colonial
legislation of which the Criminal Code with its 374 sections
(creating an almost equal number of offences) was but one -
CAP.154. The absence of an authoritative pronouncement on the
conformity of any such law with the Constitution did not raise
any presumption about its compatibility. This is not to say that
litigants, including the Office of the Attorney-General, did not
frequently refer to the colonial statute book as a readily
available guide to the law on any given subject.
Article 15.1 of the Constitution safeguarded respect for
private life as a fundamental human right to the same extent and
with similar aspirations as Article 8 (art. 8) of the Convention.
The Convention itself, including Article 8 (art. 8), was adopted
as part of the domestic law of Cyprus by the enactment of
ratification Law 39/62; and inasmuch as this law incorporated
treaty obligations of Cyprus, its provisions had a superior force
to those of any other municipal law (Article 169.3 of the
Constitution), rendering inoperative any aspect of such
legislation that conflicted with the Convention. In sum,
legislation in force before independence had to conform as a
condition for its validity to the provisions of the Constitution,
including those of Article 15.1 and, as from 1962, it should not
run contrary to the Convention, including Article 8 (art. 8).
Moreover, Article 35 of the Constitution, an addendum to Part II
of the Constitution, imposed a duty on all authorities of the
State to secure within the limits of their respective competence
the efficient application of fundamental human rights.
Article 35 provides:
"The legislative, executive and judicial authorities of
the Republic shall be bound to secure, within the limits
of their respective competence, the efficient application
of the provisions of this Part."
The rights safeguarded by Article 15 could be
circumscribed only in the manner and for the purposes specified
in Article 15.2. The wording of Article 15.2 broadly corresponds
with that of Article 8 para. 2 (art. 8-2) of the Convention. It
is acknowledged that since independence no law was enacted aimed
or purporting to limit or curtail the right of respect for
private life; and no law was passed criminalising any form of
homosexual conduct between consenting adults in private. In
Police v. Hondrou and Another (decided on 6 April 1962, 3 Reports
of Supreme Constitutional Court, p. 82), the Supreme
Constitutional Court concerned itself with the prerequisites for
the limitation of fundamental human rights. The following
passage from the judgment of the court (delivered by
Forsthoff, P.), illuminates judicial approach to the subject:
"It is only the people of a country themselves, through
their elected legislators, who can decide to what extent
its fundamental rights and liberties, as safeguarded by
the Constitution, should be restricted or limited and
this principle is inherently contained in all
constitutions, such as ours, which expressly safeguard
the fundamental rights and liberties and adopt the
doctrine of the separation of powers."
It follows from the above that the criminalisation of
homosexual acts between consenting adults in private rested
solely and exclusively on the compatibility of the provisions of
section 171 of the Criminal Code with Article 15 of the
Constitution and, as from 1962, with Article 8 (art. 8) of the
Convention too.
The ambit of fundamental human rights incorporated in the
Convention (foreshadowed by the Universal Declaration of Human
Rights of 1948) was not immediately identifiable or recognisable.
This is certainly true of Cyprus. A number of prosecutions was
founded on section 171 and convictions recorded for homosexual
acts between consenting adults in private, without any question
having been raised concerning the compatibility of section 171
with Article 15.1 of the Constitution or Article 8 (art. 8) of
the Convention. It is no coincidence, I believe, but it is for
similar reasons that we had no authoritative pronouncement on the
effect of Article 8 (art. 8) and its implications respecting
homosexual acts between consenting adults in private before the
decision in Dudgeon v. the United Kingdom (judgment of
22 October 1981, Series A no. 45); a decision not so much
concerned with the breadth of the right of respect for private
life as with the acceptability of limitations to the right
introduced in the interest of the "protection of morals" or the
"protection of the rights and freedoms of others". Sexual
conduct, it was affirmed, whatever its nature between consenting
adults, is an inherent aspect of private life. The voluntary
sexual choices and pursuits of adults in private are their
exclusive business. Such is the breadth of the right of respect
for the private life of the individual in the area under
consideration.
The decision in Dudgeon was followed and applied in the
case of Norris v. Ireland with similar consequences (judgment of
26 October 1988, Series A no. 142).
The Cyprus Government submitted that they accept the
decisions of this Court in Dudgeon and Norris as definitive of
the ambit of the right of respect for private life with regard
to homosexual acts committed between consenting adults in private
and the inamenity to subject it to limitations; and they have not
sought to justify section 171 of the Criminal Code as a
legitimate limitation of the right. On the contrary, they take
the view that section 171 is incompatible with Article 15 of the
Constitution and on that account ceased to be part of the law of
Cyprus since independence. Their argument is as follows:
prosecutions mounted under section 171 of the Criminal Code
before the decision in Dudgeon, were founded on a misconception
of the implications of Article 15 of the Constitution and
Article 8 (art. 8) of the Convention. When stock was taken of
their effect from the decision in the Dudgeon case, they treated
section 171 as having ceased to be part of the law of Cyprus;
consequently, no prosecution was instituted ever since for
homosexual acts between consenting adults in private. The
changed attitude of the Attorney-General is not attributed to any
policy decision evolved within the context of his discretionary
powers but to a reassessment of the content and effect of the
right of respect for private life. In the light of the above,
they argued that the fear of applicant Modinos about a possible
violation or compromise of his rights safeguarded by Article 8
(art. 8) of the Convention has no foundation.
The applicant for his part, submitted that the fear and
agony he experiences about the perils to his right of respect for
his private life are real and referred to a series of facts that
reinforce them:
1. the omission of the State to formally abolish ssection
171 of the Criminal Code;
2. statements made by three successive Ministers of Justice
to the effect that they would not initiate legislation to
expunge section 171 from the Criminal Code or exclude
from its province homosexual acts between consenting
adults in private;
3. police investigations into alleged homosexual acts
between consenting adults in private. Here it must be
noted that the Government denied that any investigations
were conducted into homosexual acts between consenting
adults in private.
On the other hand, the Attorney-General's decision not to
prosecute is no certain assurance for respect of his right
safeguarded by Article 8 (art. 8) of the Convention. In effect,
his counsel argued, it represents a policy decision liable to
change at any future date. Furthermore, a private prosecution
cannot be ruled out, which is in itself a source of anxiety.
The fear of the applicant is made more oppressive still
by the decision of the Supreme Court of Cyprus in Costa v. The
Republic (2 Cyprus Law Reports, p. 120 [1982]), especially the
view taken that section 171 of the Criminal Code represents, in
the context of the moral fabric of Cyprus, a legitimate
limitation of the rights safeguarded by Article 15 of the
Constitution and Article 8 (art. 8) of the Convention.
Notwithstanding the vigour and lucidity with which the
parties argued their case, I consider it regrettable that neither
of them made reference to the case-law of the Supreme Court of
Cyprus subsequent to the decision in Costa, definitive of the
rights safeguarded by Article 15.1 of the Constitution and the
consequences attendant upon breach of fundamental human rights
safeguarded by the Constitution. I feel I can, indeed I ought
to, draw upon my knowledge of Cyprus case-law to which I drew the
attention of my brethren, in determining matters at issue in
these proceedings. After all, the cardinal issue, as indicated
at the outset of this judgment, revolves around the state of
Cyprus law, in particular whether it criminalises homosexual acts
between consenting adults in private.
After due consideration of the case, I have come to a
contrary decision from the remaining members of the Court. My
reasons for dissenting will become more readily understood if I
were to recount the basic reasons founding the decision of the
Court. The right of the applicant safeguarded by Article 8
(art. 8) of the Convention is imperilled by the continued
presence of section 171 in the Criminal Code. Ministerial
statements, indicating unwillingness to introduce legislation to
abolish section 171, signify governmental approval of its
preservation in the statute book. The pronouncements in Costa
cannot, whatever their juridical status, but be treated as
weighty judicial statements bearing upon the validity of
section 171. Moreover, the policy of the Attorney-General not
to prosecute cannot be divorced from the views of the incumbent
of the post and provides no certain assurance for the future.
Consequently, the risk of a prosecution by public authorities is
ever present, whereas a private prosecution cannot be ruled out;
therefore, the protection of this Court is necessary to sustain
the efficacy of the rights of the applicant safeguarded by
Article 8 (art. 8) of the Convention.
Below I explain my reasons for coming to a contrary
conclusion but, before doing so, I must note the existence of an
error in the findings of the Commission under the heading
"Relevant domestic law and practice". In paragraph 24 it is
stated that the offence in Costa "had been committed in private
in a tent but within the sight of another person who was
legitimately using the same tent". Thereafter, an extract is
quoted from the judgment of the Court in Costa, indicating the
reasons that justify in Cyprus the criminalisation of homosexual
acts between consenting adults in private, in the interests of
the protection of morals. Thus, the impression is conveyed that
the remarks of the Court in Costa were necessary for the
resolution of an issue involving homosexual acts in private.
Presumably, the Commission had identified the subject at issue
in the Costa case by reference to the headnote of the report that
erroneously omitted the word "not" between "committed" and "in
private" from the relevant text of the judgment. In the case of
Costa, the offence did not concern the commission of acts of
sodomy in private but in a tent temporarily set up to accommodate
soldiers during military exercises and inevitably subject to
overseeing by military authorities.
Now, the reasons for my dissent:
A. The presence of section 171 in the Criminal Code does not
of itself suggest that it continues to be part of the law. A
study of the case-law of Cyprus since independence indicates
that, notwithstanding the effluxion of thirty or more years since
independence, the course of reconciling colonial legislation with
the Constitution is by no means complete. This is exemplified
by two recent decisions of the Supreme Court of Cyprus: In The
United Bible Societies (Gulf) v. Hadjikakou (Civil Appeal
No. 7413, decided on 28 May 1990 - not yet reported in the
official series), it was decided that the relevant provisions of
the Civil Procedure Rules in force before independence, providing
for the service of process on non-Greek or Turkish litigants, in
English - the official language before independence - were
incompatible with the Constitution and on that account they
should be applied with necessary modification to bring them into
accord with the Constitution; an exercise resulting in the
substitution of the official languages of the State, Greek and
Turkish, for the English language. A more recent example still
is the case of Republic v. Samson (Civil Appeal No. 8532, decided
by the plenum of the Supreme Court on 26 September 1991 - not yet
reported in the official series), where it was held that the
provisions of the Prisons Regulation Law (part of the codified
law of Cyprus at the time of independence) - CAP.286, conferring
power on the Prisons Authorities to reduce sentence, should be
applied in a manner compatible with the doctrine of separation
of powers underlying the Constitution, making the judiciary the
sole arbiters of the punishment for breach of penal laws.
B. Not only Ministers have no say in the prosecution of
crime but in their official endeavours to ascertain the law they
must seek the advice of the Attorney-General. Article 113.2 of
the Constitution provides that the Attorney-General "shall" be
the legal adviser of the Executive, including Ministers.
Consequently, ministerial statements on the subject of
criminalisation of homosexual acts in private are in no sense
authoritative; moreover, they conflict with the view taken of the
law by the legal adviser of government so they can be ignored as
irrelevant.
The Attorney-General, it must be explained, is not a
member of the Government but an independent officer of the Cyprus
Republic, holding office on the same terms and conditions as
judges of the Supreme Court (Article 112.4 of the Constitution).
C. The decision in Costa does not establish a binding
judicial precedent concerning the compatibility of section 171
with Article 15 of the Constitution or as a legitimate limitation
of the right safeguarded thereby or under Article 8 (art. 8) of
the Convention, as part of the law of Cyprus (Law 39/62). In the
judgment of the Court in Costa, it is made clear that the
statements made and opinions expressed with regard to
criminalisation of homosexual acts in private were of no direct
relevance to the case under consideration; they were aimed to
furnish an answer to arguments raised, broadening the issue
before the Court. As such, they had no direct bearing on the
outcome of the case. The offence of which Costa was convicted
did not involve homosexual acts between consenting adults in
private.
Judicial statements having no direct bearing on the
resolution of matters at issue classify or qualify as obiter
dicta. Under the Cyprus system of judicial precedent (as in
other countries where the English system of judicial precedent
applies), obiter dicta do not constitute an authoritative
exposition of the law and as such are not binding. Only the
ratio of a case, that is the reasons directly and inextricably
supporting the outcome of the case, is binding in the sense of
stare decisis. A Cyprus court is not bound to follow judicial
pronouncements made obiter; of course, they do carry weight such
as is warranted by the source of their emanation and the
reasoning associated therewith. Hence the Attorney-General was
justified not to treat the decision in Costa as an authoritative
statement of the law concerning the applicability of section 171
of the Criminal Code, at any rate so far as it affected
consensual homosexual acts in private.
Subsequent decisions of the Supreme Court diminish to the
point of extinction any weight that might be attached to the
obiter pronouncements in Costa.
The decision of the plenum of the Supreme Court in Police
v. Georghiades (2 Cyprus Law Reports, p. 33 [1983]) is a landmark
in the case-law of Cyprus. The Court was asked to decide, upon
a question of law reserved for its opinion, whether evidence
deriving from the overhearing of a conversation between a
psychologist and his client by means of an electronic listening
and recording device was admissible in evidence upon a charge of
perjury preferred against the psychologist. The Supreme Court
was asked to decide, inter alia, whether the obtaining of the
evidence constituted a breach of the rights of the psychologist
safeguarded by Article 15 and, if the answer was in the
affirmative, whether it could be admitted in evidence. The Court
held unanimously that the evidence had been obtained in breach
of the rights safeguarded by Article 15 and Article 8 (art. 8)
of the Convention amounting to a right of privacy. It was the
first case since independence when the Supreme Court of Cyprus
made a comprehensive survey on the right of respect for private
life in the context of Article 15 of the Constitution and
Article 8 (art. 8) of the Convention. The following passage from
one of the two leading judgments in the case (given by myself)
highlights the ambit of the right guaranteed by Article 15:
"The right to privacy is regarded as fundamental because
of the protection it affords to the individuality of the
person, on the one hand and, the space it offers for the
development of his personality, on the other. Man is
entitled to function autonomously in his private life and
the right to privacy is aimed to shield him in this area
from public gaze ..."
Elsewhere in the same judgment, it is explained that:
"The right to privacy, safeguarded by Article 15, is
intended to establish the autonomy of the individual in
his private and family life ..."
In the same judgment it is explained that evidence
obtained or resulting from breach of fundamental human rights is
inadmissible under any guise or circumstances. The matter is put
thus:
"I am of the opinion that the basic rights safeguarded in
this part of the Constitution, those referring to
fundamental freedoms and liberties, are inalienable and
inhere in man at all times, to be enjoyed and exercised
under constitutional protection. Interference by anyone,
be it the State or an individual, is unconstitutional
and, a right vests thereupon to the victim to invoke
constitutional, as well as municipal, law remedies for
the vindication of his rights. The rights guaranteed by
Articles 15.1 and 17.1 fall in this category, aimed as
they are, to safeguard the dignity of man and ensure a
quality of life fit for man and his gifted nature."
The decision in Georghiades (supra) has been consistently
applied by the courts of Cyprus since 1983. In Merthodja v. The
Police (2 Cyprus Law Reports, p. 227 [1987]), the Supreme Court
ruled, on the authority of Georghiades, that a statement
amounting to a confession made by the accused (charged with the
offence of publishing information relating to the defence works
of the Republic contrary to section 50A of the Criminal Code) to
the Police Authorities while detained contrary to law was ipso
facto inadmissible as evidence stemming from a breach of the
fundamental right of liberty safeguarded by Article 11 of the
Constitution. More recently, in Police v. Yiallourou (Question
of Law Reserved No. 279, given on 7 April 1992), the Court held,
on the authority of Georghiades, that a telephone conversation
constituted a matter of private life, irrespective of the content
of the conversation. Consequently, telephone tapping constituted
a violation of the right and on that account a rule of absolute
exclusion of its content operated, making the evidence
inadmissible for any purpose whatsoever.
The case-law of the Supreme Court of Cyprus establishes
that the right to respect for private life, safeguarded by
Article 15 of the Constitution and Article 8 (art. 8) of the
Convention, should be given effect to in all its breadth and that
no attempt to whittle it down can be countenanced by the Court.
In the light of the aforesaid interpretation of the fundamental
right of respect for private life, it can be predicated that
section 171, to the extent that it criminalises homosexual acts
between consenting adults in private, is no part of the law
because of its repugnancy to Article 15 of the Constitution and
Article 8 (art. 8) of the Convention (Law 39/62). The absence
of a prosecution for such acts, for the past eleven or more
years, can justifiably be regarded as a reflection of this
reality.
D. Unlike the Norris case, the policy not to prosecute
homosexual acts between consenting adults in private does not
rest on the discretionary powers of the Attorney-General
exercised by reference to the facts of each individual case but
on the correct understanding that Cyprus law does not criminalise
such conduct.
E. The risk of private prosecution is inexistent. Unlike
the position in Ireland explained in the Norris case, there is
no actio popularis in Cyprus. Only the victim of a crime can
mount a private prosecution, as explained in the decision of the
Supreme Court in Ttofinis v. Theocharides (2 Cyprus Law Reports,
p. 363 [1983]). Only a party injured by criminal conduct is in
law entitled to raise a private prosecution. Adults engaged in
homosexual acts in private cannot, under any circumstances, be
regarded as the victims of the conduct in which they voluntarily
engage. The fact that no case of a private prosecution was cited
for homosexual acts between consenting adults in private is no
coincidence but a due reflection of the limitation of the right
to raise a private prosecution. And so far as I am aware, no
private prosecution was ever raised concerning homosexual acts
in private.
F. In the Norris case the point was made that the complaint
of the applicant must have a sound objective basis although
actual violation is not necessary in order to validate it. The
facts that the applicant was never harassed in his private
personal affairs and that he has been able to propagate the
causes of the "Liberation Movement of Homosexuals in Cyprus" of
which he is the President, without let or hindrance, are in
themselves suggestive of the absence of a valid basis for his
perceived fear of a likelihood of breach of his rights under
Article 8 (art. 8) of the Convention.