Lexploria

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

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NORRIS v. IRELAND

NORRIS v. IRELAND

LEXI