Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31106/96

by Stavros MARANGOS

against Cyprus

The European Commission of Human Rights sitting in private on

20 May 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 March 1996 by

Stavros MARANGOS against Cyprus and registered on 22 April 1996 under

file No. 31106/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

19 December 1996 and the observations in reply submitted by the

applicant on 17 February 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Cyprus. He was born in 1959 and

resides in Strovolos, Cyprus. In the proceedings before the Commission

he is represented by Mr. S. Drakos, an advocate practising in Nicosia.

The facts, as submitted by the parties, may be summarised as

follows:

In 1974 the applicant left Cyprus for the United Kingdom. After

he obtained the necessary O and A levels, he studied architecture at

the University of Sheffield between 1977 and 1981. In the autumn of

1982 he enrolled for a two-year post-graduate course at the same

university. However, on 24 May 1984, after the applicant had completed

his first year of studies, his passport expired. On 5 June 1984 it was

renewed by the Cyprus High Commission in London until 30 June 1984.

On 15 June 1984 the applicant arrived in Athens. The Consular

Department of the Embassy of Cyprus refused to renew his passport

referring to an "outstanding matter" he had with the Ministry of

Defence.

In the autumn of 1985 the applicant was admitted, after an

examination, to the Medical School of the University of Ioannina in

Greece. During his studies there, he received certain benefits reserved

for students with low income. The Cypriot authorities in Athens

continued to refuse to renew his passport.

On 22 September 1989 the applicant applied to the Ministry of

Defence for exemption from military service on the ground that he was

a permanent resident abroad. On 17 February 1990 his application was

refused.

On 14 August 1990 the applicant renewed his application

specifying that, as a homosexual, he could not live in Cyprus given

that country's criminal legislation. On 12 March 1991 he was exempted

from military service as a permanent resident abroad. He was notified

that, if the reasons for which he had been granted an exemption ceased

to exist, he would have to present himself to the competent authorities

with a view to being drafted in the army.

On 19 April 1992 the applicant asked the Ministry of Defence to

inform him of the reasons for the reversal of the decision of

17 February 1990. He also asked to be informed how many months he would

have to serve in the armed forces if he returned to Cyprus. On

10 September 1992 the Ministry of Defence informed the applicant that,

if he returned to Cyprus, he would be liable to a nine-month period of

military service in accordance with the provisions concerning the

repatriation of Cypriots who lived abroad.

On 29 September 1992 and 15 December 1992 the Ministry of Defence

informed the applicant that the original decision on his application

for exemption had been reversed in the light supplementary confidential

information concerning his father's place of residence between 1974 and

1991, which the Ministry had received from the applicant's mother and

another "trustworthy independent person". The applicant was further

informed that, if he settled in Cyprus permanently, he would be liable

to a nine-month period of military service.

On 20 January 1993 the applicant wrote to the Minister of Defence

disputing the official version and alleging that the real reason for

the reversal of the original decision was the information the applicant

had disclosed about his sexual preferences. The applicant sent a copy

of the letter to the Attorney General.

On 15 February 1993 the Attorney General requested information

from the Ministry of Defence. On 3 April 1993 the General Director of

the Ministry of Defence addressed a confidential letter to the Attorney

General informing him that the applicant's request for exemption had

initially been refused because it had been considered that the

applicant had lived abroad exclusively in order to study and that his

parents lived permanently in Cyprus. This decision was reversed after

the Ministry had been informed that the applicant's father was a

permanent resident abroad. The Director added that "(the applicant) has

declared ... that he is a homosexual and, as you know, homosexuals in

Cyprus are exempted from military service once their 'sickness' is

certified by the competent conscription board or the committee which

examines whether prospective conscripts are physically capable for

military service (somatiki ikanotis). As a result, it is up to (the

applicant) to invoke, if he so wishes, his homosexuality, if he

permanently settles in Cyprus and reports for the draft within the

time-limits provided by law. If he does not present himself he will be

considered a deserter and will be prosecuted in accordance with the ...

law."

On 17 March 1993 the applicant, who had in the meantime returned

to Cyprus, informed the Ministry of Defence that he intended to remain

there. On 8 June 1993 he received a call-up paper ordering him to

report for duty at a military training centre on 4 July 1993. On

23 June 1993 the applicant informed the Ministry of Defence that he did

not intend to comply with the order.

On 1 September 1993 the applicant was allowed to travel to

Greece. On 16 November 1993 he raised the matter of his liability to

military service with the Attorney General. On 22 December 1993 the

Office of the Attorney General informed the applicant that the issue

had been examined several times and that it had been decided that he

would have to present himself to the Conscription Board with the first

draft of 1994. The board would decide whether he was suitable for

military service and he would have to serve unless he was exempted on

grounds of health.

On 30 December 1993 the applicant received a call-up paper, which

he returned on 5 January 1994. On 4 April 1994 the Military Prosecutor

informed the applicant that no criminal proceedings were pending

against him.

On 19 May 1994 the applicant applied to the District Welfare

Office of Nicosia for welfare assistance.

On 4 August 1994 the International Association for the Protection

of Human Rights in Cyprus (hereinafter "Human Rights Association")

asked the Ministry of Defence to exempt the applicant from military

service, given that the National Guard did not accept in its ranks

persons who declared themselves to be homosexuals. The Human Rights

Association further requested the Ministry not to use the applicant's

homosexuality as a ground for declaring him psychiatrically unsuitable

for military service, as this would violate the Constitution and the

country's international obligations. The Human Rights Association urged

the Ministry to put an end to the uncertainty about a very serious

matter concerning the applicant's private life.

On 4 November 1994 the applicant was informed by the District

Welfare Office of Nicosia that he was not entitled to welfare

assistance because he had voluntarily made himself unemployed. On 6

November 1994 the applicant complained to the Ombudsman. He claimed,

inter alia, that he had been refused employment as an architect at the

Ministry of Defence because of his outstanding military service

obligations and, as a result, he was not prepared to accept a lower

paid job which would not be suitable for a person with his

qualifications.

On 21 November 1994 the Ministry of Defence informed the Human

Rights Association that the law made no provision exempting homosexuals

from the obligation to do military service. As a result, the army

authorities would have to submit the applicant to the usual tests to

determine whether he was physically capable for military service. The

Ministry further informed the Association that on 22 September 1994

criminal proceedings had been instituted against the applicant for

draft evasion.

On 2 December 1994 the Human Rights Association asked the

Ministry of Defence to clarify whether the committee which would

examine whether the applicant was suitable for military service would

also examine whether he was homosexual. If so, the Human Rights

Association wanted to know whether the applicant would be recruited,

despite his being a homosexual.

On 6 December 1994 the applicant lodged a complaint with the

Ombudsman concerning his treatment by the Ministry of Defence.

On 9 December 1994 the applicant applied again to the District

Welfare Office of Nicosia for welfare assistance. On 22 December 1994

the Ombudsman rejected the applicant's complaint concerning the initial

refusal of the District Welfare Office of Nicosia to grant him welfare

assistance.

On 2 January 1995 the Office of the Military Prosecutor assured

the applicant that no proceedings had been instituted against him.

On 8 February 1995 the Ministry of Defence replied to the Human

Rights Association that, although homosexuality is not considered a

disease, the competent committee examined the presence of personality

disorders.

On 21 February 1995 the applicant appeared on a television

broadcast concerning homosexuality.

On 24 February 1995 the Human Rights Association invited the

Ministry of Defence to clarify whether homosexuality was considered to

be a personality disorder and whether the National Guard would admit

a homosexual in its ranks.

On 27 February 1995 two Cyprus newspapers published a letter by

the "Group of Outraged Normal Citizens" concerning the television

broadcast of 21 February 1995. Although the applicant was not

specifically named in the letter, he considered that it was directed

against him, since it referred to a person who appeared on the

television broadcast of 21 February 1995 and whose life story

corresponded to that of the applicant. The applicant further considered

that some of the terms used in the letter, such as "unnatural sex" and

"unnatural sexual urges", insulted him and on 8 March 1995 he asked the

Attorney General to institute proceedings against its authors for

libel.

On 8 March 1995 the Ombudsman rejected the applicant's complaint

regarding his treatment by the Ministry of Defence.

On 20 March 1995 the Ministry of Defence informed the Human

Rights Association that homosexuality was not considered to constitute

a personality disorder and that the applicant would have to submit

himself to the same examination as every other prospective conscript.

On 22 March 1995 the Attorney General informed the applicant that

he was unwilling to institute proceedings against the authors of the

letter of 27 February 1995. He further indicated that, if the applicant

wished to institute civil proceedings, he remained free to consult a

lawyer of his own choice. On 31 March 1995 the applicant once again

wrote to the Attorney General asking him to institute proceedings

against the authors of the letter, since the applicant lacked the

necessary means for instituting proceedings himself and there was no

legal aid system in Cyprus.

On 10 April 1995 the applicant was referred by the District

Unemployment Office of Nicosia for an interview to the Department of

Research and Statistics (Tmima Statistikis ke Erevnon) which was

looking for temporary personnel. The examiner gave the applicant an

overall mark of 37/50, having marked him 7/10 for his personality and

general appearance. The examiner noted that "it was in poor taste that

(the applicant) wore an earring. I would have rejected him for that

reason alone. In addition, our man is a bit of an artistic type." The

applicant was not hired. Successful candidates obtained better overall

marks than the applicant.

On 3 May 1995 the applicant lodged a complaint with the Ombudsman

concerning the failure of the Department of Research and Statistics to

employ him.

In June 1995 the applicant received another call-up paper.

On 20 June 1995 the applicant applied for welfare assistance for

the third time.

On 3 July 1995 the Office of the Military Prosecutor once again

assured the applicant that no proceedings had been instituted against

him. On 14 July 1995 the Ministry of Defence informed the applicant

that he could not leave the country because he had not submitted

himself to the draft.

On 26 July 1995 the Ombudsman rejected the applicant's complaint

concerning the Department of Research and Statistics. The Ombudsman

considered that the examiner's note was rather unfortunate and, in

other circumstances, it could have constituted an unjustified insult

to the applicant's personality. However, his candidature had been

examined by a collective organ, which had the right to take account of

his appearance, since the temporary personnel to be recruited would

come into contact with all strata of Cypriot society.

On 1 August 1995 the Office of the Military Prosecutor assured

the applicant once again that no proceedings had been instituted

against him.

On 30 August 1995 the Human Rights Association asked the Ministry

of Defence to explain why no criminal proceedings had been instituted

against the applicant for draft evasion and why the Ministry had failed

to provide a clear reply as to whether homosexuals were admitted to the

National Guard. The Association further raised the issue of the

applicant being denied permission to travel abroad.

On 5 September 1995 the Ministry of Defence informed the

applicant that, further to a letter the Attorney General had addressed

to them on 4 September 1995, they had decided to give the applicant

permission to travel abroad.

On 14 September 1995 the District Welfare Office of Nicosia

considered that the applicant's income did not render him eligible for

welfare assistance.

On 16 September 1995 the applicant applied to the Attorney

General for legal aid in order to sue the Republic for damages for the

treatment to which he had been subjected by the authorities. On

22 September 1995 his application was rejected.

On 22 September 1995 the applicant was acquitted of criminal

charges brought against him for having failed to pay certain social

security contributions as a self-employed person in 1993. The applicant

had been represented by legal aid counsel in the proceedings.

On 21 November 1995 the applicant lodged a complaint with the

Ombudsman concerning the decision of 14 September 1995 of the District

Welfare Office of Nicosia.

On 30 November 1995 the applicant received a new call-up paper.

On 19 January 1996 the Ombudsman considered that the applicant

was not entitled to welfare assistance, because his income exceeded by

16 Cyprus pounds the basic subsistence allowance.

Relevant domestic law and practice

a. Sections 171, 172 and 173 of the Criminal Code of Cyprus provide

as follows:

"171. Any person who -

(a) has carnal knowledge of any person against the order

of nature; or

(b) permits a male person to have carnal knowledge of him

against the order of nature, is guilty of a felony and

is liable to imprisonment for five years.

172. Any person who with violence commits either of the

offences specified in the last preceding Section is

guilty of a felony and liable to imprisonment for

fourteen years.

173. Any person who attempts to commit either of the

offences specified in Section 171 is guilty of a

felony and is liable to imprisonment for three years,

and if the attempt is accompanied with violence he is

liable to imprisonment for seven years."

In its Modinos v. Cyprus judgment of 22 April 1993 (Eur. Court

HR, Series A no. 259) the European Court of Human Rights found that the

prohibition of male homosexual conduct in private between adults

continuously and directly affected the private life of the applicant

in that case, who was a homosexual, and gave rise to a violation of

Article 8 of the Convention.

b. On 2 June 1995 a Cypriot newspaper carried an article on army

practices concerning homosexuals. It was reported that, in the course

of the examinations to which all prospective conscripts were subjected,

homosexuals were picked out and were exempted from military service on

the ground that they had "psychological problems".

The applicant has submitted a certificate of temporary exemption

from military service issued on 19 July 1984 to Mr. S. The certificate

indicates that Mr. S is unsuitable (akatallilos) for military service

because he suffers from a sexual perversion, being a passive

homosexual.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention about

the prohibition of male homosexual conduct in private between adults

in Cyprus.

2. The applicant also complains under Articles 3, 8, 14 and 17 of

the Convention about the manner in which he has been generally treated

by the Cypriot authorities, which he attributes to the fact that he is

a homosexual.

3. The applicant further complains of a violation of Article 3 para.

2 of Protocol No. 4 in that, while he was in Greece, the Cypriot

consular authorities had refused him a passport and, as a result, he

could not return to Cyprus.

4. Moreover, the applicant complains under Article 2 para. 2 of

Protocol No. 4 that, during a certain period after his return to

Cyprus, he was not allowed to leave the country.

5. Finally, the applicant complains under Articles 6 para. 1 and 13

of the Convention of his inability to institute court proceedings, not

having the necessary means and there being no legal aid in Cyprus.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 March 1996 and registered

on 22 April 1996.

On 14 October 1996 the Commission decided to communicate the

complaint concerning the prohibition of male homosexual conduct in

private between adults to the respondent Government.

The Government's written observations were submitted on

19 December 1996. The applicant replied on 17 February 1997.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention of the prohibition of male homosexual conduct in private

between adults in Cyprus.

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."

The respondent Government refer to the Modinos v. Cyprus judgment

of 22 April 1993 (Eur. Court HR, Series A no. 259) and accept that the

continued existence on the statute book of the prohibition of

homosexual conduct in private between adults gives rise to an

interference with the applicant's right to respect for his private life

under Article 8 para. 1 (Art. 8-1) of the Convention, notwithstanding

the fact that the applicant has never been charged and prosecuted under

the relevant provisions of the Criminal Code. A bill designed to ensure

compliance with the above-mentioned Modinos judgment has been brought

to the House of Representatives, but its adoption has been delayed

because of the general election in 1995.

The applicant points out that the bill has not yet been adopted.

In the light of the parties' observations, the Commission

considers that this part of the application raises serious questions

of fact and law which are of such complexity that their determination

should depend on an examination of the merits. It cannot, therefore,

be regarded as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground

for declaring it inadmissible has been established.

2. The applicant complains under Articles 3, 8, 14 and 17

(Art. 3, 8, 14, 17) of the Convention about the manner in which he has

been generally treated by the Cypriot authorities, which he attributes

to the fact that he is a homosexual.

The Commission notes that the applicant claims that, although he

is indigent, the Attorney General refused to grant him legal aid in

order to sue the Republic for damages for the treatment to which he had

been subjected by the authorities. However, the Commission does not

consider it necessary to decide whether the applicant can be dispensed

from the obligation to exhaust domestic remedies under Article 26

(Art. 26) of the Convention. Even assuming that he can, this part of

the application must be declared inadmissible as manifestly ill-

founded.

Thus, the Commission considers that the applicant has not been

subjected to treatment which has attained the minimum level of severity

required before a breach of Article 3 (Art. 3) of the Convention can

be established (Eur. Court HR, Ireland v. the United Kingdom judgment

of 18 January 1978, Series A no. 25, p. 65, para. 162). Therefore, no

appearance of a violation of that provision is disclosed.

As regards Article 8 (Art. 8) of the Convention, the Commission

notes that the applicant complains that homosexuals are excluded from

the army after they have been certified as "physically incapable" by

the Conscription Board and that he was refused a job with the

Department of Research and Statistics because of his appearance.

However, the Commission recalls that the Convention does not guarantee

the right to serve in the armed forces or to be recruited in public

sector employment. In any event, even assuming that the authorities'

conduct could give rise to an issue under Article 8 para. 1 (Art. 8-1)

of the Convention, in the particular circumstances of the case there

could be no interference with the right to respect for private life.

The Commission notes in this connection that the applicant has never

appeared before the Conscription Board. Moreover, it has not been

established that, if the applicant's appearance had not been taken into

consideration, he would have been offered a temporary contract with the

Department of Research and Statistics. As a result, no appearance of

a violation of Article 8 (Art. 8) of the Convention is disclosed.

Moreover, the Commission considers that it has not been

established that the applicant has been discriminated against because

of his sexual preferences in the enjoyment of any rights guaranteed

under the Convention, nor have the authorities relied on a provision

in the Convention to destroy any of the rights contained therein or

limit them to a greater extent than provided for in the Convention. As

a result, no appearance of a violation of Articles 14 and 17

(Art. 14, 17) of the Convention is disclosed either.

It follows that this part of the application must be rejected as

manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant complains of a violation of Article 3 para. 2 of

Protocol No. 4 (P4-3-2), which guarantees the right to enter the

territory of the State of which one is a national, in that, while he

was in Greece, the Cypriot consular authorities had refused him a

passport.

The Commission is prepared to assume that the applicant has

complied with the requirements of Article 26 (Art. 26) of the

Convention, but, in any event, the applicant has not substantiated his

allegation that, because of the refusal of the Cypriot consular

authorities in Greece to issue him with a passport, he could not return

to his country of origin. It follows that this part of the application

must be rejected as manifestly ill-founded under Article 27 para. 2

(Art. 27-2) of the Convention.

4. The applicant complains under Article 2 para. 2 of Protocol No.

4 (P4-2-2) that, during a certain period after his return to Cyprus,

he was not allowed to leave the country.

The Commission is again prepared to assume that the applicant has

complied with the requirements of Article 26 (Art. 26) of the

Convention. The Commission recalls that Article 2 para. 2 of Protocol

No. 4 (P4-2-2), which guarantees the right to leave any country,

including one's own, must be read subject to the third paragraph of

Article 2 of Protocol No. 4 (P4-2) which provides as follows:

"No restrictions shall be placed on the exercise of these rights

other than such as are in accordance with law and are necessary

in a democratic society in the interests of national security or

public safety, for the maintenance of ordre public, for the

prevention of crime, for the protection of health or morals, or

for the protection of the rights and freedoms of others."

The Commission notes that the applicant was not allowed to leave

Cyprus because he had not complied with his military service

obligations. The applicant has not submitted that this was not "in

accordance with law". Moreover, the Commission considers that it could

be considered necessary in a democratic society for the maintenance of

ordre public as envisaged in Article 2 para. 3 of Protocol No. 4

(P4-2-3). It follows that no appearance of a violation of Article 2

para. 2 of Protocol No. 4 (P4-2-2) is disclosed. As a result, this part

of the application must be rejected as manifestly ill-founded under

Article 27 para. 2 (Art. 27-2) of the Convention.

5. The applicant complains under Articles 6 para. 1 and 13

(Art. 6-1, 13) of the Convention of his inability to sue the Republic

for damages in respect of the manner in which he had been treated by

the authorities. He submits in this connection that he does not have

the necessary means and that there is no legal aid in Cyprus.

However, the Commission recalls that Article 6 para. 1

(Art. 6-1) of the Convention does not always guarantee legal aid in

civil cases. Even where legal aid may be available for certain types

of civil action, it is reasonable to impose conditions on its

availability involving, inter alia, the financial situation of the

litigant or the prospects of success of the proceedings (No. 8158/78,

Dec. 10.7.80, D.R. 21 p. 95; No. 10871/84, Dec. 10.7.86, D.R. 48 p.

154; No. 10594/83, Dec. 14.7.87, D.R. 52 p. 158). Since the applicant

has not shown that the intended action would have had any prospects of

success, no appearance of a violation of Article 6 para. 1

(Art. 6-1) is disclosed.

Moreover, the Commission recalls that the right to an effective

remedy under Article 13 (Art. 13) can only be claimed by someone who

has an arguable claim to be a victim of a violation of a right

recognised by the Convention (No. 10427/83, Dec. 12.5.86, D.R. 47 p.

85). However, the applicant has no arguable claim to be a victim of a

violation of Articles 3, 8, 14 and 17 (Art. 3, 8, 14, 17) of the

Convention because of the manner in which he had been treated by the

authorities. It follows that no appearance of a violation of Article

13 (Art. 13) is disclosed either.

As a result, this part of the application must be rejected as

manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the

Convention.

7. The applicant finally complains under Articles 6 para. 1 and 13

(Art. 6-1, 13) of the Convention about his inability to institute

proceedings for libel against the authors of the letter which appeared

in the Cypriot press on 27 February 1995.

The Commission notes that, although the Attorney General refused

to institute proceedings in this connection on 22 March 1995, the

applicant did not complain to the Commission before 11 March 1996. It

follows that this complaint has not been lodged within the six-month

period provided for under Article 26 (Art. 26) of the Convention. This

part of the application must be, therefore, rejected in accordance with

Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE THE COMPLAINT CONCERNING THE CONTINUED

CRIMINAL PROHIBITION OF HOMOSEXUAL ACTS BETWEEN ADULTS IN PRIVATE,

without prejudging the merits of the case;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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MARANGOS v. CYPRUS

MARANGOS v. CYPRUS