Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15070/89

by Alecos MODINOS

against Cyprus

The European Commission of Human Rights sitting in private

on 6 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 May 1989

by Alecos Modinos against Cyprus and registered on 31 May 1989

under file No. 15070/89;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to the written observations submitted by the

respondent Government on 17 January 1990;

Having regard to the written observations in reply submitted

by the applicant on 6 April 1990;

Having regard to the parties' oral submissions at the hearing

on 6 December 1990;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the parties may be

summarised as follows:

The applicant is a Cypriot citizen, born in 1933. He is an

architect, residing in Nicosia. In the proceedings before the

Commission the applicant is represented by Mr. Achilles Dimitriades,

a lawyer practising in Nicosia.

The applicant is a homosexual and the president of the

"Liberation Movement of Homosexuals in Cyprus".

In a number of letters addressed to the President of the

Republic of Cyprus, to the President of the Parliament and to the

Minister of Justice between June 1988 and February 1989, the applicant

requested that legislation in Cyprus prohibiting male homosexual

activity be amended. No answer was given to his requests.

Sections 171, 172 and 173 of the Criminal Code of Cyprus

provide as follows:

"171. Any person who -

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

of nature; or

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

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

is liable to imprisonment for five years.

172. Any person who with violence commits either of the

offences specified in the last preceding Section is

guilty of a felony and liable to imprisonment for

fourteen years.

173. Any person who attempts to commit either of the offences

specified in Section 171 is guilty of a felony and is

liable to imprisonment for three years, and if the attempt

is accompanied with violence he is liable to imprisonment

for seven years."

Article 15 of the Constitution of Cyprus reads as follows:

"1. Every person has the right to respect for his private and

family life.

2. There shall be no interference with the exercise of this

right except such as in accordance with the law and is necessary

only in the interests of the security of the Republic or the

constitutional order or the public safety or the public order or

the public health or the public morals or for the protection of

the rights and liberties guaranteed by this Constitution to any

person."

In a decision of 8 June 1982 (Yiannakis Panayiotou Costa v.

the Republic) the Supreme Court of Cyprus examined the question

of the compatibility of the above provisions with Article 15 of

the Constitution of Cyprus, Article 8 of the Convention and the

jurisprudence of the European Court of Human Rights. The Supreme

Court held the following:

"In ascertaining the nature and scope of morals and the

degree of the necessity commensurate to their protection, the

jurisprudence of the European Court and the European Commission

of Human Rights has already held that the conception of morals

changes from time to time and from place to place, and that there

is no uniform European conception of morals; that, furthermore,

it has been held that state authorities of each country are in a

better position than an international judge, to give an opinion

as to the prevailing standards of morals in their country; in

view of these principles this Court has decided not to follow the

majority view in the Dudgeon case, but to adopt the dissenting

opinion of Judge Zekia, because it is convinced that it is

entitled to apply the Convention and interpret the corresponding

provisions of the Constitution in the light of its assessment of

the present social and moral standards in this country;

therefore, in the light of the aforesaid principles and viewing

the Cypriot realities, this Court is not prepared to come to the

conclusion that Section 171 (b) of our Criminal Code, as it

stands, violates either the Convention or the Constitution, and

that it is unnecessary for the protection of morals in our country.

By adopting the dissenting opinion of Judge Zekia this

Court should not be taken as departing from its declared attitude

that for the interpretation of provisions of the Convention,

domestic tribunals should turn to the interpretation given by the

international organs entrusted with the supervision of its

application, namely, the European Court and the European

Commission of Human Rights."

COMPLAINTS

The applicant complains that the maintenance in force of

legislation prohibiting male homosexual activity constitutes a

continuous interference with his right to respect for his private

life. He refers to the case-law of the European Court of Human Rights

(Dudgeon judgment of 22 October 1981, Series A no. 45; Norris

judgment of 26 October 1988, Series A no. 142) and invokes Article 8

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 May 1989 and registered

on 31 May 1989.

On 2 October 1989, the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the application before 8 December 1989.

After having obtained an extension of the above time-limit,

the Government submitted their observations on 17 January 1990.

The applicant submitted observations in reply on 6 April 1990.

On 8 June 1990 the Commission decided to invite the parties to

appear before it at a hearing on the admissibility and merits of the

application.

The hearing was held on 6 December 1990. At the hearing the

parties were represented as follows:

For the Government

Mr. Michael A. TRIANTAFYLLIDES Attorney General of the Republic, Agent

Mr. Rallis GAVRIELIDES Senior Counsel of the Republic, counsel

Mrs. Leda KOURSOUMBA Senior Counsel of the Republic, counsel

Miss Daphne PAPADOPOULOU Counsel of the Republic, counsel

Mrs. Anny CARIOLOU Administrative Officer,

Ministry of Justice, adviser

For the applicant

Mr. Achilleas DEMETRIADES Barrister-at-law,

representative of the Applicant

Mr. Lellos DEMETRIADES Barrister-at-law, counsel

The applicant was present at the hearing.

THE LAW

The applicant complains that the maintenance in force of

legislation prohibiting male homosexual activity constitutes an

unjustified continuing interference with his right to respect for

private life. He invokes Article 8 (Art. 8) of the Convention which

reads as follows:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Government first submit that the applicant cannot claim to

be a victim of a violation of the above provision within the meaning

of Article 25 (Art. 25) of the Convention. In this respect they

submit that the challenged provisions of the Criminal Code are in

practice no longer in force. The Government observe that Sections

171, 172 and 173 of the Criminal Code are in conflict with Article 15

of the Constitution of Cyprus, the text of which is almost identical

to that of Article 8 of the Convention. They point out that no

prosecution for homosexual activities in private between consenting

male adults has taken place since the Dudgeon judgment of the European

Court of Human Rights and note that the practice of the Attorney

General is not to institute such a prosecution and to discontinue any

eventual private prosecution. Moreover, the Government submit that a

Parliamentary Commission has taken steps to amend the legislation

complained of.

The applicant notes that Sections 171 - 173 of the Criminal

Code are still in force and have been applied by Cypriot courts over

the last thirty years. He submits that there is no indication that

the Government have the intention of changing the legislation. On the

contrary, the competent Ministers stated on several occasions that the

legislation prohibiting male homosexual activities will remain

unaffected. Moreover, the Attorney General's practice cannot be

regarded as a sufficient guarantee against possible prosecution. This

practice may change and in any event it does not prevent private

prosecution.

The Commission recalls that in its judgment in the Marckx case

the European Court of Human Rights held the following:

"Article 25 (Art. 25) of the Convention entitles individuals

to contend that a law violates their rights by itself,

in the absence of an individual measure of implementation,

if they run the risk of being directly affected by it."

(Eur. Court H.R., Marckx judgment of 13 June 1979, Series A

no. 31 p. 13 para. 27).

Moreover, the Commission has had regard to the jurisprudence

of the Court according to which the very existence of a legislation

may continuously affect the exercise of a right under the Convention

(cf. Eur. Court H.R. Dudgeon judgment of 22 October 1981, Series A no.

45, p. 18 para. 41) even in the absence of an individual measure of

implementation (cf. Eur. Court H.R. Johnston and Others judgment of

18 December 1986, Series A no. 112, p. 21 para. 42) and even where the

risk of such an implementation is minimal (cf. Eur. Court H.R. Norris

judgment of 26 October 1988, Series A no. 142, p. 16 para. 33).

The Commission notes that the challenged legislative

provisions have not been abolished and that the applicant, whose

homosexual tendencies have not been contested by the Government, may

be affected by the impugned prohibition of homosexual acts. Having

regard to the above jurisprudence of the Court, the Commission finds

that the applicant may claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention.

The Government further object that the applicant has not

exhausted the domestic remedies at his disposal according to the

generally recognised rules of international law. They note that under

Article 29 of the Constitution "every person has the right ... to

address written requests or complaints to any competent public

authority and to have them decided expeditiously". According to

para. 2 of the above constitutional provision "where no such decision

is notified to the (interested) person ... such person may have

recourse to a competent court in the matter of such request or

complaint". Moreover, the Government submit that it was open to

the applicant to request that his "Liberation Movement of Homosexuals

in Cyprus" be registered as an association under Law 57/1972. Had

such a request been rejected by the competent authority, that is the

Minister of Interior, the applicant could have challenged this

decision before the Supreme Court. This court would then examine the

very issue of the compatibility of the provisions of the criminal code

with the Constitution and the Convention.

The applicant submits that, having regard to the judgment of

the Supreme Court in the Costa v. the Republic case, he must be

regarded as having exhausted the domestic remedies according to the

generally recognised rules of international law.

The Commission notes that in its judgment Costa v. the

Republic the Supreme Court expressly stated that, having regard to the

social and moral standards in Cyprus, the legislation complained of

does not infringe either the Constitution or the Convention. In this

respect the Commission recalls that an applicant who shows, from

decided cases, that the point at issue has already been decided by the

competent domestic authority is exempted, according to the generally

recognised rules of international law, from the obligation to exhaust

remedies (cf. No. 7630/76, Dec. 6.12.79, D.R. 19 p. 113 ; No. 8346/78,

Dec. 4.3.80, D.R. 19 p. 233).

In the light of the above considerations the Commission finds

that the applicant has complied with the requirement of Article 26

(Art. 26) of the Convention as to the exhaustion of domestic remedies

and that the Government's objection must be rejected.

As regards the merits of the complaint the Government submit

that the legislative provisions complained of apply to limited cases

which do not concern homosexual activities in private. They submit

that such a limited implementation must be regarded as necessary in a

democratic society since it aims in particular at the protection of

health and morals.

The applicant submits that the very existence of the

challenged provisions in the Criminal Code creates to him a constant

fear of prosecution. He submits that this constitutes an interference

with his right to respect for his private life which has no

justification in a democratic society.

The Commission has carried out a preliminary examination of the

parties' submissions under Article 8 (Art. 8) of the Convention and

finds that they raise important issues of law and fact. The

application cannot, therefore, be rejected as manifestly ill-founded

and must be declared admissible, no other ground for declaring it

inadmissible having been established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE, without in any

way prejudging the merits.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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MODINOS v. CYPRUS

MODINOS v. CYPRUS

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