Resolution ResDH (2001)152 concerning the judgment of the European Court of Human Rights of 22 April 1993 in the case of Modinos against Cyprus

(Adopted by the Committee of Ministers on 17 December 2001 at the 775 th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”), Having regard to the judgment of the European Court of Human Rights in the Modinos case delivered on 22 April 1993 and transmitted the same day to the Committee of Ministers; Recalling that the case originated in an application (No. 15070/89) against Cyprus, lodged with the European Commission of Human Rights on 25 May 1989 under former Article 25 of the Convention by Mr Alecos Modinos , a Cypriot national, and that the Commission declared admissible the complaint that the prohibition of male homosexual activity constituted a continuing interference with his right to respect for private life; Recalling that the case was brought before the Court by the Commission on 21 February 1992; Whereas in its judgment of 22 April 1993 the Court: - held, by eight votes to one, that there had been a violation of Article 8 of the Convention; - held, unanimously, that the government of the respondent state was to pay the applicant, within three months, 6 836 Cyprus pounds in respect of costs and expenses; - dismissed unanimously the remainder of the claim for just satisfaction; Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 22 April 1993, having regard to Cyprus’s obligation under former Article 53 of the Convention to abide by it; Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution; Noting with satisfaction that the Republic of Cyprus has taken note of the concerns expressed in the Committee of Ministers regarding the first amendment of the Criminal Code of 1998 by adopting a further amendment in 2000 and by keeping the area under review; Having satisfied itself that on 28 May 1993, within the time-limit set, the government of the respondent state paid the applicant the sum provided for in the judgment of 22 April 1993, Declares, after having taken note of the information supplied by the Government of Cyprus, that it has exercised its functions under former Article 54 of the Convention in this case.

Appendix to Resolution ResDH (2001)152

Information provided by the Government of Cyprus during the examination of the Modinos case by the Committee of Ministers

Following the judgment of the European Court of Human Rights in this case, the text thereof was disseminated to all the courts and authorities concerned, in particular the prosecutor’s office, in order to ensure as quickly as possible that the requirements of the Convention hence taken into account so as to prevent as far as possible new similar violations awaiting the necessary legislative changes. A first law No. 40(1) of 1998 was adopted on 21 May 1998 amending the impugned section 171 of the Cyprus Criminal code. A further amendment to this section came into force on 16 June 2000 (under Amending Law 77 (1)/2000) notably introducing further clarifications as to the limits of the individual’s private sphere. The new statutory definition given by the Criminal Code in section 171 now reads as follows: (1) Sexual intercourse between males constitutes a felony punishable with five years imprisonment if it is performed in public, or, where one of the persons is under the age of eighteen, whatever the place of its performance; (2) Sexual intercourse between males constitutes a felony punishable with imprisonment for seven years, if it is performed by abusing a relationship of dependency derived from any service, or by an adult seducing a person under the age of eighteen, or for the purposes of gain or by profession. (3) For the purposes of this section the term “in public” means a place that can be viewed by the public or to which the public are entitled or permitted to have access with or without any condition. The Government of the Republic of Cyprus considers that the measures taken will prevent the repetition of any new violations similar to that found in this case and that it has therefore fulfilled its obligations under former Article 53, of the Convention. The government notes, however, the developments of the European Court of Human Rights’ case-law in this area and the ongoing discussion in various fora , including the Parliamentary Assembly of the Council of Europe. As the Convention has to be interpreted in the light of current circumstances, the Government will keep the need for appropriate further developments under review.