DISSENTING OPINION OF MR. L. LOUCAIDES JOINED BY

         MM. S. TRECHSEL, M. A. NOWICKI AND I. CABRAL BARRETO

      I regret that I am unable to agree with the opinion of the

majority of the Commission that there has been no violation of

Article 7 para. 1 of the Convention.

      I agree with the majority that by 1990 the general immunity

afforded to a husband in respect of prosecution for rape of his wife

had been subject to certain exceptions ie. where a court order

affecting the relationship of the parties had been made or where the

parties to a marriage had entered into a separation agreement. However,

the general principle continued to exist: as is apparent from the

judgment of Mr. Justice Rougier in R. v J. as recently as November 1990

who found that the accused in the case before him should not be

convicted ex post facto of rape of his wife .

       The conviction of the applicant in this case is due to the

judicial determination of the case of R. v. R. up to the Court of

Appeal. The trial judge in R. v. R. had held, in rejecting the

defendant husband's submission that he fell within the marital

immunity, that in any event even if the immunity did continue to exist,

there was sufficient evidence to indicate an implied agreement to a

separation by the parties which would bring the case outside the

immunity. He also considered that the common law recognised an

exception to the concept of marital immunity where there had been a

withdrawal of either party from cohabitation, accompanied by a clear

indication that consent to sexual intercourse had been terminated.

However before the case of R. v. R. there had been no other authority

suggesting that an implied agreement between the parties would be

sufficient or that a wife could by unilateral action withdraw her

consent. Indeed there were judicial dicta to the contrary (see

paras. 33-34).

      In the case  of this applicant, his submission as to the

applicability of the immunity was not rejected on the basis that he

fell within one of the exceptions. Even assuming that, in light of the

ruling at first instance in R. v. R., the exceptions could be construed

as including circumstances where there was an implied agreement or

where the wife had unilaterally withdrawn from cohabitation, at the

same time  clearly indicating the withdrawal of consent to intercourse,

it is apparent that the circumstances of the applicant's case fell

outside such exceptions. At the time of the incident, the applicant and

his wife were co-habiting and it would have been difficult to argue

that any unequivocal agreement or incontrovertible step towards

separation had taken place.

      As pointed out by the applicant, this was the first case where

a husband still co-habiting with his wife was convicted of rape. The

immunity was held not to apply to him because of the decision of the

Court of Appeal, subsequently upheld by the House of Lords, that the

immunity was an anachronistic and an offensive fiction which should be

swept away. In so holding, I find that an immunity based on a historic

legal presumption as to one ingredient of the offence of rape - lack

of consent - was definitively removed to the applicant's detriment.

      I do not consider that the abolition of this immunity in its

entirety can be construed as mere clarification of the existing

elements of an offence or as any adaptation of such elements to new

circumstances which can reasonably be brought under the original

concept of the offence. In the case of the applicant, the removal of

the immunity resulted in the application of the criminal law to conduct

which had never previously constituted and offence. This step would

have not been reasonably foreseeable to the applicant even with the

assistance of legal advice.

      I have considered whether nevertheless the facts of this case

fall within the scope of Article 7 para. 2 as involving the punishment

of a person for an act which at the time at which it was committed was

criminal according to the general principles of law recognised by

civilised nations. The travaux préparatoires indicate that this

provision in the Convention was intended to cover prosecution of crimes

against humanity in the context of the post-Second World War Nuremberg

trials. While it cannot be excluded that other conduct might fall

within the ambit of the paragraph, I am of the opinion that there is

insufficient general consensus as regards marital rape, similar

immunities existing, or existing until recently in a number of common

law jurisdictions.

      Consequently, I find that the applicant was convicted of conduct

which did not constitute a criminal offence at the time at which it was

committed. I would emphasise that this finding does not in any way

condone the conduct in question or validate the marital immunity which

husbands were afforded by Hale's principle (see para. 29 above). I

would subscribe unconditionally to the sentiments expressed by the

Court of Appeal and House of Lords in the case of R. v. R. as regards

the offensive nature of the principle. Prior to its removal, an issue

might indeed have arisen as regards a failure on the behalf of the

United Kingdom to fulfill a positive obligation to ensure respect for

a wife's rights. The 1990 Law Commission Working  Paper provisionally

proposed abolition of the principle by way of legislation. The

principle was instead abolished by the courts with a retrospective

effect which is not compatible with the requirements of

Article 7 para. 1 of the Convention.

      I conclude that there has been on the facts of this case a

violation of Article 7 para. 1 of the Convention.

                              Appendix I

                      HISTORY OF THE PROCEEDINGS

Date                  Item

________________________________________________________________

29.03.92              Introduction of the application

18.06.92              Registration of the application

Examination of admissibility

12.10.92              Commission's decision to invite the parties to

                      submit observations on the admissibility and

                      merits

29.01.93              Government's observations

31.03.93              Applicant's reply

08.04.93              Commission's decision to grant the applicant

                      legal aid

28.06.93              Commission's decision to invite the parties to

                      an oral hearing

14.01.94              Hearing on admissibility and merits

14.01.94              Commission's decision to declare the application

                      admissible

Examination of the merits

14.01.94              Commission's deliberations

02.03.94              Applicant's observations on the merits

13.05.94              Consideration of the state of proceedings

27.06.94              Commission's deliberations on the merits, final

                      votes and adoption of the Report