DISSENTING OPINION OF MR. L. LOUCAIDES

JOINED BY MR. M.A. NOWICKI

      I am unable to agree with the majority that there has been no

violation of Article 7 (para. 1) of the Convention in this case.

      I base my disagreement on the following reasons.

      (a)  Article 7 (para. 1) excludes that any act not previously

punishable shall be held by the courts to entail criminal liability or

that existing offences should be extended to cover facts which

previously clearly did not constitute a criminal offence.  This implies

that constituent elements of an offence may not be essentially changed,

at least not to the detriment of the accused, by the case law of the

courts.  Existing elements of the offence may be simply clarified and

adapted to new circumstances which can reasonably be brought under the

original concept of the offence.

      (b)  On 12 November 1989 the applicant attempted, by force, to

have sexual intercourse with his recently estranged wife at her

parents' home, into which he had forced his way.  He was subsequently

charged with rape and assault.

      (c)  At the time of the applicant's act, for which he was later

on charged and convicted for rape, it was a clear and well-settled law

in England that a man cannot be guilty of rape upon his wife, he being

the actor, for the wife was considered in general unable to retract the

consent to sexual intercourse which was part of the contract of

marriage.  This principle was set out in the main text books on English

criminal law and it has been repeatedly upheld by the English courts,

For example in the case of R. v. Kowalski  (1987, 86, Cr, App. R 339),

Ian Kennedy J. giving the judgment of the court stated, obiter dicta,

"It is clear, well-settled and ancient law that a man cannot, as actor,

be guilty of rape upon his wife" and he went on to say that that

principle was

      "dependent upon the implied consent to sexual intercourse which

      arises from the married state and which continues until that

      consent, is put aside by decree nisi, by a separation order or

      in certain circumstances, by a separation agreement".

      Also, Mr. Justice Rougier in R. v. J. in November 1990 found that

the accused in the case before him should not be convicted ex post

facto of rape of his wife.

      The general immunity afforded to husbands in respect of

prosecution for rape of his wife has been subject to certain specified

exceptions, none of which was applicable to the facts of the present

case.  That the English law on the subject in question was as set out

above is further evidenced by the reviews of the Law Commission

referred to in the Report of the Commission in this case.

      (d)  The legal basis for the conviction of the applicant is found

in the judgment of 23 October 1991 of the House of Lords in R. v. R.

In the judgment, the House of Lords has for the first time declared

that the immunity in question no longer formed part of the law because

it was an anachronistic and an offensive fiction which should be swept

away.

      (e) I find that as a result of the above judgment, the law as

regards one of the existing elements of the offence of rape, i.e.,

consent, has been fundamentally changed to the applicant's detriment.

It was neither a clarification of the existing elements of the offence

in question, nor an adaptation of such elements to new circumstances

which could reasonably be brought under the original concept of the

offence.  In sum, I believe that the House of Lords, by their judgment

in question, made criminal a conduct which was previously not

sanctioned by the criminal law.

      The fact that a change of the law so as to remove the above-

mentioned immunity was necessary does not make any difference for the

purposes of the principle safeguarded under Article 7 para. 1 of the

Convention.  Such  change could have been effected through legislation.

A change through the case-law of the courts could not have been

reasonably foreseeable to the applicant even with the assistance of

legal advice and  consequently, in my view, there has been a breach of

that Article in this case.

      Before concluding, I would like to answer briefly the question

of the applicability of Article 17 raised by Mrs. J. Liddy in her

separate opinion.  Article 17 states that "Nothing in this Convention

may be interpreted as implying for any ... person any right to engage

in any activity or perform any act aimed at the destruction of any of

the rights and freedoms set forth herein or at their limitation to a

greater extent than is provided for in the Convention."   In my

opinion, Article 17 is intended to exclude the abuse of any of the

specific rights safeguarded by the Convention for any of the purposes

set out in the same Article.  The applicant at the time of the

commission of the act for which he was found guilty of rape was not

purporting to exercise his rights under Article 7 (para. 1) of the

Convention.  These rights only arose at the time of his conviction.

                                                         (Or. French)