CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I concurred with all my colleagues in finding that there had been no violation of Article 8 of the Convention (art. 8). However, my reasoning differs from theirs in some respects.

Firstly, the Court implicitly accepted that Article 8 (art. 8) was applicable since it assumed there had been an interference, and the application referred to State interference under Article 8 (art. 8): "the institution of criminal proceedings infringed that Article (art. 8)."

In my view, that Article (art. 8) was not even applicable in the instant case.  The concept of private life cannot be stretched indefinitely.

Not every aspect of private life automatically qualifies for pr otection under the Convention. The fact that the behaviour concerned takes place on private premises does not suffice to ensure complete im munity and impunity. Not everything that happens behind closed do ors is necessarily acceptable. It is already the case in criminal law that the "rape" of a spouse where there is doubt whether consent was given may lead to prosecution. Other types of behaviour may give rise to civil proceedings (internal t elephone tapping for example). Sexual acts and abuse, even when not criminal, give rise to liability.

The case could have been looked at differently, both in domestic law and subsequently under the Co nvention. Can one consider that adolescents taking part in sado -masochistic activities have given their free and informed consent where their elders have used various means of enticement, including financial reward?

In domestic law, sado -masochistic activities could be made the subject of a specific criminal offence without that being contrary to Article 8 (art. 8) of the European Convention on Human Rights.

It seems to me that the wording used by the Cour t in paragraph 42 is too vague. The margin of appreciation has been used by the Court mainly in dealing with issues of morals or problems of civil society, but above all so as to afford better protection to others; consequently, a reference to the Müller and Others v. Switzerland judgment would have been preferable to the reference to the Buckley v. the United Kingdom judgment (see Olivier de Schutter ’ s commentary on that judgment in Revue trimestrielle des droits de l ’ homme , Brussels, 1997, pp. 64-93).

It seemed to me necessary to expand paragraph 43 by noting "to regulate and punish practices of sexual abuse that are demeaning even if they do not involve the infliction of physical harm".

The dangers of unrestrained permissiveness, which can lead to debauchery, paedophilia (see paragraph 11 of the judgment) or the torture of others, were highlighted at the Stockholm World Conference. The protection of private life means the protection of a person ’ s intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism .

[1] The case is numbered 109/1995/615/703-705. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-I), but a copy of the Commission's report is obtainable from the registry