DISSENTING OPINION OF JUDGE ZEKIA

I am dealing only with the crucial poin t which led the Court to find a breach of Article 8 § 1 (art. 8-1) of the Convention by the respondent Government.

The Acts of 1861 and 1885 still in force in Northern Ireland prohibit gross indecency between males and buggery. These enactments in their unamended form are found to interfere with the right to respect for the private life of the applicant, admittedly a homosexual.

The decisive central issue in thi s case is therefore whether the provisions of the aforesaid laws criminalising homosexual relations were necessary in a democratic society for the protection of morals and for the protection of the rights and freedoms of others, such a necessity being a prerequisite for the validity of the enactment under Article 8 § 2 (art. 8-2) of the Convention.

After taking all relevant facts an d submissions made in this case into consideration, I have arrived at a conclusion opposite to the one of the majority. I proceed to give my reasons as briefly as possible for finding no violation on the part of the respondent Government in this case.

1. Christian and Moslem religions are all united in the condemnation of homosexual relations and of sodomy. Moral conceptions to a great degree are rooted in religious beliefs.

2. All civilised countries unti l recent years penalised sodomy and buggery and akin unnatural practices.

In Cyprus criminal provisions s imilar to those embodied in the Acts of 1861 and 1885 in the North of Ireland are in force. Section 171 of the Cyprus Criminal Code, Cap. 154, which was enacted in 1929, reads:

"Any person who (a) has carnal know ledge 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 felon y and is liable to imprisonment for five years."

Under section 173, anyone who attempts to commit such an offence is liable to 3 years ’ imprisonment.

While on the one hand I may be tho ught biased for being a Cypriot Judge, on the other hand I may be considered to be in a better position in forecasting the public outcry and the turmoil which would ensue if such laws are repealed or amended in favour of homosexuals either in Cyprus or in Northern Ireland . Both countries are religious-minded and adhere to moral standards which are centuries ’ old.

3. While considering the respe ct due to the private life of a homosexual under Article 8 § 1 (art. 8-1), we must not forget and must bear in mind that respect is also due to the people holding the opposite view, especially in a country populated by a great majority of such people who are completely against unnatural immoral practices. Surely the majority in a democratic society are also entitled under Articles 8, 9 and 10 (art. 8, art. 9, art. 10) of the Convention and Article 2 of Protocol No. 1 (P1-2) to respect for their religious and moral beliefs and entitled to teach and bring up their children consistently with their own religious and philosophical convictions.

A democratic society is govern ed by the rule of the majority. It seems to me somewhat odd and perplexing, in considering the necessity of respect for one ’ s private life, to underestimate the necessity of keeping a law in force for the protection of morals held in high esteem by the majority of people.

A change of the law so as to legalise h omosexual activities in private by adults is very likely to cause many disturbances in the country in question. The respondent Government were justified in finding it necessary to keep the relevant Acts on the statute book for the protection of morals as well as for the preservation of public peace.

4. If a homosexual claims to be a sufferer because of physiological, psychological or other reasons and the law ignores such circumstances, his case might then be one of exculpation or mitigation if his tendencies are curable or incurable. Neither of these arguments has been put forward or contested. Had the applicant done so, then his domestic remedies ought to have been exhausted. In fact he has not been prosecuted for any offence.

From the proceedings in this c ase it is evident that what the applicant is claiming by virtue of Article 8 §§ 1 and 2 (art. 8-1, art. 8-2) of the European Convention is to be free to indulge privately into homosexual relations.

Much has been said about the scarcity of cases coming to court under the prohibitive provisions of the Acts we are discussing. It was contended that this fact indicates the indifference of the people in Northern Ireland to the non-prosecution of homosexual offences committed. The same fact, however, might indicate the rarity of homosexual offe nces having been perpetrated an d also the unnecessariness and the inexpediency of changing the law.

5. In ascertaining the nature and scope of morals and the degree of the necessity commensurate to the protection of such morals in relation to a national law, adverted to in Articles 8, 9 and 10 (art. 8, art. 9, art. 10) of the European Convention on Human Rights, the jurisprudence of this Court has already provided us with guidelines:

"A" The conception of morals changes from time to time and from place to place. There is no uniform European conception of morals. Sta te 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. ( Handyside judgment of 7 December 1976, Series A no. 24, p. 22, § 48)

It cannot be disputed that the moral climate obtaining in Northern Ireland is against the alteration of the law under consideration, the effect of which alteration, if made, would be in some way or other to license immorality.

"B" State authorities likewise are in a better position to assess the extent to which the national legislation should necessarily go in restricting, for the protection of morals and of the rights of o thers, rights secured under the relevant Articles of the Convention.

The legislative assembly competent to alter the laws under review refrained to do so, believing it to be necessary to maintain them for the protection of morals prevailing in the region and for keeping the peace. The Contracting States are entitled to a margin of appreciation, although undoubtedly not an unlimited one.

Taking account of all relevant facts and points of law and the underlying principles for an overall assessment of the situation under consideration, I fail to find that the keeping in force in Northern Ireland of Acts - which date from the last century - prohibiting gross indecency and buggery between male adults has become unnecessary for the protection of morals and of the rights of others in that country. I have come to the conclusion therefore that the respondent Government did not violate the Convention.