DISSENTING OPINION OF JUDGES EVRIGENIS AND GARCIA DE ENTERRIA

(Translation)

Being of the opinion that the case should also have been examined under Article 14 read in conjunction with Article 8 (art. 14+8), but without prejudging our position on the merits of the matter, we have felt compelled to vote against point no. 2 in the operative provisions of the judgment for the following reasons:

At least the difference of treatment in Northern Ireland between male homosexuals and female homosexuals and between male homosexuals and heterosexuals (see paragraphs 65 and 69 of the judgment) - a difference in treatment relied on in argument by the applicant - ought to have been examined under Article 14 read in conjunction with Article 8 (art. 14+8). Even accepting the restrictive formula enunciated by the Court in the Airey judgment and applied in the judgment in the present case (at paragraph 67: "a clear inequality of treatment" being "a fundamental aspect of the case"), it would be difficult to assert that these conditions were not plainly satisfied in the circumstances. In any event, to interpret Article 14 (art. 14) in the restrictive manner heralded in the Airey judgment deprives this fundamental provision in great part of its substance and function in the system of substantive rules established under the Convention.

DISSENTING OPINION OF JUDGE MATSCHER

(Translation)

I. A s concerns the alleged interferenc e with an article 8 (art. 8) right

Although I agree with the general tenor of the Court ’ s reasoning, I take a somewhat different view of the facts of the case. As a result, I am unable to concur with the conclusions of the judgment on the issue of a violation of Article 8 (art. 8) of the Convention. I will therefore endeavour to set out my views below.

Article 8 (art. 8) does not at al l require that the State should consider homosexuality - in whatever form it may be manifested - as an alternative that is equivalent to heterosexuality and that, in consequence, its laws should treat each of them on the same footing. Indeed, the judgment quite rightly adverts to this point on several occasions.

On the other hand, it does not follow f rom the above that the criminal prosecution of homosexual acts committed in private between consenting adults (leaving aside certain special situations as, for example, where there has been abuse of a state of dependence or where the acts occur in certain contexts of communal living such as a boarding school, barracks, etc.) is "necessary", within the meaning of Article 8 § 2 (art. 8-2), for the protection of those values which a given society legitimately (likewise for the purposes of the Convention) wishes to preserve. I therefore agree with the general tenor of the reasoning in the judgment as regards the interpretation to be given to Article 8 (art. 8), and in particular to paragraph 2 of that Article (art. 8-2), in the present case.

In this connection, however, the re are two arguments to which I cannot subscribe.

At paragraph 51, it is said that the adjective "necessary" implies the existence of a "pressing social need" for the interference in question (reference to the Handyside judgment of 7 December 1976 , Series A no. 24, § 48). To my mind, however, once it has been granted that an aim is legitimate for the purposes of Article 8 § 2 (art. 8-2), any measure directed towards the accomplishment of that aim is necessary if failure to take the measure would create a risk that that aim would not be achieved. It is only in this context that one can examine the necessity for a certain measure and, adding a further factor, the proportionality between the value attaching to the aim and the seriousness of the measure (see paragraphs 54 and 60 in fine). Since the adjective "necessary" thus refers solely to the measures (that is, the means), it does not permit an assessment whether the aim itself is legitimate, something that the judgment appears to do when it links "necessary" with "pressing social need".

Furthermore, according to paragraph 60, sec ond sub-paragraph, no evidence has been adduced to show that the attitude of tolerance adopted in practice by the Northern Ireland authorities has been injurious to moral standards in the region. I cannot but regard this as a purely speculative argument, devoid of any foundation and which thus has no probative value whatsoever.

My disagreement relates in the fir st place to the evaluation made of the legal provisions and the measures of implementation of which the applicant complains to have been a victim in concreto and to be still a potential victim by reason of the existence of the impugned legislation.

(a) The Government asserted that for a long time (to be precise, between 1972 and 1980) there have been no criminal prosecutions in circumstances corresponding to those of the present case. No one contradicted this assertion which, moreover, would more than appear to be a correct statement of the reality. It is true that at common law a prosecution could also be brought by a private individual, subject to the Director of Public Prosecutions ’ power to discontinue the proceedings. However, here again there have been no examples of prosecutions of this kind during the period in question (paragraphs 29-30).

I conclude from this that in practice there are no prosecutions for homosexual acts committed in private between consenting adults. The absence of any form of persecution seems to be well established by the existence of a number of associations (the Commission lists at least five in paragraph 30 of its report) - the applicant being the Secretary of one of them - which pursue their activities hardly in secret but more or less without any constraint and are, amongst other things, engaged in conducting a campaign for the legalisation of homosexuality, and some of whose members, if not the majority, openly profess - it may be supposed - homosexual tendencies.

In these circumstances, the ex istence of "fear, suffering and psychological distress" experienced by the applicant as a direct result of the laws in force - something which the Commission and the Court saw no reason to doubt (paragraphs 40-41) – seems to me, on the contrary, to be extremely unlikely.

To sum up, I believe that it is not the letter of the law that has to be taken into account, but the actual situation obtaining in Northern Ireland , that is to say, the attitude in fact adopted for at least ten years by the competent authorities in respect of male homosexuality.

The situation is therefore funda mentally different from that in the Marckx case (paragraph 27 of the judgment of 13 June 1979, Series A no. 31) to which the present judgment refers (in paragraph 41): in the former case, the provisions of Belgian civil law complained of applied directly to the applicant who suffered their consequences in her family life; in the instant case, the legislation complained of is formally in force but as a matter of fact it is not applied as regards those of its aspects which are being attacked. This being so, the applicant and those like him can organise their private life as they choose without any interference on the part of the authorities.

Of course, the applicant and the orga nisations behind him are seeking more: they are seeking the express and formal repeal of the laws in force, that is to say a "charter" declaring homosexuality to be an alternative equivalent to heterosexuality, with all the consequences that that would entail (for example, as regards sex education). However, this is in no way required by Article 8 (art. 8) of the Convention.

(b) The police action on 21 January 1976 (paragraphs 30-31) against the applicant can also be seen in a different light: in the particular circumstances, the police were executing a warrant under the Misuse of Drugs Act 1971. During the search, the police found papers providing evidence of his homosexual tendencies. The reason why the police pursued their enquiries was probably also to investigate whether the applicant did not have homosexual relations with minors as well. Indeed, it is well known that this is a widespread tendency in homosexual circles and the fact that the applicant himself was engaged in a campaign for the lowering of the legal age of consent points in the same direction; furthermore, the enquiries in question took place in the context of a more extensive operation on the part of the police, the purpose of which was to trace a minor who was missing from home and believed to be associating with homosexuals (see on this point the reply of the Government to question 8, document Court (81) 32). Furthermore, the file on the case was closed by the competent judicial authorities.

This overall evaluation of the facts leads me to the view that the applicant cannot claim to be the victim of an interference with his private life. For this reason I conclude that there has not been a violation of Article 8 (art. 8) of the Convention in the present case.

II. A s concerns the al leged breach of article 14 read in conjunction with article 8 (art. 14+8)

The applicant alleged a breach of Article 14 read in conjunction with Article 8 (art. 14+8) on three (or even four) counts: (a) the existence of different laws in the different parts of the United Kingdom; (b) distinctions drawn in respect of the age of consent; (c) and (d) differences of treatment under the criminal law between male homosexuality and female homosexuality and between homosexuality and heterosexuality.

As far as the age of consent is con cerned ((b)), the Court rightly notes (at paragraph 66, second sub-paragraph) that this is a matter to be fixed in the first instance by the national authorities. The reasoning of the majority of the Court runs as follows: male homosexuali ty is made punishable under the criminal law in Northern Ireland without any distinction as to the age of the persons involved; consequently, it is only once this age has been fixed that an issue under Article 14 (art. 14) might arise. This reasoning is coherent and there is nothing to add.

To my mind, the competent authoritie s do in fact draw a distinction according to age and exhibit tolerance only in relation to homosexuality between consenting adults. I find that, for reasons whose obviousness renders any explanation superfluous, this differentiation is perfectly legitimate for the purposes of Article 14 (art. 14) and thus gives rise to no discrimination.

As regards the other complaints ( (a), (c) and (d)), the majority of the Court state that when a separate breach of a substantive Article of the Convention has been found, there is generally no need for the Court also to examine the case under Article 14 (art. 14); the position is otherwise only if a clear inequality of treatment in the enjoyment of the right at issue is a fundamental aspect of the case (reference to the Airey judgment of 9 October 1979, Series A no. 32, paragraph 30). This latter condition is said not be fulfilled in the circumstances. Furthermore, the judgment continues, there is no call to rule on the merits of a particular issue which is part of and absorbed by a wider issue (reference to the Deweer judgment of 27 February 1980, Series A no. 35, paragraph 56 in fine), this being the position in the present case. In these conditions, there appeared to the majority to be no useful legal purpose to be served in determining whether the applicant has in addition suffered discrimination as compared with other persons subject to lesser limitations on the same right.

I regret that I do not feel able to agr ee with this line of reasoning. In my view, when the Court is called on to rule on a breach of the Convention which has been alleged by the applicant and contested by the respondent Government, it is the Court ’ s duty, provided that the application is admissible, to decide the point by giving an answer on the merits of the issue that has been raised. The Court cannot escape this responsibility by employing formulas that are liable to limit excessively the scope of Article 14 (art. 14) to the point of depriving it of all practical value.

Admittedly, there are extreme situatio ns where an existing difference of treatment is so minimal that it entails no real prejudice, physical or moral, for the persons concerned. In that event, no discrimination within the meaning of Article 14 (art. 14) could be discerned, even if on occasions it might be difficult to produce an objective and rational explanation for the difference of treatment. It is only in such conditions that, in my opinion, the maxim "de minimis non curat praetor" would be admissible (see, mutatis mutandis, my separate opinion appended to the Marckx judgment, p. 58). I do not, however, find these conditions satisfied in the present case, with the result that a definite p osition must be taken regarding the alleged violation of Article 14 (art. 14) in relation to the complaints made by the applicant.

(a) The diversity of domestic l aws, which is characteristic of a federal State, can in itself never constitute a discrimination, and there is no necessity to justify diversity of this kind. To claim the contrary would be to disregard totally the very essence of federalism.

(c) and (d) The difference of character between homosexual conduct and heterosexual conduct seems ob vious, and the moral and social problems to which they give rise are not at all the same. Similarly, there exists a genuine difference, of character as well as of degree, between the moral and social problems raised by the two forms of homosexuality, male and female. The differing treatment given to them under the criminal law is thus founded, to my mind, on clearly objective justifications.

Accordingly, I come to the conclusio n that there has been no breach of Article 14 read in conjunction with Article 8 (art. 14+8) in respect of any of the heads of complaint relied on by the applicant.