DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

I am unable to agree with the vie ws and conclusions expressed in the present case by my eminent colleagues as regards the breach by the United Kingdom of Article 8 (art. 8) of the Convention.

In my opinion, there was no vic tim and the Court does not have jurisdiction to take cognisance of a breach alleged by someone who is not a victim.

The action by the police w as decided on (paragraph 33) in implementation of the Misuse of Drugs Act 1971 and not with a view to taking action under the criminal law against homosexuality.

The police investigation "took place in the context of a more extensive operation on the part of the police, the object of which was to trace a minor who was missing from home and believed to be associating with homosexuals" (dissenting opinion of Judge Matscher ) and it did not lead to any criminal prosecution being brought (paragraph 41).

The file on the case was closed by the prosecuting authorities, despite the fact that the applicant was the secretary of an organisation campaigning for the legalisation of homosexuality and notwithstanding the proof of his homosexual tendencies.

I come to the conclusion that because the legislation was not enforced against him and is applicable not directly but only after a concrete decision by the authorities, the applicant was not a victim.

There being no victim, the concl usion must be that there was no breach of Article 8 (art. 8) or of Article 14 taken together with Article 8 (art. 14+8).

I would further emphasise that "t here can be no denial that some degree of regulation of male homosexual conduct, as indeed of other forms of sexual conduct, can be justified as ‘ necessary in a democratic society ’ ", and that "this necessity for some degree of control may even extend to consensual acts committed in private" (paragraph 49).