CONCURRING OPINION OF JUDGE MATSCHER

(Translation)

In this case I voted with the majority for a violation because - in contrast to the position in the cases of Dudgeon v. the United Kingdom (Series A no. 45, dissenting opinion, p. 33) and Norris v. Ireland (Series A no. 142, dissenting opinion, p. 24) - the applicant can claim to be a victim within the meaning of Article 25 (art. 25).

However, in order to dispel any misunderstanding which might arise from the reference in the present judgment to the case of Costa v. The Republic (at paragraph 20 in the "As to the law" part), which dealt with a different situation (correctly described at paragraph 11 in the "As to the facts" part), I wish to make clear how I interpret the Court ’ s case-law in this area (see the two cases cited above). In my view, Article 8 (art. 8) will be infringed only where the law makes it a criminal offence for consenting adults to commit homosexual acts in private - and I would exclude from that rule a number of specific situations, for instance the abuse of a relationship in which one party is dependent on the other or carrying out such acts within a closed community, such as a boarding-school or a barracks, etc.

DISSENTING OPINION OF JUDGE PIKIS

The foremost issue in these proceedings, made clear in the judgment of the majority, is the state of Cyprus law respecting the criminalisation of homosexual acts between consenting male adults in private. That we had conflicting statements from the parties concerning the effect of Cyprus law on the subject is in itself indicative of the complexity of the issue and a reflection of the difficulties inherent in the identification and definition of the domestic law of Cyprus following the introduction of the Constitution, coincidentally upon the proclamation of its independence.

The Constitution of Cyprus ("the Constitution") came into force simultaneously with the declaration of the country as an independent State in 1960. Article 179 established the Constitution to be the supreme law of the Republic and prohibited the enactment of any law or decision repugnant to or inconsistent with any of its provisions. An important aspect of the Constitution is Part II, safeguarding the fundamental rights and liberties of the individual. It is a comprehensive charter of human rights modelled upon the Convention. Among the rights guaranteed is that of respect for private life (Article 15.1) founded on the provisions of Article 8 (art. 8) of the Convention.

To avoid a legal vacuum in the domestic law of the land, the Constitution saved, subject to qualification, the legislation in force before independence. This was achieved by Article 188 of the Constitution. The adoption of laws predating the Constitution was subject to an important and all-embracing reservation designed to uphold the supremacy of the Constitution. While saving laws antedating the Constitution, Article 188.1 expressly made their sustainment dependent upon the compatibility of their provisions with the supreme law, the Constitution. The saving was subject to the condition that such laws would be construed and applied "... with such modification as may be necessary to bring them into conformity with this Constitution". The term "modification" is broadly defined by Article 188.5. It includes not only amendment and adaptation which are incidental to the power to modify but repeal as well.

As a result, colonial laws or any part of them that could not be reconciled with or brought into conformity with the Constitution by a legitimate process of modification, ceased to be part of the law or survived in such form as to be compatible with its provisions.

The function of adjusting colonial legislation to the Constitution was entrusted to the judiciary to be exercised in the context of the transaction of ordinary judicial business. Article 188.4 provided:

"Any court in the Republic applying the provisions of any such law which continues in force under paragraph 1 of this Article, shall apply it in relation to any such period, with such modification as may be necessary to bring it into accord with the provisions of the Constitution including the Transitional Provisions thereof."

Inevitably the task of streamlining colonial laws with the Constitution was a slow and laborious process, the more so as the term "law" included, in addition to the statutory law, rules and regulations too (Article 188.5).

As a consequence of Article 188 of the Constitution, a multitude of laws and regulations were kept in force subject to modification, including the 354 chapters of codified colonial legislation of which the Criminal Code with its 374 sections (creating an almost equal number of offences) was but one - CAP.154. The absence of an authoritative pronouncement on the conformity of any such law with the Constitution did not raise any presumption about its compatibility. This is not to say that litigants, including the Office of the Attorney-General, did not frequently refer to the colonial statute book as a readily available guide to the law on any given subject.

Article 15.1 of the Constitution safeguarded respect for private life as a fundamental human right to the same extent and with similar aspirations as Article 8 (art. 8) of the Convention. The Convention itself, including Article 8 (art. 8), was adopted as part of the domestic law of Cyprus by the enactment of ratification Law 39/62; and inasmuch as this law incorporated treaty obligations of Cyprus, its provisions had a superior force to those of any other municipal law (Article 169.3 of the Constitution), rendering inoperative any aspect of such legislation that conflicted with the Convention. In sum, legislation in force before independence had to conform as a condition for its validity to the provisions of the Constitution, including those of Article 15.1 and, as from 1962, it should not run contrary to the Convention, including Article 8 (art. 8). Moreover, Article 35 of the Constitution, an addendum to Part II of the Constitution, imposed a duty on all authorities of the State to secure within the limits of their respective competence the efficient application of fundamental human rights. Article 35 provides:

"The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this Part."

The rights safeguarded by Article 15 could be circumscribed only in the manner and for the purposes specified in Article 15.2. The wording of Article 15.2 broadly corresponds with that of Article 8 para. 2 (art. 8-2) of the Convention. It is acknowledged that since independence no law was enacted aimed or purporting to limit or curtail the right of respect for private life; and no law was passed criminalising any form of homosexual conduct between consenting adults in private. In Police v. Hondrou and Another (decided on 6 April 1962 , 3 Reports of Supreme Constitutional Court, p. 82), the Supreme Constitutional Court concerned itself with the prerequisites for the limitation of fundamental human rights. The following passage from the judgment of the court (delivered by Forsthoff , P.), illuminates judicial approach to the subject:

"It is only the people of a country themselves, through their elected legislators, who can decide to what extent its fundamental rights and liberties, as safeguarded by the Constitution, should be restricted or limited and this principle is inherently contained in all constitutions, such as ours, which expressly safeguard the fundamental rights and liberties and adopt the doctrine of the separation of powers."

It follows from the above that the criminalisation of homosexual acts between consenting adults in private rested solely and exclusively on the compatibility of the provisions of section 171 of the Criminal Code with Article 15 of the Constitution and, as from 1962, with Article 8 (art. 8) of the Convention too.

The ambit of fundamental human rights incorporated in the Convention (foreshadowed by the Universal Declaration of Human Rights of 1948) was not immediately identifiable or recognisable. This is certainly true of Cyprus . A number of prosecutions was founded on section 171 and convictions recorded for homosexual acts between consenting adults in private, without any question having been raised concerning the compatibility of section 171 with Article 15.1 of the Constitution or Article 8 (art. 8) of the Convention. It is no coincidence, I believe, but it is for similar reasons that we had no authoritative pronouncement on the effect of Article 8 (art. 8) and its implications respecting homosexual acts between consenting adults in private before the decision in Dudgeon v. the United Kingdom (judgment of 22 October 1981, Series A no. 45); a decision not so much concerned with the breadth of the right of respect for private life as with the acceptability of limitations to the right introduced in the interest of the "protection of morals" or the "protection of the rights and freedoms of others". Sexual conduct, it was affirmed, whatever its nature between consenting adults, is an inherent aspect of private life. The voluntary sexual choices and pursuits of adults in private are their exclusive business. Such is the breadth of the right of respect for the private life of the individual in the area under consideration.

The decision in Dudgeon was followed and applied in the case of Norris v. Ireland with similar consequences (judgment of 26 October 1988 , Series A no. 142).

The Cyprus Government submitted that they accept the decisions of this Court in Dudgeon and Norris as definitive of the ambit of the right of respect for private life with regard to homosexual acts committed between consenting adults in private and the inamenity to subject it to limitations; and they have not sought to justify section 171 of the Criminal Code as a legitimate limitation of the right. On the contrary, they take the view that section 171 is incompatible with Article 15 of the Constitution and on that account ceased to be part of the law of Cyprus since independence. Their argument is as follows: prosecutions mounted under section 171 of the Criminal Code before the decision in Dudgeon, were founded on a misconception of the implications of Article 15 of the Constitution and Article 8 (art. 8) of the Convention. When stock was taken of their effect from the decision in the Dudgeon case, they treated section 171 as having ceased to be part of the law of Cyprus ; consequently, no prosecution was instituted ever since for homosexual acts between consenting adults in private. The changed attitude of the Attorney-General is not attributed to any policy decision evolved within the context of his discretionary powers but to a reassessment of the content and effect of the right of respect for private life. In the light of the above, they argued that the fear of applicant Modinos about a possible violation or compromise of his rights safeguarded by Article 8 (art. 8) of the Convention has no foundation.

The applicant for his part, submitted that the fear and agony he experiences about the perils to his right of respect for his private life are real and referred to a series of facts that reinforce them:

1. the omission of the State to formally abolish section 171 of the Criminal Code;

2. statements made by three successive Ministers of Justice to the effect that they would not initiate legislation to expunge section 171 from the Criminal Code or exclude from its province homosexual acts between consenting adults in private;

3. police investigations into alleged homosexual acts between consenting adults in private. Here it must be noted that the Government denied that any investigations were conducted into homosexual acts between consenting adults in private.

On the other hand, the Attorney-General ’ s decision not to prosecute is no certain assurance for respect of his right safeguarded by Article 8 (art. 8) of the Convention. In effect, his counsel argued, it represents a policy decision liable to change at any future date. Furthermore, a private prosecution cannot be ruled out, which is in itself a source of anxiety.

The fear of the applicant is made more oppressive still by the decision of the Supreme Court of Cyprus in Costa v. The Republic (2 Cyprus Law Reports, p. 120 [1982]), especially the view taken that section 171 of the Criminal Code represents, in the context of the moral fabric of Cyprus, a legitimate limitation of the rights safeguarded by Article 15 of the Constitution and Article 8 (art. 8) of the Convention.

Notwithstanding the vigour and lucidity with which the parties argued their case, I consider it regrettable that neither of them made reference to the case-law of the Supreme Court of Cyprus subsequent to the decision in Costa, definitive of the rights safeguarded by Article 15.1 of the Constitution and the consequences attendant upon breach of fundamental human rights safeguarded by the Constitution. I feel I can, indeed I ought to, draw upon my knowledge of Cyprus case-law to which I drew the attention of my brethren, in determining matters at issue in these proceedings. After all, the cardinal issue, as indicated at the outset of this judgment, revolves around the state of Cyprus law, in particular whether it criminalises homosexual acts between consenting adults in private.

After due consideration of the case, I have come to a contrary decision from the remaining members of the Court. My reasons for dissenting will become more readily understood if I were to recount the basic reasons founding the decision of the Court. The right of the applicant safeguarded by Article 8 (art. 8) of the Convention is imperilled by the continued presence of section 171 in the Criminal Code. Ministerial statements, indicating unwillingness to introduce legislation to abolish section 171, signify governmental approval of its preservation in the statute book. The pronouncements in Costa cannot, whatever their juridical status, but be treated as weighty judicial statements bearing upon the validity of section 171. Moreover, the policy of the Attorney-General not to prosecute cannot be divorced from the views of the incumbent of the post and provides no certain assurance for the future. Consequently, the risk of a prosecution by public authorities is ever present, whereas a private prosecution cannot be ruled out; therefore, the protection of this Court is necessary to sustain the efficacy of the rights of the applicant safeguarded by Article 8 (art. 8) of the Convention.

Below I explain my reasons for coming to a contrary conclusion but, before doing so, I must note the existence of an error in the findings of the Commission under the heading "Relevant domestic law and practice". In paragraph 24 it is stated that the offence in Costa "had been committed in private in a tent but within the sight of another person who was legitimately using the same tent". Thereafter, an extract is quoted from the judgment of the Court in Costa, indicating the reasons that justify in Cyprus the criminalisation of homosexual acts between consenting adults in private, in the interests of the protection of morals. Thus, the impression is conveyed that the remarks of the Court in Costa were necessary for the resolution of an issue involving homosexual acts in private. Presumably, the Commission had identified the subject at issue in the Costa case by reference to the headnote of the report that erroneously omitted the word "not" between "committed" and "in private" from the relevant text of the judgment. In the case of Costa, the offence did not concern the commission of acts of sodomy in private but in a tent temporarily set up to accommodate soldiers during military exercises and inevitably subject to overseeing by military authorities.

Now, the reasons for my dissent:

A. The presence of section 171 in the Criminal Code does not of itself suggest that it continues to be part of the law. A study of the case-law of Cyprus since independence indicates that, notwithstanding the effluxion of thirty or more years since independence, the course of reconciling colonial legislation with the Constitution is by no means complete. This is exemplified by two recent decisions of the Supreme Court of Cyprus: In The United Bible Societies (Gulf) v. Hadjikakou (Civil Appeal No. 7413, decided on 28 May 1990 - not yet reported in the official series), it was decided that the relevant provisions of the Civil Procedure Rules in force before independence, providing for the service of process on non-Greek or Turkish litigants, in English - the official language before independence - were incompatible with the Constitution and on that account they should be applied with necessary modification to bring them into accord with the Constitution; an exercise resulting in the substitution of the official languages of the State, Greek and Turkish, for the English language. A more recent example still is the case of Republic v. Samson (Civil Appeal No. 8532, decided by the plenum of the Supreme Court on 26 September 1991 - not yet reported in the official series), where it was held that the provisions of the Prisons Regulation Law (part of the codified law of Cyprus at the time of independence) - CAP.286, conferring power on the Prisons Authorities to reduce sentence, should be applied in a manner compatible with the doctrine of separation of powers underlying the Constitution, making the judiciary the sole arbiters of the punishment for breach of penal laws.

B. Not only Ministers have no say in the prosecution of crime but in their official endeavours to ascertain the law they must seek the advice of the Attorney-General. Article 113.2 of the Constitution provides that the Attorney-General "shall" be the legal adviser of the Executive, including Ministers. Consequently, ministerial statements on the subject of criminalisation of homosexual acts in private are in no sense authoritative; moreover, they conflict with the view taken of the law by the legal adviser of government so they can be ignored as irrelevant.

The Attorney-General, it must be explained, is not a member of the Government but an independent officer of the Cyprus Republic, holding office on the same terms and conditions as judges of the Supreme Court (Article 112.4 of the Constitution).

C. The decision in Costa does not establish a binding judicial precedent concerning the compatibility of section 171 with Article 15 of the Constitution or as a legitimate limitation of the right safeguarded thereby or under Article 8 (art. 8) of the Convention, as part of the law of Cyprus (Law 39/62). In the judgment of the Court in Costa, it is made clear that the statements made and opinions expressed with regard to criminalisation of homosexual acts in private were of no direct relevance to the case under consideration; they were aimed to furnish an answer to arguments raised, broadening the issue before the Court. As such, they had no direct bearing on the outcome of the case. The offence of which Costa was convicted did not involve homosexual acts between consenting adults in private.

Judicial statements having no direct bearing on the resolution of matters at issue classify or qualify as obiter dicta. Under the Cyprus system of judicial precedent (as in other countries where the English system of judicial precedent applies), obiter dicta do not constitute an authoritative exposition of the law and as such are not binding. Only the ratio of a case, that is the reasons directly and inextricably supporting the outcome of the case, is binding in the sense of stare decisis . A Cyprus court is not bound to follow judicial pronouncements made obiter; of course, they do carry weight such as is warranted by the source of their emanation and the reasoning associated therewith. Hence the Attorney-General was justified not to treat the decision in Costa as an authoritative statement of the law concerning the applicability of section 171 of the Criminal Code, at any rate so far as it affected consensual homosexual acts in private.

Subsequent decisions of the Supreme Court diminish to the point of extinction any weight that might be attached to the obiter pronouncements in Costa.

The decision of the plenum of the Supreme Court in Police v. Georghiades (2 Cyprus Law Reports, p. 33 [1983]) is a landmark in the case-law of Cyprus . The Court was asked to decide, upon a question of law reserved for its opinion, whether evidence deriving from the overhearing of a conversation between a psychologist and his client by means of an electronic listening and recording device was admissible in evidence upon a charge of perjury preferred against the psychologist. The Supreme Court was asked to decide, inter alia, whether the obtaining of the evidence constituted a breach of the rights of the psychologist safeguarded by Article 15 and, if the answer was in the affirmative, whether it could be admitted in evidence. The Court held unanimously that the evidence had been obtained in breach of the rights safeguarded by Article 15 and Article 8 (art. 8) of the Convention amounting to a right of privacy. It was the first case since independence when the Supreme Court of Cyprus made a comprehensive survey on the right of respect for private life in the context of Article 15 of the Constitution and Article 8 (art. 8) of the Convention. The following passage from one of the two leading judgments in the case (given by myself) highlights the ambit of the right guaranteed by Article 15:

"The right to privacy is regarded as fundamental because of the protection it affords to the individuality of the person, on the one hand and, the space it offers for the development of his personality, on the other. Man is entitled to function autonomously in his private life and the right to privacy is aimed to shield him in this area from public gaze ..."

Elsewhere in the same judgment, it is explained that:

"The right to privacy, safeguarded by Article 15, is intended to establish the autonomy of the individual in his private and family life ..."

In the same judgment it is explained that evidence obtained or resulting from breach of fundamental human rights is inadmissible under any guise or circumstances. The matter is put thus:

"I am of the opinion that the basic rights safeguarded in this part of the Constitution, those referring to fundamental freedoms and liberties, are inalienable and inhere in man at all times, to be enjoyed and exercised under constitutional protection. Interference by anyone, be it the State or an individual, is unconstitutional and, a right vests thereupon to the victim to invoke constitutional, as well as municipal, law remedies for the vindication of his rights. The rights guaranteed by Articles 15.1 and 17.1 fall in this category, aimed as they are, to safeguard the dignity of man and ensure a quality of life fit for man and his gifted nature."

The decision in Georghiades (supra) has been consistently applied by the courts of Cyprus since 1983. In Merthodja v. The Police (2 Cyprus Law Reports, p. 227 [1987]), the Supreme Court ruled, on the authority of Georghiades, that a statement amounting to a confession made by the accused (charged with the offence of publishing information relating to the defence works of the Republic contrary to section 50A of the Criminal Code) to the Police Authorities while detained contrary to law was ipso facto inadmissible as evidence stemming from a breach of the fundamental right of liberty safeguarded by Article 11 of the Constitution. More recently, in Police v. Yiallourou (Question of Law Reserved No. 279, given on 7 April 1992), the Court held, on the authority of Georghiades, that a telephone conversation constituted a matter of private life, irrespective of the content of the conversation. Consequently, telephone tapping constituted a violation of the right and on that account a rule of absolute exclusion of its content operated, making the evidence inadmissible for any purpose whatsoever.

The case-law of the Supreme Court of Cyprus establishes that the right to respect for private life, safeguarded by Article 15 of the Constitution and Article 8 (art. 8) of the Convention, should be given effect to in all its breadth and that no attempt to whittle it down can be countenanced by the Court. In the light of the aforesaid interpretation of the fundamental right of respect for private life, it can be predicated that section 171, to the extent that it criminalises homosexual acts between consenting adults in private, is no part of the law because of its repugnancy to Article 15 of the Constitution and Article 8 (art. 8) of the Convention (Law 39/62). The absence of a prosecution for such acts, for the past eleven or more years, can justifiably be regarded as a reflection of this reality.

D. Unlike the Norris case, the policy not to prosecute homosexual acts between consenting adults in private does not rest on the discretionary powers of the Attorney-General exercised by reference to the facts of each individual case but on the correct understanding that Cyprus law does not criminalise such conduct.

E. The risk of private prosecution is inexistent. Unlike the position in Ireland explained in the Norris case, there is no actio popularis in Cyprus . Only the victim of a crime can mount a private prosecution, as explained in the decision of the Supreme Court in Ttofinis v. Theocharides (2 Cyprus Law Reports, p. 363 [1983]). Only a party injured by criminal conduct is in law entitled to raise a private prosecution. Adults engaged in homosexual acts in private cannot, under any circumstances, be regarded as the victims of the conduct in which they voluntarily engage. The fact that no case of a private prosecution was cited for homosexual acts between consenting adults in private is no coincidence but a due reflection of the limitation of the right to raise a private prosecution. And so far as I am aware, no private prosecution was ever raised concerning homosexual acts in private.

F. In the Norris case the point was made that the complaint of the applicant must have a sound objective basis although actual violation is not necessary in order to validate it. The facts that the applicant was never harassed in his private personal affairs and that he has been able to propagate the causes of the "Liberation Movement of Homosexuals in Cyprus" of which he is the President, without let or hindrance, are in themselves suggestive of the absence of a valid basis for his perceived fear of a likelihood of breach of his rights under Article 8 (art. 8) of the Convention.

[*]  The case is numbered 7/1992/352/426.  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.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 259 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.