DISSENTING OPINION OF JUDGE VALTICOS APPROVED BY JUDGES GÖLCÜKLÜ, MATSCHER, WALSH, BERNHARDT AND CARRILLO SALCEDO

(Translation)

I find myself unable to concur with the majority of the Court which held that the applicant must be considered a "victim", within the meaning of Article 25 (art. 25) of the Convention, of a breach of rights guaranteed by Article 8 (art. 8).

In fact, the applicant was not subjected to any action, penalty or other measure by his country ’ s authorities in respect of any homosexual acts committed by him. The criminal law in this matter in Ireland was not enforced against him and, more generally, no prosecutions for homosexual activities in private between consenting adult men have been instituted for a number of years. The various minor difficulties of which the applicant complains were not caused by the authorities. Nor, moreover, has the applicant encountered any problems on account of the campaign which he has been overtly conducting since 1971 in favour of homosexual rights.

This case does, indeed, bear great similarities to the Dudgeon case in which the Court considered that there had been a breach of the Convention. However, an appreciable and, in my view, decisive difference between the two cases lies in the fact that, in the Dudgeon case, the applicant had been subjected by the police to certain intrusions into his private life whilst, in this case, no action was taken against the applicant by the authorities.

The natural meaning of the word precludes a person from being regarded as a "victim" of a legal provision if that person has not been subjected to any penal or other measure based on the legislation in question. The fear of prosecution which the applicant may have experienced and the psychological problems which may have been thereby occasioned do not in themselves suffice for a finding that the applicant is a victim. Moreover, the likelihood of the applicant ’ s being prosecuted seems minimal regard being had to the aforementioned practice of the authorities and to the fact that the applicant has spoken out publicly on the subject of his proclivities and activities for a number of years without attracting any prosecution.

Certainly, it can never be ruled out that a law regarded as having fallen into desuetude may one day be implemented anew. But that is not the issue here. The case turns rather on whether the applicant was in fact personally a victim. It cannot really be said that that has been, or is likely to be, the case.

The system of the Convention, as a whole, is precise and, on this point, gives rise to no ambiguity or latitude. Unlike the provision in Article 24 (art. 24) relating to complaints lodged by Contracting Parties, an application under Article 25 (art. 25) by a natural person is admissible only if an applicant can claim to be the victim of a violation by a Contracting Party of the rights secured by the Convention. For the reasons which have been stated, it cannot be said that this condition is satisfied in this case.

To interpret too widely the word "victim" would risk appreciably altering the system laid down by the Convention. The Court might thus be led, even in respect of complaints from individuals, to adjudicate on the compatibility of national laws with the Convention irrespective of whether those laws have in fact been applied to an applicant whose status as a victim would be no more than very potential and contingent. An actio popularis would then not be far off.

I would add that this opinion in no wise seeks to call in question the authority of the Dudgeon judgment as to the merits.

[*]  Note by the registry: The case is numbered 6/1987/129/180.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.