CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 décembre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 15070/89                       by Alecos MODINOS                       against Cyprus             The European Commission of Human Rights sitting in private on 6 December 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 22 May 1989 by Alecos Modinos against Cyprus and registered on 31 May 1989 under file No. 15070/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to the written observations submitted by the respondent Government on 17 January 1990;           Having regard to the written observations in reply submitted by the applicant on 6 April 1990;           Having regard to the parties' oral submissions at the hearing on 6 December 1990;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as submitted by the parties may be summarised as follows:           The applicant is a Cypriot citizen, born in 1933.   He is an architect, residing in Nicosia.   In the proceedings before the Commission the applicant is represented by Mr.   Achilles Dimitriades, a lawyer practising in Nicosia.           The applicant is a homosexual and the president of the "Liberation Movement of Homosexuals in Cyprus".           In a number of letters addressed to the President of the Republic of Cyprus, to the President of the Parliament and to the Minister of Justice between June 1988 and February 1989, the applicant requested that legislation in Cyprus prohibiting male homosexual activity be amended.   No answer was given to his requests.           Sections 171, 172 and 173 of the Criminal Code of Cyprus provide as follows:   "171.    Any person who -   (a)      has carnal knowledge 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 felony and         is liable to imprisonment for five years.   172.     Any person who with violence commits either of the         offences specified in the last preceding Section is         guilty of a felony and liable to imprisonment for         fourteen years.   173.     Any person who attempts to commit either of the offences         specified in Section 171 is guilty of a felony and is         liable to imprisonment for three years, and if the attempt         is accompanied with violence he is liable to imprisonment         for seven years."           Article 15 of the Constitution of Cyprus reads as follows:   "1.   Every person has the right to respect for his private and family life.   2.   There shall be no interference with the exercise of this right except such as in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person."           In a decision of 8 June 1982 (Yiannakis Panayiotou Costa v. the Republic) the Supreme Court of Cyprus examined the question of the compatibility of the above provisions with Article 15 of the Constitution of Cyprus, Article 8 of the Convention and the jurisprudence of the European Court of Human Rights.   The Supreme Court held the following:           "In ascertaining the nature and scope of morals and the degree of the necessity commensurate to their protection, the jurisprudence of the European Court and the European Commission of Human Rights has already held that the conception of morals changes from time to time and from place to place, and that there is no uniform European conception of morals;   that, furthermore, it has been held that state 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;   in view of these principles this Court has decided not to follow the majority view in the Dudgeon case, but to adopt the dissenting opinion of Judge Zekia, because it is convinced that it is entitled to apply the Convention and interpret the corresponding provisions of the Constitution in the light of its assessment of the present social and moral standards in this country; therefore, in the light of the aforesaid principles and viewing the Cypriot realities, this Court is not prepared to come to the conclusion that Section 171 (b) of our Criminal Code, as it stands, violates either the Convention or the Constitution, and that it is unnecessary for the protection of morals in our country.           By adopting the dissenting opinion of Judge Zekia this Court should not be taken as departing from its declared attitude that for the interpretation of provisions of the Convention, domestic tribunals should turn to the interpretation given by the international organs entrusted with the supervision of its application, namely, the European Court and the European Commission of Human Rights."   COMPLAINTS           The applicant complains that the maintenance in force of legislation prohibiting male homosexual activity constitutes a continuous interference with his right to respect for his private life.   He refers to the case-law of the European Court of Human Rights (Dudgeon judgment of 22 October 1981, Series A no. 45;   Norris judgment of 26 October 1988, Series A no. 142) and invokes Article 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 22 May 1989 and registered on 31 May 1989.           On 2 October 1989, the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the application before 8 December 1989.           After having obtained an extension of the above time-limit, the Government submitted their observations on 17 January 1990.           The applicant submitted observations in reply on 6 April 1990.           On 8 June 1990 the Commission decided to invite the parties to appear before it at a hearing on the admissibility and merits of the application.           The hearing was held on 6 December 1990.   At the hearing the parties were represented as follows:   For the Government   Mr.   Michael A.   TRIANTAFYLLIDES Attorney General of the Republic, Agent   Mr.   Rallis GAVRIELIDES           Senior Counsel of the Republic, counsel   Mrs.   Leda KOURSOUMBA             Senior Counsel of the Republic, counsel   Miss Daphne PAPADOPOULOU         Counsel of the Republic, counsel   Mrs.   Anny CARIOLOU               Administrative Officer,                                 Ministry of Justice, adviser   For the applicant   Mr.   Achilleas DEMETRIADES        Barrister-at-law,                                 representative of the Applicant     Mr.   Lellos DEMETRIADES           Barrister-at-law, counsel           The applicant was present at the hearing.   THE LAW           The applicant complains that the maintenance in force of legislation prohibiting male homosexual activity constitutes an unjustified continuing interference with his right to respect for private life.   He invokes Article 8 (Art. 8) of the Convention which reads as follows:   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."           The Government first submit that the applicant cannot claim to be a victim of a violation of the above provision within the meaning of Article 25 (Art. 25) of the Convention.   In this respect they submit that the challenged provisions of the Criminal Code are in practice no longer in force.   The Government observe that Sections 171, 172 and 173 of the Criminal Code are in conflict with Article 15 of the Constitution of Cyprus, the text of which is almost identical to that of Article 8 of the Convention.   They point out that no prosecution for homosexual activities in private between consenting male adults has taken place since the Dudgeon judgment of the European Court of Human Rights and note that the practice of the Attorney General is not to institute such a prosecution and to discontinue any eventual private prosecution.   Moreover, the Government submit that a Parliamentary Commission has taken steps to amend the legislation complained of.           The applicant notes that Sections 171 - 173 of the Criminal Code are still in force and have been applied by Cypriot courts over the last thirty years.   He submits that there is no indication that the Government have the intention of changing the legislation.   On the contrary, the competent Ministers stated on several occasions that the legislation prohibiting male homosexual activities will remain unaffected.   Moreover, the Attorney General's practice cannot be regarded as a sufficient guarantee against possible prosecution.   This practice may change and in any event it does not prevent private prosecution.           The Commission recalls that in its judgment in the Marckx case the European Court of Human Rights held the following:           "Article 25 (Art. 25) of the Convention entitles individuals         to contend that a law violates their rights by itself,         in the absence of an individual measure of implementation,         if they run the risk of being directly affected by it."         (Eur. Court H.R., Marckx judgment of 13 June 1979, Series A         no. 31 p. 13 para. 27).           Moreover, the Commission has had regard to the jurisprudence of the Court according to which the very existence of a legislation may continuously affect the exercise of a right under the Convention (cf. Eur. Court H.R. Dudgeon judgment of 22 October 1981, Series A no. 45, p. 18 para. 41) even in the absence of an individual measure of implementation (cf. Eur. Court H.R. Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 21 para. 42) and even where the risk of such an implementation is minimal (cf. Eur. Court H.R. Norris judgment of 26 October 1988, Series A no. 142, p. 16 para. 33).           The Commission notes that the challenged legislative provisions have not been abolished and that the applicant, whose homosexual tendencies have not been contested by the Government, may be affected by the impugned prohibition of homosexual acts.   Having regard to the above jurisprudence of the Court, the Commission finds that the applicant may claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention.           The Government further object that the applicant has not exhausted the domestic remedies at his disposal according to the generally recognised rules of international law.   They note that under Article 29 of the Constitution "every person has the right ... to address written requests or complaints to any competent public authority and to have them decided expeditiously".   According to para. 2 of the above constitutional provision "where no such decision is notified to the (interested) person ... such person may have recourse to a competent court in the matter of such request or complaint".   Moreover, the Government submit that it was open to the applicant to request that his "Liberation Movement of Homosexuals in Cyprus" be registered as an association under Law 57/1972.   Had such a request been rejected by the competent authority, that is the Minister of Interior, the applicant could have challenged this decision before the Supreme Court.   This court would then examine the very issue of the compatibility of the provisions of the criminal code with the Constitution and the Convention.           The applicant submits that, having regard to the judgment of the Supreme Court in the Costa v. the Republic case, he must be regarded as having exhausted the domestic remedies according to the generally recognised rules of international law.           The Commission notes that in its judgment Costa v. the Republic the Supreme Court expressly stated that, having regard to the social and moral standards in Cyprus, the legislation complained of does not infringe either the Constitution or the Convention.   In this respect the Commission recalls that an applicant who shows, from decided cases, that the point at issue has already been decided by the competent domestic authority is exempted, according to the generally recognised rules of international law, from the obligation to exhaust remedies (cf. No. 7630/76, Dec. 6.12.79, D.R. 19 p. 113 ; No. 8346/78, Dec. 4.3.80, D.R. 19 p. 233).           In the light of the above considerations the Commission finds that the applicant has complied with the requirement of Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies and that the Government's objection must be rejected.           As regards the merits of the complaint the Government submit that the legislative provisions complained of apply to limited cases which do not concern homosexual activities in private.   They submit that such a limited implementation must be regarded as necessary in a democratic society since it aims in particular at the protection of health and morals.           The applicant submits that the very existence of the challenged provisions in the Criminal Code creates to him a constant fear of prosecution.   He submits that this constitutes an interference with his right to respect for his private life which has no justification in a democratic society.           The Commission has carried out a preliminary examination of the parties' submissions under Article 8 (Art. 8) of the Convention and finds that they raise important issues of law and fact.   The application cannot, therefore, be rejected as manifestly ill-founded and must be declared admissible, no other ground for declaring it inadmissible having been established.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION ADMISSIBLE, without in any         way prejudging the merits.     Secretary to the Commission          President of the Commission           (H. C. KRÜGER)                        (C. A. NØRGAARD)