CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 octobre 1997

.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. 28105/95                       by P.L.                       against Ireland          The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              MM     M.P. PELLONPÄÄ, Acting President                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 28 July 1995 by P.L. against Ireland and registered on 3 August 1995 under file No. 28105/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      18 December 1996 and 29 April 1997 and the observations in reply      submitted by the applicant on 21 February and 6 June 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Irish national born in 1958.   Before the Commission he is represented by Padraic Brennan, solicitor, Paul McDermott, barrister-at-law, and Blaise O'Carroll, senior counsel, of Ferrys Solicitors, practising in Dublin.        The facts of the case as submitted by the parties may be summarised as follows.   A.    Particular circumstances of the case        On 12 November 1990 the applicant was arrested and later charged and indicted.   The following facts which led to the applicant's arrest were submitted during the trial.        Prior to the events at issue the applicant and   Ms. D ("the complainant") had lived for certain period of time together in the United Kingdom.   They had a daughter, T., born on 24 February 1989. The relationship between the applicant and the complainant deteriorated and she eventually obtained in court in the United Kingdom the custody of T.   The applicant was granted access to T.        In August 1990 the complainant returned to Dublin with her daughter, leaving the applicant in the United Kingdom.   Two weeks later the applicant arrived in Dublin and sought to see his daughter.   The applicant eventually took T. for a holiday, the complainant having remained at her mother's home in Dublin.   The applicant then allegedly refused to return T. unless he was allowed to live with the complainant and their daughter in Dublin.   The complainant apparently agreed and the three of them returned to Dublin and resided at her mother's house until the applicant's arrest.        On 11 November 1990 the applicant and the complainant had a quarrel, following which the applicant took T. and went out.   After the complainant found him at her sister's home, at about 6 p.m. they went to a bar, taking T. with them.   After consuming some beer they left.        As regards the events which followed it was submitted at the trial that at some time in the evening the applicant had oral, anal and vaginal sex with the complainant, the modalities thereof however having been disputed.        The complainant stated that after having driven her for some time around Dublin, shouting at her and not letting her go, the applicant had stopped the car at a deserted place somewhere at the docks area of Dublin, had pulled the complainant out of the car, had forced her to undress and had raped her.        The applicant submitted at the trial that he had stopped the car at the docks, that he and the complainant had gone outside for a walk to continue to discuss their problems, and that they had had sex with the complainant's full consent.        After the incident the applicant was arrested when he stopped the car shortly after driving away from the docks.   On the back seat of the car was the complainant naked, wrapped in a blanket and holding their daughter.   Two police officers approached the stopped car.   Thereupon the complainant knocked on the window and told the police officers that she had been raped.        The applicant was indicted on three counts: indecent assault, rape and buggery.        At the trial he maintained that in the course of their relationship the complainant had been the initiator of anal intercourse before and that such acts had been a normal, albeit not regular, part of their sexual life as a couple.   This was rejected by the complainant.        On the first day of the trial the applicant's lawyers made an application to the trial judge stating that following the judgments of the European Court of Human Rights in the Dudgeon and Norris cases (Eur. Court HR, Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A, No. 45; Norris v. Ireland judgment of 26 October 1988, Series A, No. 142), Ireland was under an obligation to change its law on buggery so that consensual anal intercourse between males, or between a male and a female, could not be subject of a criminal sanction.   The lawyers requested that the count of buggery be removed or examined at a separate trial.        The trial judge noted that there were some differences between the Dudgeon and Norris cases and the case before him.   Thus, the facts of the case, as alleged by the prosecution, clearly concerned forced acts committed without consent.   As under the law both participants in a buggery are criminally liable, the complainant would have been prosecuted also if it were the opinion of the prosecution that she had consented to the anal intercourse.   The judge also stated that in any event he was bound by the law as it was.   As a result the trial proceeded on the three counts.        Evidence was given inter alia by several police officers, by the complainant and by the applicant, by medical personnel and by forensic scientists.   The latter provided evidence of ripped and mud-stained undergarment, as well as of bruises and scratches on the complainant.        After all submissions of the parties the trial judge summed up the evidence in the case and gave directions to the jury.   He stated inter alia:         "It seems to me to all intents and purposes on the admitted evidence on both sides, ladies and gentlemen, inevitable that you should convict Mr. Leonard on Count 3, the offence of buggery, but there is a very considerable measure of difference between buggery on a consensual basis between two persons who had been having a lengthy, albeit turbulent, relationship and forced sexual activities of that particular nature.         If your verdict, ladies and gentlemen, was to the effect that the accused was guilty on Count No. 3 of buggery but not guilty in respect of Counts 1 and 2, that is to say, rape and indecent assault, I cannot inquire as to what went on in your jury room or in your deliberations, but I am also bound in that contingency of acting on the version of events that could reasonably be true that is most favourable to the accused man, and if your verdict was one of guilty on Count No. 3 but not guilty on the other two counts, whilst it would still be a matter of significance, it would be a very much less grave finding than a version which indicated that the particular sodomitical act was forced upon [the complainant]. You may take it, ladies and gentlemen, from my experience, and I have no doubt from that of the various counsel in the case, that you have not been here over the past week dwelling on an allegation of consensual anal sex between two persons who had been having a lengthy relationship. Had the case involved an allegation of consensual buggery, you may take it would be most unlikely that evidence would have come to light, and you may also take it ... that it would be rather improbable that the prosecution would have instituted a prosecution on the basis of such a consensual act, or that if the prosecution had instituted a prosecution, it would have also joined [the complainant] on a basis of being somebody equally involved in it, because in law if there is consensual buggery carried out between consenting adults - and it matters not whether this is in a heterosexual or homosexual context - if the persons are of full age, then both the active and the passive partner are equally liable. But I think you can take it, ladies and gentlemen, from the fact that [the complainant] was not charged and from all the circumstances of the case that the real allegation is that there was forced buggery along with the forced indecent assault and forced vaginal intercourse or rape alleged by the prosecution.         Accordingly, if you saw fit to return a verdict on Count 3 only but not guilty on the other counts, it seems to me that in fairness I would have to assume, since neither [the complainant] nor [the applicant] have alleged that there was any difference as regards part of the sexuality being consensual and part not consensual, it seems to me that I would have to find that that was on the basis of it being at any rate capable of being reasonably true, that it was a consensual act, and that I would, accordingly, be constrained to look on the matter with more leniency than normally so grave a charge as buggery would require. Other than that, ladies and gentlemen, I am not going to go into any possible aspects pertaining to sentence. It does seem to me that the real case that the prosecution are alleging before you is the contention that all three actions were carried out on a forced basis in the particular circumstances relied upon by the prosecution and that there was no question of consent being a version that could reasonably have been true in relation to any of them."        On 19 March 1991 the jury convicted the applicant on the count of buggery and acquitted him on the counts of indecent assault and rape. On 22 March 1991 the applicant was sentenced to two years' imprisonment, the last eight months of which having been suspended. On imposing sentence the judge stated inter alia:         "the jury verdict in no sense is to be interpreted as a finding by the jury that [the complainant] consented to the sequence of acts in question ... [I]t merely implies that the jury, conscientiously interpreting the onus and standard of proof, were unable to find that the prosecution version had been proved to the requisite high degree."        The judge further stated:        "... whilst I in no sense interpret the jury's verdict as meaning that [the complainant] consented to being sodomised ..., for purposes of [the applicant's] sentence the law requires me, as I, indeed, charged the jury, to interpret the finding as meaning that I must approach [the] sentence on the basis of consensual activity ... in the context of count 3.   This still remains a very serious and profoundly disturbing matter when one considers the evidence as a whole, and whilst I am going to make every conceivable allowance in your favour, I am nonetheless in the course of the res gestae going to bear in mind that very shortly after the incident, although you were not charged with it, you made a wholly unwarranted and quite scurrilous assault on [the complainant] on your own admission by striking her quite forcibly with your fist.   It is true that you were not charged with this matter, but it seems to me that it is part of the res gestae, and indeed I certainly do not think it would be a just outcome if any further charges were to be brought by the prosecution in relation to that, but I am going to bear it in mind to a degree.        I have to deal greatly more leniently with your case in the context of the jury's finding and the requirement that I have referred to that I must deal with the matter as having been on their finding as regards you consensual, albeit in circumstances that were profoundly disturbing and that culminated in a most unsavoury and unprovoked assault by you on [the complainant]. It seems to me that I am still constrained to a issue a custodial sentence that cannot be trivial but that I must vastly demarcate between the sentencing aura of ten to twelve years that I undoubtedly would have imposed had you been found guilty on all three counts."        On 13 February 1995 the Court of Appeal refused the applicant's application for leave to appeal against conviction.   B.    Relevant domestic law        The offence of buggery under Irish law, as it stood at the relevant period of time and until 1993, was a felony under Section 61 of the Offences Against the Person Act, 1861.   This provision read as follows:         "Whoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be kept in penal servitude for life".        The offence of buggery could be committed by male or female persons.   Consent was not a valid defence against the charge of buggery.        Section 61 of the 1861 Act was to be read in conjunction with the provisions of the Penal Servitude Act 1891, Section 1, by virtue of which the court is empowered to impose a lesser sentence of penal servitude than that mentioned in the 1861 Act or, in lieu thereof, a sentence of imprisonment for a term not exceeding two years or a fine. The provisions of the 1861 Act were also subject to the power given to the court by Section 1(2) of the Probation of Offenders Act 1907, to apply, by way of substitution, certain more lenient measures.        Section 2 of the Criminal Law (Sexual Offences) Act 1993 abolished the offence of buggery between persons and consequently Section 61 of the 1861 Act was repealed.   Section 4 of the same Act created a new offence known as "rape under Section 4" meaning a sexual assault which included anal penetration.     COMPLAINTS        The applicant complains under Article 8 of the Convention that the very existence, as well as the application in the particular circumstances of his case, of the legal provision which provided for prosecution for buggery,   was an interference with the applicant's rights under Article 8 of the Convention.   This interference was neither lawful, nor justified under the second paragraph of this provision.        Thus, what the law considered a criminal offence, and what the applicant was convicted of, was a consensual anal intercourse with a female adult.   It is unnecessary in a democratic society for any of the purposes set out in paragraph 2 of Article 8 of the Convention, to regulate such a matter by the criminal law.   Furthermore, even if such regulation had a legitimate purpose, the interference with the applicant's rights under Article 8 of the Convention, by the nature and the scope of the offence in respect of which he was convicted and sentenced, was wholly disproportionate to any conceivable legitimate aim.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 28 July 1995 and registered on 3 August 1995.        On 16 October 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 18 December 1996.   The applicant replied on 21 February 1997.   The Government submitted additional observations on 29 April 1997, to which the applicant replied on 6 June 1997.     THE LAW   1.    The applicant complains   that   the very existence, as well as the application in the particular circumstances of his case, of the legal provision which provided for prosecution for buggery, was an unjustified interference with his rights under Article 8 (Art. 8) of the Convention.        Article 8 (Art. 8) of the Convention, insofar as relevant, provides as follows:        "1.    Everyone has the right to respect for his private ... life      ...        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 submit that the applicant has not exhausted the domestic remedies within the meaning of Article 26 (Art. 26) of the Convention as he has not claimed before the Irish courts that the criminalisation of consensual buggery between heterosexual adults is unconstitutional.   The Norris judgment (Eur. Court HR, loc. cit.) upon which he relied concerned only the criminalisation of such activities between homosexuals.        The Government also maintain that the applicant cannot establish that he has been affected by the law prohibiting consensual buggery which was abolished in 1993.   The applicant cannot establish that but for this prohibition he would not have been convicted.        The Government argue that the Commission should not assume, as is sought by the applicant, that the jury's verdict was based on a finding of consent on the part of the complainant.   There was ample evidence upon which the jury were entitled to hold that the buggery occurred without the consent of the complainant.   As a jury does not give reasons for their verdict the Government submit that neither the Irish courts, nor the Commission has the power to enquire into the basis for the decision arrived at by them.        The Government further submit that there is no issue of privacy involved in the particular circumstances of the case as the facts which form its basis concern a criminal sanction for sexual activities occurring in a public place and in the presence of a very young child.        The applicant replies that he exhausted the domestic remedies by applying to the trial judge for prohibitory relief in respect of the prosecution on the count of buggery, by invoking the Irish Constitution and the Convention in this respect, and by appealing against his conviction and sentence.   Also, no remedy could have been of any avail in view of the Irish Supreme Court's judgment in the Norris case [1984], where the Supreme Court found that Section 61 of the 1861 Act was not unconstitutional.        The applicant submits that the law as such, as it stood at the relevant time and until 1993, put him under the risk of prosecution for consensual buggery.   Indeed, the 1993 amendment is a further indication, in his view, that Section 61 of the 1861 Act was regarded as too broadly drafted.   The applicant further contends that it is not a question of what evidence was in the hands of the prosecution in his case, which determines whether a violation of the Convention has occurred.   The problem lies in the fact that the statute was too widely drafted, so as to encompass consensual buggery.        The applicant argues that in any event although he was charged with rape and forced buggery, having been acquitted on the charge of rape, it was clear that the buggery would have to be viewed as consensual.   It is no argument to say that it was impossible to know the reasons for the jury's verdict, this very fact being in conflict with Articles 5 and 6 (Art. 5, 6) of the Convention.   Furthermore, it was clear from the trial records that the only major issue which was disputed was whether the sexual activity between the applicant and the complainant in the evening of 11/12 November 1990 had been consensual.        The applicant finally submits that the case concerns the applicant's private life, within the meaning of Article 8 (Art. 8) of the Convention, the fact that the sexual activity was carried out in the open not having any relevance.   The area was isolated and the couple were alone there. What is important is that the applicant was convicted for an essentially intimate private act, there never having been a charge that it had been performed in a public place.   2.    The Commission need not decide whether the applicant has exhausted all domestic remedies within the meaning of Article 26 (Art. 26) of the Convention as his application is in any event inadmissible for the following reasons.   a)    The Commission notes that the applicant complains in the first place that the existence in Irish law until 1993 of the offence of buggery constituted a breach of his rights under Article 8 (Art. 8) of the Convention.        The Commission recalls the Convention organs' case-law according to which the existence of a prohibition in criminal law of homosexual conduct between adults in private may constitute a continuous situation affecting directly a homosexual's private life.   This is so because a homosexual finds himself in a situation where he either respects the law and refrains, even in private and with consenting partners, from prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.   In particular, in the Norris case, the continuous situation stemming from the existence of buggery as a felony under Irish law and of Section 61 of the 1861 Act, the same provision under which the applicant in the present case was convicted, was found to be in breach of a homosexual's right to respect for his private life (the Norris v. Ireland judgment, loc. cit.; cf. also the Dudgeon v. the United Kingdom judgment, loc. cit., and Eur. Court HR, Modinos v. Cyprus judgment of 22 April 1993, Series A no. 259).        However, the Commission notes that the applicant in the present case is not in any way under the effects of a continuous situation where he lives under constant fear of prosecution.   Indeed, the applicant has never claimed that he was disposed to a style of sexual life which would have been interpreted as buggery under Irish law before 1993, or that acts of such nature had become an indispensable necessity for him.   His only statement in this respect, made during his trial, was that the complainant had introduced sexual acts of that nature in their relations and that they had gradually become a normal, albeit not regular, part of the couple's sexual life.   Furthermore, the Commission notes that the Irish law as regards buggery was changed in 1993, more than six months prior to the introduction of the present application.        The Commission finds, therefore, that insofar as the applicant complains of the very existence, until 1993, of the legislation criminalising certain types of sexual activities, his application does not disclose any appearance of a violation of the Convention and has to be rejected under Article 27 (Art. 27) of the Convention.   b)    The applicant also complains that he was convicted and sentenced for having committed anal intercourse with an adult woman, with her consent.   He contends that this conviction and sentence constituted an unjustified interference with his private life contrary to Article 8 (Art. 8) of the Convention.        However, the Commission considers that the jury's verdict and the sentence in the applicant's case cannot be interpreted as a conviction and sentence for a consensual sexual activity, as suggested by the applicant.        The Commission recalls that in his directions to the jury the trial judge emphasised that the jury could take it from the fact that the complainant was not charged and from all the circumstances of the case that the allegation was that the buggery which had taken place was not consensual but was forced.   It is true that the trial judge added that if the jury saw fit to return a verdict of guilty on the count of buggery alone, it seemed to mean that in fairness he would have to find that the buggery was a consensual act and accordingly that he could be constrained to look at the matter with more leniency than normally so grave a charge as buggery would require.   It is true, too, that in imposing sentence the trial judge observed that he was required to interpret the jury's finding as meaning that he should "approach ... sentence on the basis of consensual activity ... in the context of Count 3."   However, it is clear from the remarks of the judge, read as a whole, that he did not interpret the jury's verdict as meaning that the complainant consented to the act of buggery on the occasion in question but that in imposing sentence he was required to approach the matter on the basis of a version of the facts favourable to the applicant.        The Commission accordingly considers that the applicant was not convicted or sentenced for an act of consensual buggery.   Therefore, the Commission finds that the applicant's conviction and sentence did not constitute an unjustified interference with his private life within the meaning of Article 8 (Art. 8) of the Convention.        It follows that the remainder of the application is manifestly ill-founded and has to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                M.P. PELLONPÄÄ      Secretary                                 Acting President to the First Chamber                          of the First Chamber