CASE OF MODINOS v. CYPRUS

1. The case was referred to the Court on 21 February 1992 by the European Commission of Human Rights ("the Commission"), within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 15070/89) against Cyprus lodged with the Commission under Article 25 (art. 25) on 25 May 1989 by Mr Alecos Modinos, a Cypriot citizen.
The Commission ’ s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Cyprus recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 (art. 8) of the Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mr A.N. Loizou, the elected judge of Cypriot nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). In a letter to the President of 10 March 1992, Mr Loizou stated that he wished to withdraw pursuant to Rule 24 para. 3 as he had been a member of the Supreme Court of Cyprus in a case where comparable issues had been examined (see paragraph 11 below). On 10 April 1992 the Agent of the Government of Cyprus ("the Government") informed the Registrar that Mr Justice Georghios Pikis had been appointed as ad hoc judge (Article 43 of the Convention and Rule 23) (art. 43).
On 25 March 1992 the President had drawn by lot, in the presence of the Registrar, the names of the seven other members of the Chamber, namely Mr F. Matscher, Mr R. Bernhardt, Mr A. Spielmann, Mr I. Foighel, Mr F. Bigi, Sir John Freeland and Mr A.B. Baka (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. On 10 April 1992 the International Lesbian and Gay Association sought leave under Rule 37 para. 2 to submit written comments. On 12 May 1992 the President decided not to grant leave.
5. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the applicant ’ s representative on the organisation of the procedure (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received, on 17 June 1992, the applicant ’ s and the Government ’ s memorials. On 30 June the Secretary to the Commission informed him that the Delegate would submit his observations at the hearing.
6. In accordance with the President ’ s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 27 October 1992. The Court had held a preparatory meeting beforehand. Prior to the hearing the applicant had filed a supplementary claim for costs.
There appeared before the Court:
Mr R. Gavrielides, Senior Counsel, Deputy Agent,
Mrs L. Koursoumba, Senior Counsel, Counsel;
Mr A. Demetriades, Barrister-at-law, Counsel.
The Court heard addresses by Mr Gavrielides for the Government, by Mr Loucaides for the Commission and by Mr Demetriades for the applicant. During the hearing various documents were filed by the applicant.
7. The applicant is a homosexual who is currently involved in a sexual relationship with another male adult. He is the President of the "Liberation Movement of Homosexuals in Cyprus ". He states that he suffers great strain, apprehension and fear of prosecution by reason of the legal provisions which criminalise certain homosexual acts.
8. Sections 171, 172 and 173 of the Criminal Code of Cyprus, which predates the Constitution, provide as follows:
(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."
9. Various Ministers of Justice had indicated in statements to newspapers dated 11 May 1986, 16 June 1988 and 29 July 1990, that they were not in favour of introducing legislation to amend the law relating to homosexuality. In a statement to a newspaper on 25 October 1992 the Minister of the Interior stated, inter alia, that although the law was not being enforced he did not support its abolition.
10. The relevant provisions of the Constitution of the Republic of Cyprus, which came into force on 16 August 1960, read 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 is 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."
3. Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the Official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto."
"1. This Constitution shall be the supreme law of the Republic.
2. No law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ, authority or person in the Republic exercising executive power or any administrative function shall in any way be repugnant to, or inconsistent with, any of the provisions of this Constitution."
"1. Subject to the provisions of this Constitution and to the following provisions of this Article, all laws in force on the date of the coming into operation of this Constitution shall, until amended, whether by way of variation, addition or repeal, by any law or communal law, as the case may be, made under this Constitution, continue in force on or after that date, and shall, as from that date be construed and applied with such modification as may be necessary to bring them into conformity with this Constitution.
4. 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.
‘ law ’ includes any public instrument made before the date of the coming into operation of this Constitution by virtue of such law;
‘ modification ’ includes amendment, adaptation and repeal."
11. In the case of Costa v. The Republic (2 Cyprus Law Reports, pp. 120-133 [1982]) the accused - a 19 year-old soldier - was convicted of the offence of permitting another male person to have carnal knowledge of him contrary to section 171(b) of the Criminal Code. The offence was committed in a tent within the sight of another soldier using the same tent. The accused had contended that section 171(b) was contrary to Article 15 of the Constitution and/or Article 8 (art. 8) of the European Convention on Human Rights. In its judgment of 8 June 1982 the Supreme Court noted that, since the offence was not committed in private and since the accused was a soldier who was 19 years of age at the time, the constitutional and legal issues raised by the case fell outside the ambit of the construction given to Article 8 (art. 8) by the European Court of Human Rights in its Dudgeon v. the United Kingdom judgment of 22 October 1981 (Series A no. 45). The Supreme Court, nevertheless, added that it could not follow the majority view of the Court in the Dudgeon case and adopted the dissenting opinion of Judge Zekia. The court stated as follows:
"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 ...
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."
D. The prosecution policy of the Attorney-General
12. There had been prosecutions and convictions in Cyprus for homosexual conduct in private between consenting adults up until the 1981 judgment of the European Court in the Dudgeon case (loc. cit.). When this case was pending before the European Court the Attorney-General requested the police not to continue with a prosecution under section 171 because of apparent conflict between that provision and Article 8 (art. 8) of the Convention. Since that date the Attorney-General ’ s office has not allowed or instituted any prosecution which conflicts with either Article 8 (art. 8) of the Convention or Article 15 of the Constitution, in so far as they relate to homosexual behaviour in private between consenting adults.
Under Article 113 of the Constitution of Cyprus the Attorney-General is vested with competence to institute and discontinue criminal proceedings in the public interest. Although he could not prevent a private prosecution from being brought he can intervene to discontinue it.
PROCEEDINGS BEFORE THE COMMISSION
13. In his application before the Commission (no. 15070/89) lodged on 22 May 1989, the applicant complained that the prohibition on male homosexual activity constituted a continuing interference with his right to respect for private life in breach of Article 8 (art. 8) of the Convention.
14. On 6 December 1990 the Commission declared the application admissible. In its report of 3 December 1991, drawn up under Article 31 (art. 31) of the Convention, it concluded unanimously that there had been a breach of Article 8 (art. 8).
The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*].
FINAL SUBMISSIONS MADE BY THE GOVERNMENT
15. At the hearing on 27 October 1992 the Government requested the Court to find that there had been no breach of Article 8 (art. 8).
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
16. The applicant complained that the maintenance in force of provisions of the Cypriot Criminal Code (see paragraph 8 above) which criminalise private homosexual relations constitutes an unjustified interference with his right to respect for private life under Article 8 (art. 8) of the Convention which reads:
"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."
A. The existence of an interference
17. The Government submitted that neither the applicant nor any other person in his situation could be lawfully prosecuted under sections 171, 172 and 173 of the Cypriot Criminal Code, since, to the extent that these provisions concerned homosexual relations in private between consenting male adults, they are in conflict with Article 15 of the Cypriot Constitution (see paragraph 10 above) and Article 8 (art. 8) of the Convention. To that extent the prohibition of such relations is in fact no longer in force. Moreover, since 1981 the Attorney-General, who has exclusive competence to institute and discontinue criminal proceedings, has not brought or permitted a prosecution in respect of such homosexual conduct (see paragraph 12 above). Accordingly, there being no risk of prosecution, there is no interference with the applicant ’ s rights under Article 8 (art. 8).
18. The applicant disagreed. In his view, the impugned provisions are still in force. He pointed to the statements of various Government ministers who, by objecting to the amendment of the law, had implicitly acknowledged its validity (see paragraph 9 above). Moreover, the policy of the Attorney-General not to prosecute could change at any time and a member of the public could bring a private prosecution against the applicant. There is thus no guarantee that he will not be prosecuted.
19. For the Commission, the applicant ’ s fear of prosecution could not be regarded as unfounded.
20. The Court first observes that the prohibition of male homosexual conduct in private between adults still remains on the statute book (see paragraph 8 above). Moreover, the Supreme Court of Cyprus in the case of Costa v. The Republic considered that the relevant provisions of the Criminal Code violated neither the Convention nor the Constitution notwithstanding the European Court ’ s Dudgeon v. the United Kingdom judgment of 22 October 1981 (Series A no. 45) (see paragraph 11 above).
21. The Government, however, have maintained that this case was decided by the Supreme Court in June 1982, prior to the Norris v. Ireland judgment of 26 October 1988 (Series A no. 142) and before the implications of the Dudgeon decision were properly understood; and further that since the Costa case did not concern private homosexual relations between adults the Supreme Court ’ s remarks concerning the Dudgeon judgment were obiter dicta.
22. In the Court ’ s view, whatever the status in domestic law of these remarks, it cannot fail to take into account such a statement from the highest court of the land on matters so pertinent to the issue before it (see, mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, pp. 23-24, para. 52).
23. It is true that since the Dudgeon judgment the Attorney-General, who is vested with the power to institute or discontinue prosecutions in the public interest, has followed a consistent policy of not bringing criminal proceedings in respect of private homosexual conduct on the basis that the relevant law is a dead letter.
Nevertheless, it is apparent that this policy provides no guarantee that action will not be taken by a future Attorney-General to enforce the law, particularly when regard is had to statements by Government ministers which appear to suggest that the relevant provisions of the Criminal Code are still in force (see paragraph 9 above). Moreover, it cannot be excluded, as matters stand, that the applicant ’ s private behaviour may be the subject of investigation by the police or that an attempt may be made to bring a private prosecution against him.
24. Against this background, the Court considers that the existence of the prohibition continuously and directly affects the applicant ’ s private life. There is therefore an interference (see the above-mentioned Dudgeon and Norris judgments, Series A nos. 45 and 142, pp. 18-19, paras. 40-41, and pp. 17-18, paras. 35-38).
B. The existence of a justification under Article 8 para. 2 (art. 8-2)
25. The Government have limited their submissions to maintaining that there is no interference with the applicant ’ s rights and have not sought to argue that there exists a justification under paragraph 2 of Article 8 (art. 8-2) for the impugned legal provisions. In the light of this concession and having regard to the Court ’ s case-law (see the above-mentioned Dudgeon and Norris judgments, pp. 19-25, paras. 42-62, and pp. 18-21, paras. 39-47), a re-examination of this question is not called for.
26. Accordingly, there is a breach of Article 8 (art. 8) in the present case.
II. APPLICATION OF ARTICLE 50 (art. 50)
27. Under Article 50 (art. 50) of the Convention:
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
28. The applicant first submitted that he should be awarded a sum to compensate him for the amount of time he has lost from his work as a self-employed architect by participating in the Strasbourg proceedings as well as an amount for mental stress and suffering.
29. Both the Government and the Delegate of the Commission considered that no award should be made.
30. The Court considers that, in the circumstances of the case, the finding of a breach of Article 8 (art. 8) constitutes sufficient just satisfaction under this head for the purposes of Article 50 (art. 50).
31. The applicant also claimed 7,730 Cyprus pounds in respect of legal fees and 2,836 Cyprus pounds by way of travelling, subsistence and other out-of-pocket expenses connected with the Strasbourg proceedings.
32. The Government considered that it would be fair and reasonable to limit the award of costs to 1,000 Cyprus pounds but had no objection to awarding the full amount claimed for expenses.
33. Taking its decision on an equitable basis, as required by Article 50 (art. 50), and applying the criteria laid down in its case-law, the Court holds that the applicant should be awarded 4,000 Cyprus pounds in respect of fees together with the full amount claimed by way of expenses.
1. Holds by eight votes to one that there is a breach of Article 8 (art. 8) of the Convention;