3 Case studies
3.1 Article 8 Cases
3.1.2 Dudgeon v. the United Kingdom
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under the exception of Article 8, such as whether the interference was “in accordance with the law,” pursued “a legitimate aim,” or was “necessary in democratic society.”
The UK government stated that the measures “were in the interests of the economic well-being of the country and the preservation of the environment and public health.”112 The Court found that these measures “pursued the legitimate aim of protecting the “rights of others” through preservation of the environment.”113 Regarding the question of “necessity in democratic society,” the Court stated that such interference would be considered if it “answers a pressing social need and, in particular, if it is proportionate to the legitimate aim pursued.”114
Following Buckley v. UK (1996) the Court ruled by a majority of 10 to 7 that there was no violation of rights under the Article 8 of the Convention. The Court noted that even though person might belong to a minority with a traditional lifestyle different from that of the majority, this “does no confer an immunity from general laws intended to safeguard the assets of the community a s whole, such as the environment.”115
3.1.2 Dudgeon v. the United Kingdom
In this important Case, the applicant Jeffrey Dudgeon lodged a complaint against the existence of laws in Northern Ireland, which were making certain acts between two homosexual men criminal offences.116 Applicant stated that as a homosexual, the existence of such laws had caused him psychological distress, fear of harassment and blackmail.117 Government was defending itself by claiming that the existence of such
112 Case of Chapman v. the United Kingdom, Application No. 27238/95 (2001). Para. 80.
113 Ibid. Para. 82.
114 Ibid. Para. 90.
115 Ibid. Para. 96.
116 Homosexual act between females has never been considered a criminal offence.
117 Case of Dudgeon v. the United Kingdom, Application No. 7525/76 (1981). Para. 37.
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laws was necessary in order to protect morals and the rights and freedoms of others.118 When deciding whether to support the claimant and his right for respect for private and family life enshrined by Article 8(1), or the Government opinion that such laws are necessary in order to ensure the moral safety of the majority population, and their rights enshrined by the Article 8(2), we have to evaluate the particular law, legitimacy and also the necessity in democratic society. The Government's position was strongly influenced by the eminent role of religion in the society. For Northern Ireland as a strongly catholic country, any acceptance of homosexual behavior was definitely a challenge for the general public, closely connected to the religion.
The European Convention gives States relatively wide margin of appreciation, taking into account that some issues might be too sensitive for different nations, cultures and religions. Therefore, it is on each state how far it will go with the law implementation and realization, but within the borders drawn by the Convention. This can be illustrated by the variety of laws governing the marriages or cohabitation of same sex adults. Many Member States of the Council of Europe enacted laws allowing neutralized marriages.119 In many other countries domestic law provides for the so-called civil unions or registered partnerships, which however are not at the same level as marriages.
Nevertheless, the minimum requirement for the Government is to follow its negative obligations not to interfere and criminalize actions between consenting adult individuals. The Court ruled in favor of applicant, and set an important legal precedent of decriminalization of homosexuality among the Council of Europe members. The Court stated that ”as compared with the era when that legislation was
118 ECHR Article 8(2)
119 In Europe same sex marriages are legalized in Belgium, France, Iceland, Netherlands, Norway, Spain, Sweden, and Portugal, and in many other countries their legalization is currently in process.
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enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behavior to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied.”120
Regarding the situation in Northern Ireland, the Court further stated that the authorities have refrained in recent years from enforcing the law in respect of homosexual acts between consenting males over 21 years. Additionally, the Court noted that there has been no evidence that such decision would be injuring the moral standards in Northern Ireland, or impose the risk of harm to vulnerable sections of society requiring protection. Moreover, there has been no public demand for stricter enforcement of the law. Therefore it could not be maintained that there was a
“pressing social need” to keep such acts criminal offences.121 The Court concluded that “although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adult alone who are involved.”122
In the Paragraph 62 of the Judgment, the Court agreed that reasons given by Government were relevant, however the concern that “any relaxation in the law could tend to erode existing moral standards cannot, without more, warrant interfering with the applicant’s private life to such extend.”123
120 Case of Dudgeon v. the United Kingdom, Application No. 7525/76. Para. 60.
121 Ibid.
122 Ibid.
123 Ibid. Para. 61.
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