Instantie

Europese Hof voor de rechten van de mens

Samenvatting

Klagers maken deel uit van een groep homoseksuele mannen die in besloten kring
sadomasochistische ontmoetingen organiseerden. Nimmer had dit tot een
doktersbehandeling of blijvend letsel geleid. Alle handelingen hadden de
instemming van betrokkenen. Klagers zijn veroordeeld voor `assault and
wounding’. Dat er sprake is geweest van vrijwilligheid en toestemming is niet
relevant omdat in dit geval door het gebruik van een bepaalde mate van geweld
daadwerkelijk lichamelijk letsel een mogelijk gevolg zou kunnen zijn geweest.
Het Hof heeft uitgesproken dat niet alleen seksuele handelingen maar ook
`sexual orientation’ een `intimate aspect of private life’ betreft. Het Hof
oordeelt echter dat artikel 8 EVRM niet is geschonden omdat de vervolging
nodig was `in a democratic society for the protection of health within the
meaning of article 8 & 2 of the Convention.’

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The scope of this margin of appreciation is not identical in each case but
will vary according to the context. Relevant factors include the nature of
the Convention right in issue, its importance for the individual and the
nature of the activities concerned (see the Buckley v. the United Kingdom
judgment of 25 September 1996, Reports of Judgments and Decisions
1996-…, p. …, 74).

43. The Court considers that one of the roles which the State is
unquestionably entitled to undertake is to seek to regulate, through the
operation of the criminal law, activities which involve the infliction of
physical harm. This is so whether the activities in question occur in the
course of sexual conduct or otherwise.

44. The determination of the level of harm that should be tolerated by the
law in situations where the victim consents is in the first instance a matter
for the State concerned since what is at stake is related, on the one hand,
to public health considerations and to the general deterrent effect of the
criminal law, and, on the other, to the personal autonomy of the individual.

45. The applicants have contended that, in the circumstances of the case, the
behaviour in question formed part of private morality which is not the
State’s business to regulate. In their submission the matters for which they
were prosecuted and convicted concerned only private sexual behaviour.
The Court is not persuaded by this submission. It is evident from the facts
established by the national courts that the applicants’ sado-masochistic
activities involved a significant degree of injury or wounding which could
not be characterised as trifling or transient. This, in itself, suffices to
distinguish the present case from those applications which have previously
been examined by the Court concerning consensual homosexual behaviour in
private between adults where no such feature was present (see the Dudgeon v.
the United Kingdom judgment cited above, the Norris v. Ireland judgment of 26
October 1988, Series A no. 142, and the Modinos v. Cyprus judgment of 22
April 1993, Series A no. 259)

46. Nor does the Court accept the applicants’ submission that no prosecution
should have been brought against them since their injuries were not severe
and since no medical treatment had been required.
In deciding whether or not to prosecute, the State authorities were entitled
to have regard not only to the actual seriousness of the harm caused – which
as noted above was considered to be significant – but also, as stated by Lord
Jauncey of Tullichettle (see paragraph 21 above), to the potential for harm
inherent in the acts in question. In this respect it is recalled that the
activities were considered by Lord Templeman to be `unpredictably dangerous’
(see paragraph 20 above).

47. The applicants have further submitted that they were singled out partly
because of the authorities’ bias against homosexuals. They referred to the
recent judgment in the Wilson case (see paragraph 30 above), where, in their
view, similar behaviour in the context of a heterosexual couple was not
considered to deserve criminal punishment.
The Court finds no evidence in support of the applicants’ allegations in
either the conduct of the proceedings against them or the judgment of the
House of Lords. In this respect it recalls the remark of the trial judge when
passing sentence that `the unlawful conduct now before the court would be
dealt with equally in the prosecution of heterosexuals or bisexuals if
carried out by them’ (see paragraph 11 above).
Moreover, it is clear from the judgment of the House of Lords that the
opinions of the majority were based on the extreme nature of the practices
involved and not the sexual proclivities of the applicants (see paragraphs 21
and 21 above).
In any event, like the Court of Appeal, the Court does not consider that the
facts in the Wilson case were at all comparable in seriousness to those in
the present case (see paragraph 30 above).

48. Accordingly, the Court considers that the reasons given by the national
authorities for the measures taken in respect of the applicants were relevant
and sufficient for the purposes of Article 8, 2.

49. It remains to be ascertained whether these measures were proportionate to
the legitimate aim or aims pursued.
The Court notes that the charges of assault were numerous and referred to
illegal activities which had taken place over more than ten years. However,
only a few charges were selected for inclusion in the prosecution case. It
further notes that, in recognition of the fact that the applicants did not
appreciate their actions to be criminal, reduced sentences were imposed on
appeal (see paragraphs 15-17 above). In these circumstances, bearing in mind
the degree of organisation involved in the offences, the measures taken
against the applicants cannot be regarded as disproportionate.

50. In sum, the Court finds that the national authorities were entitled to
consider that the prosecution and conviction of the applicants were necessary
in a democratic society for the protection of health within the meaning of
Article 8 2 of the Convention.

51. In view of this conclusion the Court, like the Commission, does not find
it necessary to determine whether the interference with the applicants’ right
to respect for private life could also be justified on the ground of the
protection of morals. This finding, however, should not be understood as
calling into question the prerogative of the State on moral grounds to seek
to deter acts of the kind in question.

For these reasons, the court unanimously Holds that there has been
no violation of Article 8 of the Convention.

Rechters

Mrs Bernhardt, Pettiti, Russo, Spielmann, Freeland, Loppes Rocha, Wildhaber,Küris, Levits