European Court of Human Rights

AuthorClaire de Than
DOI10.1177/002201830106500407
Published date01 August 2001
Date01 August 2001
Subject MatterArticle
European Court
of
Human Rights
Whether
Conviction
for Gross
Indecency
Violated
the
Right
to Respect for
Private
Life
ADTv
United Kingdom (App. No.
35765/97,
31
July
2000)
The applicant's
house
was searched by police
and
a
number
of items
were
seized, including video tapes
which
showed
him
engaging in
sexual acts
with
four
other
men.
He was charged
with
gross indecency
on
the
basis of
one
of
the
tapes. The sexual acts depicted
were
con-
sensual,
non-violent
and
took
place in
the
applicant's
home.
The tapes
had
not
been
shown
to
anyone
other
than
the
participants. The appli-
cant
was convicted
and
the
tapes
were
seized
and
destroyed. He did
not
appeal against conviction after legal advice
that
he
had
no
prospect of
success. He alleged
that
his conviction for gross indecency
was
aviola-
tion of Article 8 of
the
European
Convention
on
Human
Rights,
both
on
the
general
basis
that
the
criminal
law
prohibited
consensual
homo-
sexual activity in a private place if it involved
more
than
two
partici-
pants,
and
also because
that
law
had
resulted in his conviction. The
United Kingdom
government
responded
that
there
had
been
no inter-
ference
with
the
applicant's right
to
respect for his private life since
the
sexual activity
concerned
was
not
within
the
definition of 'private life'
under
Article 8.
HELD,
FINDING
A
VIOLATION,
there
had
been
an
interference
with
the
applicant's right to respect for his private life in
both
ways he
had
alleged. The
interference
was in accordance
with
the
law
and
had
the
legitimate aims of protecting morals
and
protecting
the
rights
and
free-
doms
of others. Thus
the
key
issue was
whether
the
law
and
its use in
the
applicant's conviction
were
necessary in a democratic society. Whilst
it is possible
that
State interference
with
some
sexual activities will be
justified, this did
not
apply in
the
present
case since
the
sexual activity
was carried
out
in private
without
any
intention
to publicise it. As held
in Dudgeon vUnited Kingdom
(1982)
4EHRR 149,
the
margin
of appreci-
ation
is
very
narrow
in cases
which
involve
intimate
aspects of private
life.
There
were
insufficient reasons
both
for
the
existence of
the
legisla-
tion,
which
criminalised private
homosexual
acts,
and
for
the
conviction
of
the
applicant,
which
was
disproportionate. Hence
there
was a viola-
tion
of Article 8.
The
European
Court
did
not
find it necessary to
consider
the
applicant's additional allegation
that
the
law
in
question
violated Article 14 in
combination
with
Article 8by criminalising
homo-
sexual
male
activity only.
COMMENTARY
In Sutherland vUnited Kingdom (App. No.
00025186/94,
2001)
the
issue
of ages of
consent
was finally resolved
when
the
case was struck off
the
list;
the
Sexual Offences
(Amendment)
Act
2000
came
into
force
on
8
January
2001
and
reduced
the
age of
consent
for gay
men
to
16.
334

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