Norris v. Ireland

Application No. 10581/83; (1988) 13 EHRR 186; [1988] ECHR 22
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Country: Ireland
Region: Europe
Year: 1988
Court: European Court of Human Rights
Health Topics: Mental health, Sexual and reproductive health
Human Rights: Right to privacy
Tags: Buggery, Criminalization, Depression, Gay, Homosexual, Humiliating treatment, Isolation, LGBTI, Queer, Sexual orientation, Sodomy

The appellant, Mr. Norris, complained against the laws in Ireland which criminalized consensual homosexual acts (the impugned provisions). The applicant was a gay Irish citizen and gay rights advocate who claimed to suffered deep depression and loneliness arising from his inability to express his sexuality. He gave evidence of certain health and other detrimental effects (including anxiety attacks, verbal abuse and threats, and having his mail opened by postal authorities) which he believed were a result of Ireland’s criminalization of homosexuality. The State had never initiated any action against him, however the applicant feared prosecution or social condemnation, which he claimed had restricted him in a number of subtle but insidious ways. The applicant argued that as a homosexual he faced constraints on liberties that were ancillary to citizenship and ought to be safeguarded by the State.

In 1977 the applicant challenged the impugned provisions in the Irish High Court, claiming that the impugned provisions were not in force by reason of the effect of Article 50 of the Constitution (which set forth that any laws passed prior to the Constitution which were inconsistent with the Constitution’s provisions were no longer in force). The suit was dismissed on legal grounds. On appeal, the Supreme Court upheld the High Court judgment, holding that, as the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) had not yet been made part of Irish law, the claim that the impugned provisions were inconsistent with the Convention, and therefore Irish law, was erroneous.  The Supreme Court went on to determine that the impugned provisions were consistent with the Constitution.

In 1983, the applicant, along with the National Gay Federation, brought the appeal before the European Commission of Human Rights, arguing a breach under Articles 1 (obligation to respect human rights), 8 (right to privacy and family live) and 13 (right to effective remedy) of the Convention. The Commission agreed that there had been a violation of Article 8.

The Court addressed whether the applicant was entitled to the claim to be a victim under Article 25 of the Convention (setting forth whom the Commission may receive petitions from), considering that the impugned provisions had never been enforced against the applicant. The Court held that the applicant did have the locus standi of being a victim within the meaning of Article 25, because the article entitled an individual to challenge any law that abrogated his rights, provided that such person was actually affected by the rule or law to which he raised an objection. The Court noted that even if a law was not enforced against a particular class of cases, the fact that it remained on the books meant that it could be applied at any time; the applicant was therefore at risk of being directly affected by the impugned provisions. Furthermore, the Court pointed out that one effect of criminal sanctions against homosexuality was the increase in public stigmatization of homosexuals, which could have negative effects on mental health.

The second issue was with regarding the applicant’s claim under Article 8 of the Convention (guaranteeing the right to privacy, and respect for family life). The Commission had found that, despite the fact there had been no State interference with the applicant’s private life to date, the impugned provisions did interfere with the appellant’s right to privacy, as homosexual acts committed within the private sphere were banned, even when committed between consenting adults. The Court upheld this reasoning and then examined whether there was justification for this interference. The requirement for proving justification for interference was two pronged:  the interference must be in accordance with the law and must have a legitimate aim which was necessary for democratic society. The Court noted that the impugned provisions were in accordance with law and for the purpose of upholding a legitimate aim (i.e., public morality), so the issue really came down to whether the impugned regulations were necessary to satisfy such aim. On this point, the Court held that there was no such pressing social need which necessitated the criminalization of homosexual acts, and as such, there was no justification for this interference.

Thirdly, the Court examined whether the applicant was entitled to legal costs and expenses, under Article 50 of the Convention. The Court rejected the claim for damages, holding that by finding the impugned laws to be in contravention of Article 8, the applicant had been granted adequate satisfaction. The Court did allow for the payment of costs and expenses to the applicant.

Several judges joined in a dissent on the issue of whether the applicant should be considered a victim under Article 25. This dissent argued that as the applicant was not subjected to any action, penalty or other measure by the public authorities in question, there could not be any enforcement of the impugned laws against him. Therefore, as he had never been personally subjected to any penal measure, and as the likelihood of such prosecution was slim, deeming him a ‘victim’ was too broad an interpretation of the term.

“The Court further agrees with the Government that the conditions governing individual applications under Article 25 (art. 25) of the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 25 (art. 25) and, whilst those purposes may sometimes be analogous, they need not always be so. Be that as it may, the Court has held that Article 25 (art. 25) of the Convention entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it.” (paragraph 31)

38. The Court agrees with the Commission that, with regard to the interference with an Article 8 (art. 8) right, the present case is indistinguishable from the Dudgeon case. The laws in question are applied so as to prosecute persons in respect of homosexual acts committed in the circumstances mentioned in the first sentence of paragraph 33. …It is true that, unlike Mr Dudgeon, Mr Norris was not the subject of any police investigation. However, the Court’s finding in the Dudgeon case that there was an interference with the applicant’s right to respect for his private life was not dependent upon this additional factor. As was held in that case, "the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for his private life ... within the meaning of Article 8 para. 1 (art. 8-1). In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life ..." (paragraph 38)

 

“Applying the same tests to the present case, the Court considers that, as regards Ireland, it cannot be maintained that there is a "pressing social need" to make such acts criminal offences. On the specific issue of proportionality, the Court is of the opinion that "such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. 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 adults alone who are involved”.” (paragraph 46)

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