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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> DUDGEON v. THE UNITED KINGDOM (ARTICLE 50) - 7525/76 [1983] ECHR 2 (24 February 1983)
URL: http://www.bailii.org/eu/cases/ECHR/1983/2.html
Cite as: [1983] ECHR 2, (1983) 5 EHRR 573
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In the Dudgeon case,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court (*), as a Chamber composed of the
following judges:
_______________
(*) Note by the Registrar: That is, the version of the Rules
applicable when proceedings were instituted. A revised version of
the Rules of Court entered into force on 1 January 1983, but only in
respect of cases referred to the Court after that date.
_______________
Mr. R. Ryssdal, President,
Mr. J. Cremona,
Mr. D. Evrigenis,
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Mr. B. Walsh,
Sir Vincent Evans, Judges,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 1 October, 23 and 24 November 1982,
and on 29 January 1983,
Delivers the following judgment, which was adopted on the last
mentioned date, on the application in the present case of Article 50
(art. 50) of the Convention:
PROCEDURE AND FACTS
1. The Dudgeon case was referred to the Court by the European
Commission of Human Rights ("the Commission") in July 1980. The case
originated in an application against the United Kingdom of Great
Britain and Northern Ireland lodged with the Commission on 22 May 1976
by a United Kingdom citizen, Mr. Jeffrey Dudgeon.
2. On 30 January 1981, the Chamber constituted to hear the case
relinquished jurisdiction in favour of the plenary Court (Rule 48 of
the Rules of Court). By judgment of 22 October 1981, the plenary
Court held, inter alia, that the applicant had been the victim of a
breach of Article 8 (art. 8) of the Convention by reason of the
existence in Northern Ireland of laws which had the effect of making
certain homosexual acts committed in private between consenting adult
males criminal offences (Series A no. 45, point 1 of the operative
provisions and paragraphs 37-63 of the reasons, pp. 27 and 17-25).
The only outstanding matter to be settled in the present case is the
question of the application of Article 50 (art. 50). Accordingly,
as regards the facts the Court will confine itself here to giving the
pertinent details; for further particulars, reference should be made
to paragraphs 13 to 33 of the above-mentioned judgment (ibid.,
pp. 7-16).
3. At the hearing held on 23 April 1981, counsel for the applicant
had stated that, should the Court find a violation of the Convention,
his client would be seeking just satisfaction under Article 50
(art. 50) to obtain financial compensation for damage suffered and for
legal and other expenses incurred. The Government of the United
Kingdom ("the Government"), for their part, had taken no stand on the
matter.
In its judgment of 22 October 1981, the Court reserved the whole of
the question of the application of Article 50 (art. 50) and referred
it back to the Chamber under Rule 50 § 4 of the Rules of Court. On the
same day, the Chamber invited the Commission to submit, within the
coming two months, written observations thereon, including
notification of any friendly settlement at which the Government and
the applicant might have arrived (ibid., p. 48).
4. Following two extensions by the President of the Chamber of the
above-mentioned time-limit and in accordance with his orders and
directions, the following documents were filed at the registry:
- on 17 May 1982, the observations of the Delegates of the Commission,
appended to which were, inter alia, details of the applicant's claim;
- on 6 August 1982, a memorial from the Government;
- on 15 September 1982, the reply of the Delegates to a question
raised therein by the Government;
- on 15 October 1982, through the Secretary to the Commission, the
observations of the applicant on the above-mentioned memorial of the
Government;
- on 15 November 1982, the comments of the Government on the latter
observations.
On 8 November 1982 and 11 January 1983, the Secretariat of the
Commission transmitted to the Registrar further observations by
Mr. Dudgeon, which the latter had sent to the Commission on his own
initiative.
These various documents revealed that it had not been possible to
arrive at a friendly settlement. The Delegates did not comment on the
merits of the applicant's claim, which may be summarised as follows:
- for damage suffered as a result of the police investigation carried
out in 1976, financial compensation of £5,000;
- for damage suffered by reason of the very existence of the
legislation successfully complained of, financial compensation of
£10,000 and a declaration by the Government that if Mr. Dudgeon were
to apply for civil service employment he would not be discriminated
against either on grounds of homosexuality or for having lodged his
petition with the Commission;
- reimbursement of costs itemised at £4,655.
Further particulars of the claim are set out below in the section "As
to the law".
5. Following the Court's judgment of 22 October 1981 and on the
initiative of the Government, an Order in Council, entitled the
Homosexual Offences (Northern Ireland) Order 1982, was made. Subject
to certain exceptions concerning mental patients, members of the armed
forces and merchant seamen, the effect of this Order, which came into
force on 9 December 1982, is to "decriminalise" in Northern Ireland
homosexual acts committed in private between two consenting males aged
21 years and over. The Order brings the relevant law in Northern
Ireland into line with that applying in the remainder of the United
Kingdom (see the above-mentioned judgment of 22 October 1981,
pp. 9-10, §§ 16-18).
6. Having consulted, through the Registrar, the Agent of the
Government and the Delegates of the Commission, the Chamber decided on
1 October 1982 that there was no call to hold hearings.
7. Mr. J. Cremona, Mr. F. Matscher and Mr. B. Walsh, substitute
judges, took the place of Mr. Thór Vilhjálmsson, Mr. G. Lagergren
and Mr. L. Liesch, who were prevented from taking part in the further
consideration of the case (Rules 22 § 1 and 24 § 1 of the Rules
of Court).
AS TO THE LAW
8. Article 50 (art. 50) of the Convention provides:
"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 present 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."
9. The applicant claimed just satisfaction for damage allegedly
caused to him by the very existence of the impugned legislation and
also by the police investigation carried out in his respect in 1976,
and for legal and other expenses incurred. The various items will be
examined separately.
I. Damage allegedly caused by the very existence of the impugned
legislation
10. The applicant alleged that as a consequence of the laws found by
the Court to be in breach of Article 8 (art. 8) of the Convention, he
had suffered "considerable damage over many years" in the form of
- psychological damage,
- prejudice to his relationships with his family and society,
- non-fulfilment of personal potential,
- injury to reputation, and
- loss of earning capacity.
The applicant put forward £10,000 as a suitable figure for
compensation.
The Government questioned the extent to which the prejudice alleged
could be said to derive from the existence of the impugned
legislation; they suggested that many of the difficulties elaborated
in the applicant's submissions derive from society's disapproval of
homosexuality rather than from the existence of the laws in question.
As their main submission, they invited the Court to find that its
judgment of 22 October 1981 itself afforded sufficient just
satisfaction for the applicant, without the need for monetary
compensation. In the alternative, they contended that the figure of
£10,000 was excessive in the circumstances.
11. The existence of the laws in question undoubtedly caused the
applicant at least some degree of fear and psychological distress;
this is clear from the grounds on which the Court found a breach of
Article 8 (art. 8) (see pp. 17, 18 and 24, §§ 37, 40, 41
and 60 of the above-mentioned judgment of 22 October 1981, Series A
no. 45).
However, just satisfaction is to be afforded only "if necessary", and
the matter falls to be determined by the Court at its discretion,
having regard to what is equitable (see the Sunday Times judgment
of 6 November 1980, Series A no. 38, p. 9, § 15 in fine).
12. The unjustified interference with Mr. Dudgeon's right to
respect for his private life resided in "the maintenance in force of
the impugned legislation in so far as it ha[d] the general effect of
criminalising private homosexual relations between adult males capable
of valid consent" (Series A no. 45, p. 24, § 61). The Government
inferred from the judgment of 22 October 1981 that the laws in
question cannot be said always to have been in breach of the
Convention, but rather became out of step with changing standards of
respect for private life under Article 8 (art. 8). Paragraph 60, on
which the Government relied, does indeed support their contention
(ibid., pp. 23-24).
Following the Court's earlier judgment, an Order in Council has been
made bringing the law of Northern Ireland into line with that of the
remainder of the United Kingdom (see paragraph 5 above).
13. The applicant did not accept that the designated age of 21 years
in the new legislation fully satisfied his claim under Article 8
(art. 8). However, within the framework of the procedure concerning
the application of Article 50 (art. 50), the task of the Court is
limited to giving a ruling on the just satisfaction, if any, to be
afforded on the basis of its decision on the substantive issues of the
case.
14. Subject to the question of the age of consent, Mr. Dudgeon
should be regarded as having achieved his objective of securing a
change in the law of Northern Ireland. This being so and having
regard to the nature of the breach found, the Court considers that in
relation to this head of claim the judgment of 22 October 1981
constitutes in itself adequate just satisfaction for the purposes of
Article 50 (art. 50), without it being "necessary" to afford financial
compensation (see, for example, mutatis mutandis, the Le Compte,
Van Leuven and De Meyere judgment of 18 October 1982, Series A no. 54,
p. 8, § 16).
15. In addition to financial compensation, the applicant initially
sought a formal declaration from the Government that if he were to
apply for civil service employment in Northern Ireland he would not be
discriminated against either on grounds of homosexuality or for having
lodged his petition with the Commission. Subsequent to making this
submission, he was appointed to a post in the Northern Ireland civil
service. He nevertheless maintained his request, believing it to be
"not unreasonable in the light of the currently precarious economic
situation in the United Kingdom as a whole and Northern Ireland in
particular".
The Court is not empowered under the Convention to direct a
Contracting State to make a declaration of the kind requested by the
applicant (see, for example, mutatis mutandis, the above-mentioned
Le Compte, Van Leuven and De Meyere judgment, Series A no. 54,
p. 7, § 13).
II. Damage allegedly caused by the police investigation
16. The applicant alleged that the police investigation carried out
in regard to him in 1976 (see the judgment of 22 October 1981, Series
A no. 45, p. 15, § 33) had caused him distress, suffering, anxiety
and inconvenience. He put forward £5,000 as a suitable figure for
compensation.
As their main submission, the Government invited the Court to find
that, under this head also, the judgment of 22 October 1981 provided
sufficient just satisfaction. In the alternative, they contended that
the figure of £5,000 was excessive.
17. As a consequence of the existence of the impugned legislation,
the police had a duty to investigate the possible commission of
offences. There has been no suggestion that in the instant case the
police acted at all illegally under domestic law. Furthermore,
Mr. Dudgeon, being under no legal constraint, could have refused their
request to accompany them to the police station. The Court does not
therefore accept the applicant's contention that his position was
analogous to that of persons wrongfully detained.
Nonetheless, the questioning of the applicant about the commission by
him of illegal homosexual acts in private with other males aged over
21 years, together with the seizure of his private papers, constituted
an intrusion into his private life. It follows from the Court's
judgment of 22 October 1981 that this intrusion was unjustified in
terms of Article 8 (art. 8) of the Convention. In addition, he was
confronted for more than a year with the prospect of a criminal
prosecution.
The Court is thus satisfied that at least some degree of distress,
suffering, anxiety and inconvenience as alleged was sustained.
18. The police investigation carried out in 1976 was, however,
simply a specific measure of implementation under the laws allowing
this kind of intrusion into the applicant's private life; its
significance lay in showing that the threat hanging over him was real
(ibid., p. 19, § 41 in fine). The judgment of 22 October 1981 has
prompted an amendment of the laws in question (see paragraph 5 above)
and, in holding there to have been a breach of Article 8 (art. 8),
afforded Mr. Dudgeon adequate just satisfaction for the damage caused
by their existence (see paragraph 14 above). In the particular
circumstances, the additional element of prejudice suffered as a
consequence of the police investigation is not such as to call for
further compensation by way of just satisfaction.
III. Costs
19. The applicant has claimed a total of £4,655 for legal and other
expenses referable to the proceedings before the Commission and the
Court.
A. Introduction
20. Costs and expenses are recoverable under Article 50 (art. 50)
provided that they were incurred by the injured party in order to
seek, through the domestic legal order, prevention or rectification of
a violation, to have the same established by the Commission and later
by the Court or to obtain redress therefor (see, inter alia, the
Neumeister judgment of 7 May 1974, Series A no. 17, pp. 20-21,
§ 43). Furthermore, it has to be established that the costs and expenses
were actually incurred, were necessarily incurred and were also
reasonable as to quantum (see, inter alia, the above-mentioned Sunday
Times judgment, Series A no. 38, pp. 13-18, §§ 23-42).
21. In the submission of the Government, in so far as certain items
of costs were in fact settled by the Northern Ireland Gay Rights
Association ("NIGRA"), those costs are not recoverable since they were
not actually incurred by the applicant himself.
The Court does not agree with this line of argument. As Mr. Dudgeon
pointed out and subject to the immediately following paragraph, the
legal costs of his case were incurred by him in the sense that he, as
client, made himself legally liable to pay his lawyers on an agreed
basis. The wholly private arrangements he made to cover his financial
obligations to his lawyers are not material for the purposes of
Article 50 (art. 50). Such private arrangements are to be distinguished
from the situation where, the lawyer having accepted to act on the
basis of receiving only the fees granted by the Commission under its
legal aid scheme, the applicant in question never was under any
liability to pay any or any additional fees (see the addendum to the
Commission's Rules of Procedure and the Luedicke, Belkacem and Koç
judgment of 10 March 1980, Series A no. 36, p. 8, § 15). Similar
reasoning applies to the other costs claimed.
B. Legal costs
1. Before the Commission
22. The applicant claimed £1,805 in respect of professional services
rendered by his then legal advisers prior to the grant of legal aid by
the Commission, which was effective only as from the date of the
admissibility decision (3 March 1978).
Of this sum, fees amounting to £1,290 were paid by agreement on a
contingency basis, that is to say, they became payable only if the
application was declared admissible. Under the domestic law of
Northern Ireland, an agreement to charge legal fees for contentious
business on a contingency basis would be unenforceable against the
client. Accordingly, Mr. Dudgeon was not under any legal liability
to pay these fees; nor, since they were settled on his behalf by
NIGRA, did he in fact pay them. This being so, he cannot be said in
any sense actually to have incurred these fees.
With regard to the remaining items, the Court has no cause to doubt
that they were actually incurred, necessarily incurred and reasonable
as to quantum.
To sum up, under this head the Court awards £515.
2. Before the Court
23. The applicant claimed reimbursement of fees of £500 for junior
counsel and £1,150 for senior counsel at the merits stage, and £460
for junior counsel at the Article 50 (art. 50) stage. The first two
items claimed were, by agreement, charged in addition to the total sum
of FF. 11,835.92 granted by the Commission as legal aid; no legal aid
payment was made in regard to the proceedings concerning the
application of Article 50 (art. 50).
24. Neither the Commission nor, except as indicated above (at
paragraph 21), the Government suggested that the applicant had
incurred no liability for costs over and above those covered by legal
aid (cf., inter alia, the Airey judgment of 6 February 1981, Series A
no. 41, p. 9, § 13).
In the circumstances, the Court has no cause to doubt that the fees
claimed were actually incurred, necessarily incurred and reasonable as
to quantum. On the latter point, it is to be noted that the sum of
FF. 11,835.92 mentioned above included FF. 10,135.92 for expenses and
disbursements, as compared with FF. 1,700 only for lawyers' fees as
such, and that the solicitor instructed by the applicant acted without
fee.
C. Administrative costs
25. A sum of £150, additional to the FF 230 received in legal aid
from the Commission for out-of-pocket expenses, was sought for
photocopying, postal and telephone costs in connection with preparing
the hearing before the Court and the submissions under Article 50
(art. 50).
In the circumstances, the Court has no cause to doubt that the
supplementary expenses were actually incurred, necessarily incurred
and reasonable as to quantum.
D. Other costs
26. Under this head, the applicant claimed firstly £540 in respect
of travel and accommodation expenses incurred in attending four
conferences in London with his legal advisers. The Government did not
challenge the necessity of attending three conferences and accordingly
stated their willingness to bear the related expenses provided that
these expenses had in fact been paid by the applicant himself and not
by NIGRA (as to which, see paragraph 21 above).
In the circumstances, the Court has no cause to doubt that the full
costs claimed were actually incurred, necessarily incurred and
reasonable as to quantum.
27. Finally, a sum of £50 was claimed for the travel and
accommodation expenses of an expert who came to Strasbourg at the
applicant's instance for the hearing on 23 April 1981.
The applicant's request for the expert in question to be heard as a
witness was submitted at short notice before the hearing and was
supported by neither the Commission nor the Government. The Court did
not accede to the proposal made, but even if it had done so it could
have taken evidence from the expert at a subsequent date either at a
hearing before the full Court (Rule 38 § 1 read with
Rule 48 § 3) or through one of its members deputed for that purpose
(Rule 38 § 2 read with Rule 48 § 3). The expert's presence in Strasbourg
on 23 April 1981 was thus not essential and the attendant costs cannot
be regarded as having been necessarily incurred.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares inadmissible the claim for just satisfaction in so far
as it seeks an order for a declaration by the United Kingdom;
2. Holds that the United Kingdom is to pay to the applicant, in
respect of costs and expenses incurred, the sum of three thousand
three hundred and fifteen pounds sterling (£3,315);
3. Rejects the remainder of the claim.
Done in English and in French, the English text being authentic, at
the Human Rights Building, Strasbourg, this twenty-fourth day of
February, one thousand nine hundred and eighty-three.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar