CASE OF DUDGEON v. THE UNITED KINGDOM (ARTICLE 50)
Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
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).