Monday, 4 March 2013

H.Ç. v Turkey - newly communicated case

The European Court of Human Rights has issued Questions to the Parties in the newly communicated case of H.Ç. v Turkey. This is a significant case because it concerns the continuing criminalization of male homosexual acts in the Turkish Republic of Northern Cyprus.

Male homosexual acts are not criminal in Turkey and nor are they criminal in Cyprus (as a result of Modinos v Cyprus). However, in Northern Cyprus, the law continues to criminalize 'carnal knowledge of any person against the order of nature'.

The complaint to the Court is similar to that in Dudgeon v the United Kingdom insofar as the applicant as not been subject to criminal sanction but claims to be a victim because of the very existence of the law.

Here are the full details:

THE FACTS
 
The applicant, Mr H. Ç., is a citizen of the “Turkish Republic of Northern Cyprus” (the “TRNC”), who was born in 1979 and lives in Nicosia. The President of the Second Section granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3 of the Rules of Court). He is represented before the Court by Mr J. Cooper and Mr O. Polili, lawyers practising in London and in Nicosia.
 
A. The circumstances of the case
 
The facts of the case, as submitted by the applicant, may be summarised as follows.
 
The applicant is a homosexual and his complaints are directed primarily against the existence of laws in the TRNC which have the effect of criminalising certain homosexual acts between consenting adult males. He states that although he himself has not been arrested, there have recently been arrests of homosexual and/or bisexual men in the TRNC for engaging in consensual same-sex sexual relations, and alleges that he suffers great strain, apprehension and fear of prosecution on account of the legal provisions in question.
 
B. Relevant domestic law
 
Articles 171, 172 and 173 of the Criminal Code of the TRNC provide as follows:
 
“171. Any person who –
(a) has carnal knowledge of any person against the order of nature; or
(b) permits a male person to have carnal knowledge of him against the order of nature shall be guilty of a felony and shall be liable to a term of imprisonment of up to five years.
 
172. Any person who uses violence to commit either of the offences specified in the preceding Article shall be guilty of a felony and shall be liable to a term of imprisonment of up to fourteen years.
 
173. Any person who attempts to commit either of the offences specified in Article 171 shall be guilty of a felony and shall be liable to a term of imprisonment of up to three years, and, where the attempt is accompanied by violence, shall be liable to a term of imprisonment of up to seven years.”
 
COMPLAINTS
 
The applicant maintained that the criminalisation of homosexual relations constituted an interference with human dignity amounting to degrading treatment within the meaning of Article 3 of the Convention.
 
The applicant complained that the maintenance in force of those provisions of the Criminal Code which criminalise homosexual relations constituted an unjustified interference with his rights as protected by Article 8 of the Convention. The applicant also claimed to be a victim of discrimination, in breach of Article 14 taken in conjunction with Article 8.
 
QUESTION TO THE PARTIES
 
Having regard to Articles 171-173 of the Criminal Code of “Turkish Republic of Northern Cyprus” and in light of the case Modinos v. Cyprus (22 April 1993, Series A no. 259), has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention?


These details are also available on HUDOC:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-117167



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