In 1977, David Norris, an Irish citizen and gay rights campaigner, initiated proceedings in the High Court to challenge the existence of Sections 61 and 62 of the Offences against the Person Act 1861 and the Section 11 of the Criminal Law Amendment Act 1885, which made certain same-sex practices between consenting adult men in private criminal offences. Norris claimed that the impugned laws were no longer in force by reason of Article 50 of the Constitution of Ireland, which declared that laws passed before the Constitution but which were inconsistent with it did not continue to be in force. Whilst the applicant had never been questioned nor prosecuted under these provisions, he attested that he suffered deep depression, loneliness and ill-health as a result of criminalisation.
The High Court dismissed Norris’ challenge and the Irish Supreme court upheld this decision. Norris applied to the European Commission of Human Rights in 1983 and the case was referred by the Commission to the European Court of Human Rights in 1987.
Considering whether the applicant was entitled to claim to be a victim under Article 25 of the European Convention on Human Rights, the Court held that ‘Article 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.’ The Court found the applicant to be in this position and drew on the case of Dudgeon v United Kingdom stating, ‘Mr Norris is in substantially the same position as the applicant in the Dudgeon case’ which held ‘either [he] respects the law and refrains from engaging- even in private and with consenting male partners – in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.’
The applicant argued that the criminalising laws caused an unjustified interference with his right to respect for his private life under Article 8 of the Convention. Again citing the Dudgeon case, the Court held that ‘the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for private life.’ Addressing the existence of a justification for interference, the Court found that ‘it cannot be maintained that there is a “pressing social need” to make such acts criminal offences’ and therefore the reasons put forward to justify the interference were not satisfactory.
The Court held that the applicant could claim to be a victim within the meaning of Article 25 of the Convention. It also held that there was a breach of Article 8 of the Convention.
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