Date: 16 May 1994 09:25:36 U From: "Larry Helfer" Romania - Article 200 Brief The International Human Rights Law Group (the Law Group) recently filed an amicus curiae memorandum with the Romanian Constitutional Court in support of a challenge to Article 200 of the Romanian Criminal Code. Article 200 is one of the last remaining statutes in Europe that imposes severe criminal sanctions for engaging in private, consensual homosexual conduct. The Law Group has urged the court to interpret the Romanian Constitution in harmony with European and international human rights precedents, and to invalidate the law as a violation of the fundamental privacy rights of lesbians and gay men. The court is expected to issue its decision later this year. At the same time, the Romanian Chamber of Deputies is considering revisions to the entire Criminal Code. Unfortunately, the proposed changes to Article 200 impose more severe sanctions than the current version of the statute and prescribe longer prison terms for homosexual conduct than are imposed for crimes involving analogous forms of heterosexual conduct. The Law Group is lobbying the Juridical Committee of the Chamber of Deputies to eliminate Article 200 from the Criminal Code in its entirety. The memorandum represents one of the first attempts to use international human rights standards to influence a domestic court on issues of concern to lesbians and gay men. I thought members of the Queer Planet network would be interested in the arguments Ali Miller and I made in the brief. Any comments or questions should be routed to me at larry_helfer@law.uchica o.edu. We hope to post the brief to an internet bulletin board in the near future. The message will be distributed in two postings because of its length. SUMMARY OF THE ARGUMENT The International Human Rights Law Group files this legal memorandum in support of the constitutional challenge brought by Mr. Ovidiu Bozdog to Article 200 of the Romanian Criminal Code, which imposes a maximum five-year prison sentence for engaging in private, consensual homosexual conduct. Romania is the only nation among the thirty-two member States of the Council of Europe to impose criminal penalties on adults who engage in such conduct. The European Court of Human Rights has stated in no less than three separate judgments that such laws are a clear violation of the right to respect for private life enshrined in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), Nov. 4, 1950, 213 U.N.T.S. 222. The European Court has also suggested that States Parties are prohibited from imposing a higher age of consent for homosexual conduct as compared to heterosexual conduct, a restriction currently contained in Article 200, #166# 2. Although the Senate has passed and the Chamber of Deputies is currently debating several amendments to Article 200, these modifications contain clear violations of the right to respect for private life, the right to freedom of expression and association, and the right to non-discrimination protected by the European Convention. The International Human Rights Law Group urges this Court to interpret the Romanian Constitution in harmony with the European Convention, international human rights law, and the progressive penal policies of the member States of the Council of Europe. Accordingly, it asks this Court to strike down Article 200 as a violation of the fundamental human rights of homosexuals guaranteed by both Romanian law and European and international human rights law. By issuing such a judgment, this Court will take a crucial first step in bringing the Romanian Criminal Code in line with legal principles respected by all European democracies and will demonstrate Romania's commitment to respecting human rights and civil liberties. ARGUMENT I. ARTICLE 26 OF THE ROMANIAN CONSTITUTION, AS INFORMED BY EUROPEAN AND INTERNATIONAL HUMAN RIGHTS STANDARDS, PROHIBITS THE GOVERNMENT FROM PROSECUTING MR. BOZDOG FOR ENGAGING IN PRIVATE HOMOSEXUAL CONDUCT WITH ANOTHER CONSENTING ADULT. A. In three cases, the European Court of Human Rights has interpreted Article 8 of the European Convention on Human Rights to prohibit States Parties from criminalizing private homosexual conduct between consenting adults. The European Court of Human Rights has unequivocally demonstrated its commitment to protecting consensual adult homosexual relationships from the criminal sanctions of European governments. In no less than three separate judgments, the Court has proclaimed that the European Convention on Human Rights prohibits States Parties from imposing criminal penalties on adults who privately engage in consensual homosexual conduct. In each case, the Court examined the compatibility of the criminal statutes with the human rights principles protected by the Convention and concluded that a complete ban on consensual homosexual conduct violates the principle that "[e]veryone has the right to respect for his private . . . life." Convention, art. 8, #166# 1. Equally as important, the European Court has squarely rejected any attempt by domestic courts to shield these laws from international scrutiny by finding them compatible with national constitutions. 1. Dudgeon v. United Kingdom In Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), Mr. Jeffrey Dudgeon, a homosexual resident of Belfast who had been detained and questioned by the police about his sexual life, filed a complaint with the European Commission of Human Rights challenging several statutes in Northern Ireland that criminalized homosexual conduct. Id. at 8, 15. The Commission agreed with Mr. Dudgeon that the laws, which provided for a maximum sentence of life imprisonment, violated the right to respect for private life protected by Article 8 of the European Convention. See Dudgeon v. United Kingdom, 3 E.H.R.R. 40, 59 (1981). The United Kingdom appealed the Commission's decision to the European Court of Human Rights for a final ruling. As an initial matter, the Court had little difficulty concluding that the statutes constituted a "continuing interference" with Mr. Dudgeon's "right to respect for his private life (which includes his sexual life)." Dudgeon, 45 Eur. Ct. H.R. at 18. The Court accepted Mr. Dudgeon's allegations concerning the profound fear and distress he suffered as a result of the legislation, noting that the very existence of this legislation continuously and directly affects his private life: either he respects the law and refrains from engaging -- even in private 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. Id. (emphasis added). Even the Government of the United Kingdom did not dispute that Mr. Dudgeon was "directly affected by the laws and entitled to claim to be a 'victim' thereof under Article 25 of the Convention." Id. The Court next considered the more complex question whether the statutes could be justified on any of the grounds set forth in the second paragraph of Article 8. Applying its settled case law, the Court explained that to be compatible with the Convention, any interference with the right of privacy had to (1) be "in accordance with the law," (2) have a legitimate aim, and (3) be "necessary in a democratic society" to achieve that aim. Id. at 19. Accepting that the statutes satisfied the first criterion and were legitimately designed to protect morals and the rights and freedoms of others, the Court considered what it termed the "cardinal issue arising under Article 8" -- whether the statutes could be justified as necessary in a democratic society to protect the moral fabric of Northern Irish society. Id. at 19-20. Although the Court accepted the government's argument that some degree of regulation of all forms of sexual conduct was acceptable, it reasoned that because the statutes affected "a most intimate aspect of private life . . . , there must exist particularly serious reasons before interferences on the part of the public authorities" can be compatible with the Convention. Id. at 20-21. It also stressed the government's burden to demonstrate a "pressing social need" for the legislation and to respect the two hallmarks of a democratic society -- tolerance and broadmindedness. Id. at 21-22. Significantly, however, the Court did not cavalierly dismiss the United Kingdom's interest in protecting morals. The Court accepted the existence of "a strong body of opposition stemming from a genuine and sincere conviction shared by a large number of responsible members of the Northern Irish community that a change in the law would be seriously damaging to the moral fabric of society," and it acknowledged that the government could consider these conservative attitudes in determining whether to reform the law. Id. at 22. But these conservative views, although relevant, did not provide a sufficient basis for the national authorities to infringe upon "an essentially private manifestation of the human personality." Id. at 23. Crucial to this determination was the existence of liberalized attitudes towards homosexuality throughout Europe. As the Court explained: As compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behavior to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member States. Id. at 23-24 (emphasis added). In light of the widespread acceptance of homosexual conduct among European States, the Court concluded that any justification for retaining the law was outweighed by the detrimental effects which the legislation had on Mr. Dudgeon's life and the lives of other homosexuals. "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." Id. at 24 (emphasis added). Thus, the Court concluded that a ban on adult homosexual relationships violated the Convention's right to respect for private life. 2. Norris v. Ireland Seven years later, the European Court reaffirmed its ruling in the Dudgeon case. In Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) (1988), the Court considered a claim by Mr. David Norris, a homosexual member of the Irish Senate who argued that Ireland's statutes prohibiting consensual homosexual conduct violated Article 8. Mr. Norris had previously challenged the statutes before the Supreme Court of Ireland, which, in a 3-2 decision, rejected his claim that the laws violated the Irish Constitution. The Supreme Court reasoned that no right of privacy encompassing homosexual conduct could be derived from the "Christian and democratic nature of the Irish State." Norris v. Attorney General, [1984] I.R. 36. The European Court, however, viewed Mr. Norris' claim as "indistinguishable" from Mr. Dudgeon's, 142 Eur. Ct. H.R. at 17, 18, and rejected Ireland's argument that "[w]ithin broad parameters the moral fibre of a democratic nation is a matter [exclusively] for its own institutions." Id. at 20-21. Although acknowledging that national authorities do enjoy a wide margin of discretion in matters of morals, the Court concluded that this discretion is not unfettered and cannot condone restrictions incompatible with principles that normally prevail in all democratic societies. See id. at 21-22. Thus, it concluded that the statutes violated Article 8 of the Convention. Id. at 20-21. 3. Modinos v. Cyprus Most recently, in Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993), the European Court for a third time reaffirmed its unwavering adherence to the principle that criminal prohibitions of same-sex consensual conduct violate the Convention. Significantly, the Cypriot Government did not attempt to persuade the Court that sections 171 to 173 of the Cypriot Criminal Code could be justified under the Convention. Instead, it argued that the Cypriot Constitution already prohibited the Attorney General from bringing a criminal prosecution against consenting adult males who engaged in private homosexual relations. Id. at #166##166# 17, 25. By an eight-to-one vote, the Court rejected even this argument. The European Court's analysis of Cypriot law in Modinos is relevant to this Court's analysis of Article 200 of the Romanian Criminal Code in several key respects. First, sections 171 to 173 of the Cypriot Criminal Code contain a categorization of offenses and penalties remarkably similar to those of Article 200. Second, Article 15 of the Cypriot Constitution protects each person's right to respect for private life, but allows for many of the limitations set forth in Article 8, #166# 2 of the Convention, including the protection of "public morals." This is the same structure that appears in Article 26 of the Romanian Constitution. Third, Article 169 of the Cypriot Constitution provides that international treaties and conventions have "superior force to any municipal law." Similarly, Articles 11 and 20 of the Romanian Constitution state that international human rights treaties take precedence over any conflicting provisions of Romanian constitutional or domestic law. Finally, and perhaps most significantly, this Court should heed the European Court's warning in Modinos that no domestic court can interpret its national constitution in a way that conflicts with the European Convention on Human Rights. Ten years prior to the European Court's judgment in Modinos, the Supreme Court of Cyprus rejected a constitutional challenge to Section 171 of the Cypriot Criminal Code. See Coasta v. The Republic, 2 Cyprus Law Reports 120 (1982). Although the Supreme Court was aware of the European Court's judgment in the Dudgeon case, it nevertheless refused to follow the European Court's reasoning. The Supreme Court stressed that it was entitled to apply the Convention and interpret the corresponding provisions of the Constitution in the light of its assessment of the present social and moral standards in this country; therefore, in the light of the aforesaid principles and viewing the Cypriot realities, this Court is not prepared to come to the conclusion that section 171(b) of our Criminal Code, as it stands, violates either Convention or the Constitution, and that it is unnecessary for the protection of morals in our country. Coasta v. The Republic, quoted in Modinos, 259 Eur. Ct. H.R. at #166# 11. In Modinos, the European Court rejected this attempt by the Supreme Court of Cyprus to shield domestic laws from international scrutiny. The European Court emphasized that it could not "fail to take into account such a statement from the highest court of the land on matters so pertinent to the issue before it." Id. at #166# 22. Thus, even the Attorney General's "consistent policy of not bringing criminal proceedings in respect of private homosexual conduct on the basis that the relevant law is a dead letter," id. at #166# 23, could not persuade the Court to depart from its analysis in Dudgeon and Norris. 4. The impact of the European Court's rulings. The impact of the European Court's reasoning in these cases is unambiguous. States Parties that retain any criminal sanctions against private homosexual conduct between consenting adults are per se in violation of the Convention, no matter what penalty they impose and even if they never enforce the statutes. Moreover, any attempt by a domestic court to uphold these laws under a national constitution will in no way save them from conflict with the Convention. Therefore, if a domestic court wishes to avoid the international scrutiny and embarrassment of a European Court judgment that effectively overrules its own analysis of national laws, such a court must interpret the constitutional right of privacy in harmony with Article 8 of the Convention. Any other result is simply unacceptable in the democratic societies comprising the member States of the Council of Europe. B. The Romanian Constitution must be construed in harmony with European and international human rights law precedents. The Romanian Constitution states in Article 20, #166# 1 that "[c]onstitutional provisions concerning the citizen's rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, [and] with the covenants and other treaties Romania is a party to." In the case of any inconsistencies between these "treaties on fundamental human rights" and Romanian municipal law, "the international regulations shall take precedence." Id. art. 20, #166# 2. Although Romania has not yet acceded to the European Convention on Human Rights, it signed the Convention in November 1993 and has committed to ratify it in the very near future. On the Application by Romania for Membership of the Council of Europe, Op. No. 176, Eur. Parl. Ass., 44th Sess. #166# 4 (1993). Once Romania ratifies the Convention, it will be legally bound to comply with every provision of the treaty, including the European Court's rulings in Modinos, Norris, and Dudgeon. In October 1993, Romania was admitted to the Council of Europe, membership in which is a condition precedent to ratifying the Convention. At that time, the Council's Parliamentary Assembly indicated that "Romania will shortly change its legislation in such a way that . . . Article 200 of the Penal Code will no longer consider as a criminal offence homosexual acts in private between consenting adults. Id. #166# 7 (emphasis added). This liberalizing of Romania's Criminal Code is supported by widely respected non-governmental organizations including the International Human Rights Law Group and Amnesty International. See Most Favored Nation (MFN) Trade Status for Romania: The Current Human Rights Situation, Aug. 1993, at 2, 15-16 (criticizing proposed amendments to Article 200 as a violation of international human rights law); Romania: Criminal Law Reform on the Wrong Track, AI Index: EUR 39/01/94, at 4-6 (Mar. 1994) (same). The trend in favor of acceptance and tolerance continues unabated. Today Romania stands alone among the member States of the Council of Europe in its enforcement of repressive criminal sanctions against male homosexuals. In fact, Romania's Article 200 is that much more out of step with European legal standards in that it criminalizes same-sex conduct between two women as well as between two men. The European Court has made it abundantly clear that every European democracy, regardless of its religious, moral, or cultural characteristics, must respect the fundamental right of privacy and extend that right to homosexual relationships between consenting adults. Romania must now conform its conduct to these established principles of European human rights law and, indeed, of international human rights law generally. Two universal human rights instruments contain articles on the right to respect for private life: Article 12 of the Universal Declaration of Human Rights, G.A. Res. 217 (III 1948), and Article 17 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. Both articles provide that "[n]o one shall be subjected to arbitrary interference with his privacy" and grant to each individual "the right to the protection of the law against such interference . . . ." Romania ratified the Covenant on March 23, 1976. Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 888 (1993). The United Nations Human Rights Committee, the body of experts that considers complaints filed by individuals under the First Optional Protocol to the Covenant on Civil and Political Rights, recently decided that the right of privacy extends to homosexual relationships between consenting adults. In Toonen v. Australia, the Committee held that statutes criminalizing same-sex relations in the island state of Tasmania violate Australia's obligations under Article 17 of the Covenant. See Michael Perry, Tasmanian Anti-Gay Laws Said to Breach Rights, Reuters World Serv., Apr. 11, 1994. The Committee's unanimous ruling adds additional force to the claim that criminalizing homosexual conduct violates fundamental principles of international human rights law. Tasmanian Gay & Lesbian Rights Group, Unanimous U.N. Decision Favours Gay Rights, Apr. 11, 1994. This Court, having agreed to hear Mr. Bozdog's appeal, has an unparalleled opportunity to demonstrate Romania's respect for these fundamental principles. By interpreting the Romanian Constitution in harmony with European and international precedents, this Court will give Article 26 an interpretation worthy of its progressive and far-reaching language. It will also demonstrate its commitment to all Romanian citizens that public authorities must respect one of the most intimate and private aspects of the human personality. II. ARTICLES 16 AND 26 OF THE ROMANIAN CONSTITUTION, AS INFORMED BY EUROPEAN AND INTERNATIONAL HUMAN RIGHTS STANDARDS, PROHIBIT THE GOVERNMENT FROM PROSECUTING MR. BOZDOG FOR ENGAGING IN PRIVATE HOMOSEXUAL CONDUCT WITH ANOTHER MALE AGE 14 OR OLDER A. Properly interpreted, Articles 8 and 14 of the European Convention prohibit States Parties from imposing a higher age of consent for homosexual relationships as compared to heterosexual relationships. In the Dudgeon case, both the European Commission of Human Rights and the European Court of Human Rights considered Mr. Dudgeon's claim that a 21-year age of consent for male homosexuals, as compared to a 17-year age of consent for lesbians and heterosexuals, violated Articles 8 and 14 of the European Convention. Whereas the Commission concluded that such an age disparity was compatible with the Convention, the European Court refused to reach this question, reasoning that "it falls in the first instance to the national authorities . . . to fix the age under which young people should have the protection of the criminal law." Dudgeon, 45 Eur. Ct. H.R. at 26. Because the law in Northern Ireland did not contain an age of consent for homosexuals, the Court concluded that it could not "pronounce upon an issue which does not arise at the present moment." Id. However, it was careful to stress than "once this age has been fixed . . . an issue under Article 14 might arise." Id. In light of this reasoning, the European Court did not consider the age of consent issue in Norris or Modinos, where only the absolute prohibition of same-sex consensual conduct was at issue. In two post-Dudgeon decisions, however, the European Commission concluded that a higher age of consent did not violate the Convention. See Zukrigl v. Austria, App. No. 17279/90 (unpublished admissibility decision issued May 13, 1992); Desmond v. United Kingdom, App. No. 97721/82 (unpublished admissibility decision issued May 7, 1984). But see Wilde v. United Kingdom, App. No. 22382/93 (government must address whether higher homosexual age of consent is compatible Convention in light of fundamental changes in legal and social attitudes in Europe since 1980). Although the Commission has thus far been unwilling to substitute its own judgment for that of the national authorities, other legal, social and scientific institutions in Europe have not been nearly so reticent. In fact, since the Dudgeon decision in 1981, there has been a significant movement among the member States of the Council of Europe to equalize the age of consent for heterosexuals and homosexuals -- a movement that has been supported by international legislation in the Parliamentary Assembly, the European Parliament of the EC, and by the concurring opinions of European criminological and sociological experts. For example, in 1981, the Parliamentary Assembly urged the member States to impose a uniform age of consent for all sexual orientations. See Recommendation 924, Eur. Parl. Ass., 33d Sess. #166# 7 (1981). The European Parliament issued a similar recommendation requesting EC member States to adopt the same minimum age of consent for homosexuals and heterosexuals. See Statutory and Other Discrimination Against Homosexuals, 1983-1984 Eur. Parl. Doc. (No. 1358/83) (1984). These recommendations are supported by two reports published by the Legal Affairs Committee of the Council of Europe which documented the tremendously harmful emotional and psychological effects of a higher age of consent on homosexual teenagers and their partners and urged all European nations to introduce a uniform age of consent. See Sexual Behavior and Attitudes and the Implications for Criminal Law, in 21 Collected Studies in Criminological Research 127-203 (1984). Legal scholars have also observed that a more principled interpretation of the Convention requires States Parties to impose the same age of consent for all of their citizens. See, e.g., Pieter van Dijk, The Treatment of Homosexuals Under the ECHR, in Homosexuality: A European Community Issue 179, 188-89 (Kees Waaldijk & Andrew Clapham eds. 1993); Laurence R. Helfer, Finding a Consensus on Equality: The Homosexual Age of Consent and the European Convention on Human Rights, 65 N.Y.U. L. Rev. 1044 (1990). These legal and social developments have not fallen on deaf ears. In the last decade, Belgium, Estonia, France, Germany, Greece, Iceland, Ireland, Latvia, Luxembourg, and Switzerland amended their penal codes to introduce a uniform age of consent for individuals of all sexual orientations. See Country-by-Country Survey, in The Third Pink Book: A Global View of Lesbian and Gay Liberation and Oppression 247-342 (Aart Hendriks, Rob Tielman, & Evert van der Veen eds. 1993); Germany's Anti-Gay Law Deleted From Constitution, Outlines, Apr. 1994, at 8. Today, only six of the 32 member States of the Council of Europe -- Austria, Liechtenstein, Lithuania, Finland, Hungary, and the United Kingdom -- still maintain a higher age of consent for homosexuals. The European Commission has now noticed this growing European consensus in favor of equality and has decided to scrutinize more closely the laws of States Parties that discriminate against homosexuals. In the recently filed case of Wilde v. United Kingdom, App. No. 22382/93, the Commission requested the British government in a letter dated Jan. 18, 1994 to address whether the difference in the ages of consent for private homosexual and heterosexual relationships is still compatible with Articles 8 and 14. The Commission made particular reference to the fundamental changes in legal and social attitudes in Europe since 1980. Once the Commission receives the government's response, it is expected to determine whether the case is admissible for consideration on the merits. B. This Court should interpret Articles 16 and 26 of the Romanian Constitution in harmony with recent European legal developments and apply the same 14-year age of consent to heterosexual and homosexual relationships. Article 16 of the Romanian Constitution states that "[c]itizens are equal before the law and public authorities, without any privilege or discrimination." Construing Article 26's guarantee of respect for intimate and private life in conjunction with Article 16's guarantee of equality, this Court should apply the same minimum age of consent to heterosexuals and homosexuals. Because Article 198 of the Criminal Code imposes a 14-year age of consent for private heterosexual conduct, this Court should apply a 14-year age limit to private homosexual conduct. The Constitutional Court must address the age of consent issue in this case because Mr. Bozdog has been charged with violating Article 200, #166# 2, which imposes a maximum prison sentence of seven years for engaging in homosexual conduct with a minor under 18. If this Court decides that the government may not continue its criminal prosecution against Mr. Bozdog for engaging in a consensual relationship with another adult male, it must then consider whether the government may prosecute Mr. Bozdog for these additional violations of Article 200. The International Human Rights Law Group urges this Court to prohibit these prosecutions to the extent they involve sexual conduct with a male 14 years of age or older. Significantly, the Constitutional Court is not constrained by the European Commission's practice of granting States Parties a margin of discretion for their actions. Rather, it has the authority to decide for itself the most effective way to construe the guarantees provided by the newly-adopted Romanian Constitution. The Court should therefore interpret the Constitution in light of the overwhelming legal, scientific, and sociological evidence demonstrating the inappropriateness of a maintaining a higher age of consent for homosexuals. By imposing the same minimum age of consent for all Romanian citizens, this Court will indicate its willingness to consider the experiences of other democracies in fashioning national penal policies, a practice that other European States consider crucial to maintaining the complex web of interlocking economic, political, and social connections that binds the region together. III. THE PROPOSED REVISIONS TO ARTICLE 200 OF THE CRIMINAL CODE CONTAIN NUMEROUS VIOLATIONS OF THE ROMANIAN CONSTITUTION AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS Revisions of the entire Romanian Criminal Code, including Article 200, have been passed by the Senate and are now being considered by the Juridical Committee of the Chamber of Deputies. These amendments do not remedy the violations of the Romanian Constitution and the European Convention contained in the current version of Article 200. In fact, several provisions of the proposed statute violate not only the right to respect for private life and the right to non-discrimination, but also the right to freedom of expression and association. Although Mr. Bozdog has not been charged under these amendments, the Constitutional Court should take the opportunity presented by his appeal to caution the Romanian legislature that the proposed modifications to Article 200 are incompatible with the rights and freedoms protected by the Romanian Constitution, as informed by the protections contained in the European Convention and universal human rights treaties. A. Article 200, #166# 1 violates the right to respect for private life. The proposed Article 200, #166# 1 would impose a maximum five-year sentence for engaging in private, consensual homosexual conduct "causing a public scandal." Significantly, the statute does not define those situations in which purely private sexual acts have a sufficiently public manifestation to cause a scandal. The statute could easily be used to punish private homosexual conduct whenever a member of the public is shocked or offended by such behavior, a result expressly rejected by the European Court in Dudgeon. As Amnesty International explained in its recent report on Article 200, the public scandal standard "is very broad and could lead to varying and contradictory judicial interpretation . . . [that would] allow the prosecution in Romania of adults solely because of consensual homosexual acts in private . . . ." Romania: Criminal Law Reform on the Wrong Track, AI Index: EUR 39/01/94, at 4 (Mar. 1994). Such a result is a clear violation of a the right to respect for private life guaranteed by Article 8 of the European Convention. B. Article 200, #166##166# 2, 3, and 4 violate the right to respect for private life and the right to non-discrimination. As proposed, Article 200, #166# 2 would continue to impose criminal penalties for homosexual conduct with a minor under 18. Indeed, the maximum penalty would be increased to 10 years from seven years. Additional increases in maximum sentences have been proposed for other provisions of the statute. Article 200, #166# 3 would increase from 10 years to 12 years the maximum sentence for same-sex relations with an individual "not having the possibility to defend him/herself or to express his/her will, or by means of force." Article 200, #166# 4 would increase from 10 to 15 years the maximum prison term for conduct "result[ing] in serious damage to the person" and from 15 to 20 years the sentence for conduct "result[ing] in the death or suicide of the victim." In each case, punishment would also include the "interdiction of the exercise of certain rights." Id. art. 200, #166##166# 2, 3, 4. Each of these paragraphs prescribes longer prison terms for homosexual conduct than are imposed for crimes involving analogous forms of heterosexual conduct. Thus, the paragraphs contain clear violations of the right to respect for private life and the right to non-discrimination which are protected by Articles 8 and 14 of the European Convention. C. Article 200, #166# 5 violates the right to freedom of expression, association, and assembly, which the European Court protects with special vigilance for disadvantaged minority groups. Arguably the most significant revision appears in the new paragraph five of Article 200, which would impose a maximum five-year sentence for "encouragement or allurement of individuals, with a view to the perpetration of the deeds described in the above paragraphs, as well as propaganda actions, associations, or any other proselytizing activities carried out in view of the same purpose . . . ." This provision is a clear violation of the Articles 10 and 11 of the European Convention, which protect, respectively, the right to freedom of expression, and freedom of association and assembly. 1. The right to freedom of expression. The European Court has stated in numerous cases that the right to freedom of expression is "one of the essential foundations of [a democratic] society, one of the basic conditions of its progress and for the development of every man." Handyside v. United Kingdom, 24 Eur. Ct. H.R. at 22 (ser. A) (1976). The right applies not merely to "'information' or 'ideas' that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'." Mueller v. Switzerland, 133 Eur. Ct. H.R. at 22 (ser. A) (1988) (emphasis added); Handyside, 24 Eur. Ct. H.R. at 23 (same). The European Court has exercised especially stringent review of the actions of national authorities that restrict free expression, making clear that its supervision is not "limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith." The Observer and Guardian v. United Kingdom, 216 Eur. Ct. H.R. at 30 (ser. A) (1991). On the contrary, the Court examines "the interference complained of in light of the case as a whole and determines whether it [i]s proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it are relevant and sufficient." Id. It also "interpret[s] narrowly" the government's justifications for restricting free expression, requiring "the need for them in a given case [to] be convincingly established." Thorgeirson v. Iceland, 239 Eur. Ct. H.R. at 27 (ser. A) (1992). 2. The right to freedom of association and assembly. The Court has demonstrated similar concern for protecting the right to freedom of association and assembly. Compare Ezelin v. France, 202 Eur. Ct. H.R. at 23 (ser. A) (1991) ("the freedom to take part in a peaceful assembly is of such importance that it cannot be restricted in any way . . . so long as the person concerned does not commit any reprehensible act") and Plattform "Artze Fur Das Leben" v. Austria, 139 Eur. Ct. H.R. (ser. A) (1988) (States Parties have an affirmative obligation to protect demonstrators who support unpopular points of view) and Rassemblement Jurassien v. Switzerland, App. No. 8191/78, 17 Eur. Comm'n H.R. Dec. & Rep. 93, 119 (1979) ("[T]he right of peaceful assembly . . . is a fundamental right in a democratic society and, like the right to freedom of expression, one of the foundations of such a society. As such this right covers both private meetings and meetings in public thoroughfares.") with Sigurjonsoon v. Iceland, 264 Eur. Ct. H.R. (ser. A) (1993) (States Parties may not compel individuals to belong to a trade association as a condition of employment); Le Compte, Van Leuven and De Meyere v. Belgium, 43 Eur. Ct. H.R. at 27 (ser. A) (1981) (States Parties "must not prevent [individuals] from forming together or joining professional associations") and X. v. Sweden, App. No. 6094/73, 9 Eur. Comm'n H.R. Dec. & Rep. 5, 7 (1977) ("Freedom of association is a general capacity for the citizens to join without interference by the State in associations in order to attain various ends."). Indeed, the European Commission on Human Rights has strongly suggested that restrictions on the ability of homosexual groups to organize and advocate for social or legal change is incompatible with the Convention. In X v. United Kingdom, App. No. 7525/76, 11 Eur. Comm'n H.R. Dec. & Rep. 117 (1978), the applicant alleged that the common law offense of conspiracy to corrupt public morals and conspiracy to outrage public decency violated Article 11 because it cast doubt on the legality of any homosexual group that provided information to other homosexuals or advocated legal reforms. Id. at 130. Although the Commission concluded that the applicant had not substantiated his claim, it was careful to stress that the laws should not be applied so as to criminalize the "mere existence" of such homosexual advocacy groups. Id. at 131. 3. The protection of disadvantaged minority groups. In its judgments protecting the right to freedom of expression, association, and assembly, the Court has relied on the three hallmarks of European democracies -- pluralism, tolerance and broadmindedness -- to define the human rights obligations of States Parties. These three values underscore the special importance the Court places on protecting rights and freedoms enjoyed by members of disadvantaged or unpopular minority groups. As the Court explained in Young, James and Webster v. United Kingdom, 44 Eur. Ct. H.R. at 25 (ser. A) (1981): "Although individual interests must on occasion be subordinated to those of a group, democracy does not simply means that the views of a majority must always prevail: a balance must be achieved which ensured the fair and proper treatment of minorities and avoids any abuse of a dominant position." That balance includes allowing members of minority groups the freedom to disseminate their views. See generally Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) (1993) (criminal conviction of Jehovah's witness for proselytizing violated the Convention). The language of Article 200, #166# 5 is in direct conflict with the letter and the spirit of numerous rights enshrined in the European Convention. These are the very same rights guaranteed by the Romanian Constitution. See Article 8, #166# 1 ("Pluralism in Romanian society is a condition and safeguard of Constitutional democracy."); Article 30, #166# ("Freedom of expression of thoughts, opinions, or beliefs . . . are inviolable."); Article 37, #166# 1 ("Citizens may freely associate into political parties, trade unions, and other forms of association."). The International Human Rights Law Group asks this Court to construe these constitutional guarantees in harmony with the jurisprudence of the European Court and Commission and to advise Romanian legislators to delete Article 200, #166# 5 in its entirety from the proposed modifications to the Criminal Code. CONCLUSION For all the foregoing reasons, the International Human Rights Law Group urges the Romanian Constitutional Court to declare that both the current version of Article 200 and the proposed revisions to the statute violate numerous rights guaranteed by the Romanian Constitution, as informed by the protections contained in the European Convention on Human Rights and universal human rights treaties.