Court/Judicial body: European Court of Human Rights
Citation: 39392/98 & 39829/98
Date: 9 January 2003
Instrument(s) cited: European Convention on Human Rights, Article 8: right to private and family life European Convention on Human Rights, Article 14: non-discrimination Austrian Penal Code, Article 209 (repealed in 2002)
Background: The two petitioners were convicted under Article 209 of the Austrian Penal Code, which has since been repealed. Article 209 criminalised consensual sexual activity between men where one party was an adult aged 19 and over and the other party was between 14 and 18 years of age. The petitioners challenged their convictions on the basis that the Austrian Penal Code did not criminalise sexual activity between man and a woman or two women in the same way. The argued this amounted to discrimination contrary to the European Convention on Human Rights (ECHR).
Issue and resolution: Discrimination on the basis of sexual orientation. The Court unanimously held that the Austrian Penal Code unjustifiably discriminated against homosexual men and awarded compensation to the petitioners.
Court reasoning: The Court observed that Article 209 had historically been upheld on the theory that young men were at risk of being recruited into homosexuality during adolescence: this threat was not believed to exist in relation to lesbian or heterosexual sex. This view has been outdated by experts’ modern understanding of adolescent development and human sexuality. Therefore, the Court decided that the provision had no objective and reasonable justification. Accordingly, Article 209 violated the right to non-discrimination in Article 14 in conjunction with the right to respect for private life in Article 8 of the ECHR. Impact: Article 209 of the Penal Code has since been repealed by the Austrian Parliament. Other statutes are in place which prohibit sexual acts between adults and adolescents in various situations not applicable to this case, but these statutes apply equally to sexual acts between adults and adolescents, regardless of gender or sexual orientation.
Notes: See the related case of S.L. v. Austria, decided at the same time as the current case, which also finds a violation of Articles 8 and 14 of the Convention in relation to Article 209 of the Penal Code and the case of E.B. and others v. Austria, decided in 2013, which finds that a refusal to delete criminal records of convictions under Article 209 amount to a violation of Articles 8 and 14 and 13 of the Convention.
Link to full judgement: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60876