Court/Judicial body: European Court of Human Rights
Date: 9 April 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and family life European Convention on Human Rights, Article 14: non-discrimination Austrian Penal Code, Article 209 (repealed in 2002)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 applicant challenged the compatibility of Article 209 of the Austrian Penal Code with the European Convention on Human Rights (ECHR). The provision 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 applicant claimed that as an adolescent living in a rural area where homosexuality was considered taboo, he suffered from the fact that he could not enter into sexual relationships with an adult partner for fear of exposing that person to prosecution under Article 209. The applicant argued that this provision violated his right to respect for his private life under Article 8 ECHR and was discriminatory contrary to Article 14 ECHR, as consensual sexual acts between two women or a man and a woman under the same circumstances were not criminalised.
Issue and resolution: Discrimination on the ground of sexual orientation. The Court held that Article 209 violated Article 14 of the Convention taken in conjunction with Article 8 where the Government did not offer convincing and weighty reasons to justify the criminalisation of homosexual acts of adult men with consenting adolescents between 14 and 18 years of age.
Court reasoning: The Court found that the vast majority of experts heard in Austrian Parliament were in favor of an equal age of consent for men and women, testifying that sexual orientation was in most cases established before the age of puberty and that the theory that male adolescents were “recruited” into homosexuality had thus been disproven. The Court analogised a predisposed bias on the part of a heterosexual majority against a homosexual minority to negative attitudes towards those of a different race, origin or colour, none of which could be considered sufficient justification for differential treatment under the law. The Court also noted that there was an ever growing European consensus to apply equal ages of consent for heterosexual, lesbian and homosexual relations. Therefore, it concluded that the State had breached the applicant’s right to non-discrimination under Article 14 in conjunction with Article 8 ECHR, but it did not rule whether there had been a violation of the right to private life under Article 8 alone. 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 L. and V. v. Austria, decided at the same time as the current case, which finds that convictions under Article 209 violate Articles 8 and 14 of the Convention 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=001-60877