S.L. v. Austria

Application no. 45330/99
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Country: Austria
Region: Europe
Year: 2003
Court: European Court of Human Rights
Health Topics: Child and adolescent health, Sexual and reproductive health
Human Rights: Freedom from discrimination, Right to privacy
Tags: Buggery, Criminalization, Gay, Homosexual, Lesbian, LGBTI, Sexual orientation, Sodomy

SL, an Austrian national, was born in 1981. SL is a homosexual and submits that he lives in a rural area of Austria where homosexuality is still taboo and suffered from the fact that he could not live his homosexuality openly and – until he reached the age of 18 – could not enter into any fulfilling sexual relationship with an adult partner for fear of exposing that person to criminal prosecution under Article 209 of the Criminal Code. Article 209 of the Criminal Code, in the version in force at the material time, stated that a male person who after attaining the age of 19 fornicated with a person of the same sex who had attained the age of 14 years but not the age of 18 years would be sentenced to imprisonment for between six months and five years. Consensual heterosexual or lesbian acts between adults and persons over 14 years of age were not punishable.

On 21 June 2002, upon a request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 Criminal Code was unconstitutional. On 10 July 2002, Parliament decided to repeal Article 209 of the Criminal Code.

On 19 October 1998, SL filed an application with the Commission, complaining that the maintenance in force of Article 209 impinged upon his right to respect for his private life and was discriminatory (as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable), in violation of Article 8 of the ECHR taken alone or in conjunction with Article 14. On 22 November 2001, the application was declared partly admissible.

[Adapted from INTERIGHTS summary, with permission]

The Court held that:

(1) it was not in dispute that the present case fell within the ambit of Article 8;

(2) the fact that Article 209 was repealed on 14 August 2002 did not affect SL’s status as a victim within the meaning of Article 34 of the ECHR as a decision or measure favourable to an applicant was not in principle sufficient to deprive him of his status as a victim unless the national authorities had acknowledged, either expressly or in substance, and then afforded redress for, the breach of the ECHR;

(3) according to established case law, a difference in treatment was discriminatory for the purposes of Article 14 if it, ‘had no objective and reasonable justification’, that is if it did not pursue a ‘legitimate aim’ or if there was not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’;

(4) contracting states enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment;

(5) what is decisive in the present case is whether there was an objective and reasonable justification why young men in the 14–18-year-old age bracket needed protection against any sexual relationship with adult men, while young women in the same age bracket did not need such protection against relations with either adult men or women;

(6) to the extent that Article 209 embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes could not of themselves be considered to amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour;

(7) therefore, Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for privacy and family life) was violated;

(8) there is no need to rule on the complaints lodged under Article 8 alone.

[Adapted from INTERIGHTS summary, with permission]

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