CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 25186/94                       by Euan SUTHERLAND                       against the United Kingdom        The European Commission of Human Rights sitting in private on 21 May 1996, the following members being present:              MM.    S. TRECHSEL, President                  C.L. ROZAKIS                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  J.-C. GEUS                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  K. HERNDL                  E. BIELIUNAS              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 8 June 1994 by Euan SUTHERLAND against the United Kingdom and registered on 19 September 1994 under file No. 25186/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 5 May      1995 and the observations in reply submitted by the applicant on      24 August 1995;   -     the parties' submissions at the hearing on 21 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a United Kingdom citizen born in 1977.   He lives in London and is represented before the Commission by Mr. S. Grosz, solicitor with Messrs. Bindmans, London, together with Ms. Angela Mason, of Stonewall, a non-governmental organisation which works for lesbian and gay equality, and Mr. Peter Duffy, a barrister in London. The facts of the application, as submitted by the parties, may be summarised as follows.        The particular circumstances of the case        The applicant became aware of attraction to other boys at about the age of 12.   As his contemporaries became more interested in girls, he became more aware that he was sexually attracted to boys.   From around that time, he felt sure that his sexual orientation was homosexual.   He tried going out with a girl when he was 14.   They are still friends, but there was no sexual attraction with her, and the experience confirmed for the applicant that he could only find a fulfilling relationship with another man.        The applicant had his first homosexual encounter when he was 16, with another person of his own age who was also homosexual.   They had sexual relations, but both worried about the law.        The Relevant domestic law        Section 12 (1) of the Sexual Offences Act 1956 ("the 1956 Act") makes it an offence to commit buggery with another person.   Consent is not a defence.   Section 13 of the 1956 Act makes it an offence for a man to commit an act of "gross indecency" with another man.   Section 1 of the Sexual Offences Act 1967 ("the 1967 Act") provided that buggery and acts of gross indecency in private between consenting males aged twenty-one or over shall not be criminal offences.        The consent of the Director of Public Prosecutions was required for criminal proceedings in relation to homosexual acts "where either of those men was at the time of its commission under the age of 21" (Section 8 of the 1967 Act).   In 1990 455 prosecutions gave rise to 342 convictions.   In 1991 213 prosecutions gave rise to 169 convictions. The consent of the DPP is now required for prosecutions of males aged 16 and 17.        The Policy Advisory Committee on Sexual Offences, reporting to the Home Secretary in 1981, recommended that the minimum age for homosexual relations between men should be reduced to 18.   The Committee accepted that the sexual pattern of the overwhelming majority of young men is fixed by the age of 18, and that whilst young men of between 16 and 18 could still benefit from the protection of the criminal law, by the age of 18 the overwhelming majority of young men are mature enough to assume the responsibility of deciding their reaction to homosexual advances.   A minority of the Committee considered that the minimum age should be reduced to 16.        The Criminal Justice and Public Order Act 1994 replaced the word "twenty-one" in Section 1 of the Sexual Offences Act 1967 with the word "eighteen".   The Act entered into force on 3 November 1994.   COMPLAINTS        The applicant alleges violation of Articles 8 and 14 of the Convention.        He considers that although the minimum age for lawful homosexual acts has been reduced from 21 to 18, the requirements of the Convention are still not complied with.   He points out that he, as a homosexual male, has the only sexual orientation under which he is precluded from any lawful possibility of expressing an important and intimate aspect of his personality.   He remains at risk of prosecution if he has a relationship with a man only a little younger than he is.        He underlines that the unequal age of consent is enforced by imposing criminal liability and sanctions on those under that unequal age of consent, whilst in other countries only an older person who has relations with the person under the age of consent will be criminalised.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 8 June 1994 and registered on 19 September 1994        On 10 January 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 5 May 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 24 August 1995, also after an extension of the time-limit.        On 27 November 1995 the Commission decided to hold an oral hearing on the admissibility and merits of the application.        On 19 April 1996 the Commission granted the applicant legal aid.        At the hearing which was held on 21 May 1996, the parties were represented as follows:        The Government :        Ms. Susan J. DICKSON, Agent of the Government      Mr. David PANNICK QC, Counsel      Mr. Steven BRAMLEY, Home Office, Adviser      Mr. Chris HUDSON, Home Office, Adviser        The applicant :        Mr. Peter DUFFY, Counsel      Ms. Clare MONTGOMERY QC, Counsel      Mr. Stephen GROSZ, Solicitor      Ms. Angela MASON, Executive Director, STONEWALL      Mr. Matthew HEIM, Pupil barrister      Mr. Euan SUTHERLAND, Applicant      Mr. Norman SUTHERLAND, Applicant's father   THE LAW        The applicant alleges violation of Articles 8 and 14 (Art. 8, 14) of the Convention, which provide in their relevant parts as follows.        Article 8 (Art. 8)        "1.    Everyone has the right to respect for his private ... life      ...        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society ... for the      prevention of disorder or crime, for the protection of health or      morals, or for the protection of the rights and freedoms of      others."        Article 14 (Art. 14)        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex ... or other status."        The Government recall the well-established case law to the effect that contracting states are entitled to prohibit consensual homosexual acts involving young persons in order to protect the rights of others and to protect morals, in particular to protect young men from conduct by which they will set themselves apart form the rest of society and which they may well regret when they reach greater maturity.   They refer to the margin of appreciation allowed to states in determining the appropriate age for this purpose, and consider that the Commission should not depart from its existing case-law.   Given the entitlement to prohibit consensual homosexual acts involving young persons, the Government consider that they are also entitled to take the view that such aims justify special measures in relation to homosexuals by comparison with young heterosexuals, and that such aims justify the possible application of criminal law against the young person, and not merely against an older partner.        The applicant considers that the margin of appreciation is particularly narrow in cases involving an obligation to refrain from interference rather than the imposition of positive obligations on the state, and contends that no justification at all has been advanced for the different treatment of gays and lesbians, and that the justifications tendered for the difference between gays and heterosexuals are inadequate and fall outside the margin of appreciation.   In particular, he considers that most of them amount to a bald assertion based on the fact that the current age limit results from a vote of both Houses of Parliament.   He also points out that the evidence on which the Wolfenden Report (1957), the Policy Advisory Committee on Sexual Offences (1981) and the Criminal Law Revision Committee (1984) based themselves is no longer reliable and have been superseded by modern professional opinion and the particular issues raised by the need to prevent HIV infection.   As an example, the British Medical Association, to whose views the Policy Advisory Committee paid particular attention, now advocates an equal age of consent of 16.        The Commission finds, in the light of the parties' submissions, that the application raises serious and complex issues of fact and law which require determination on the merits.   It follows that the application cannot be dismissed as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.   Secretary to the Commission        President of the Commission        (H.C. KRÜGER)                         (S. TRECHSEL)