CEDH · CASELAW;REPORTS;ENG — 1 juillet 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 25186/94                          Euan Sutherland                               against                         the United Kingdom                      REPORT OF THE COMMISSION                      (adopted on 1 July 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-30) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-18). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and background           (paras. 19-30). . . . . . . . . . . . . . . . . . .3     III. OPINION OF THE COMMISSION      (paras. 31-66) . . . . . . . . . . . . . . . . . . . . 10        A.    Complaints declared admissible           (para. 31). . . . . . . . . . . . . . . . . . . . 10        B.    Points at issue           (para. 32). . . . . . . . . . . . . . . . . . . . 10        C.    Articles 8 and 14 of the Convention           (paras. 33-67). . . . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 67). . . . . . . . . . . . . . . . . . . . 17        CONCURRING OPINION OF Mr. I. CABRAL BARRETO JOINED BY      Mr. B. CONFORTI . .. . . . . . . . . . . . . . . . . . 18        DISSENTING OPINION OF MM. K. HERNDL AND I. BÉKÉS . . . 19        DISSENTING OPINION OF Mr. J.-C. SOYER   . . . . . . . . 21        DISSENTING OPINION OF Mr. F. MARTINEZ   . . . . . . . . 22        APPENDIX: DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 23   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a British citizen, born in 1977 and resident in London.   He 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.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Ms. Susan Dickson, of the Foreign and Commonwealth Office, London.   4.    The case concerns the age of consent for homosexual relations in the United Kingdom.   The applicant invokes Articles 8 and 14 of the Convention.   B.    The proceedings   5.    The application was introduced on 8 June 1994 and registered on 19 September 1994.   6.    On 10 January 1995 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 5 May 1995, after an extension of the time-limit fixed for this purpose.   The applicant replied on 24 August 1995, also after an extension of the time-limit. On 19 April 1996 the Commission granted the applicant legal aid for the representation of his case.   8.    On 27 November 1995 the Commission decided to hold a hearing of the parties.   The hearing was held on 21 May 1996.   The Government were represented by Ms. Susan J. Dickson, Agent of the Government, Mr. David Pannick QC, Counsel and MM. Steven Bramley and Chris Hudson, Advisors of Home Office.   The applicant was represented by Mr. Peter Duffy, Counsel, Ms. Clare Montgomery QC, Counsel, Mr. Stephen Grosz, Solicitor, Ms. Angela Mason, Executive Director of Stonewall and Mr. Matthew Heim, Pupil barrister.   The applicant and his father, Mr. Norman Sutherland, were also present.   9.    After the hearing, the Commission declared the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 4 June 1996 and they were invited to submit such further information or observations on the merits as they wished.   The Government submitted certain information on 9 July 1996.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   S. TRECHSEL, President           Mrs. G.H. THUNE           MM.   G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                F. MARTINEZ                C.L. ROZAKIS                J.-C. GEUS                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                A. PERENIC                K. HERNDL                E. BIELIUNAS   13.   The text of this Report was adopted on 1 July 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   17.   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.   18.   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.   B.    Relevant domestic law and background   19.   Section 12(1) of the Sexual Offences Act 1956 ("the 1956 Act") makes it an offence for a person to commit buggery with another person. By Section 13 of the 1956 Act it is an offence for a man to commit an act of "gross indecency" with another man, whether in public or private.   20.   By Section 14(1) of the 1956 Act, it is an offence for a person to commit an indecent assault on a woman.   By Section 14(2) of the 1956 Act, a girl under the age of 16 cannot give any consent which would prevent an act being an assault for the purposes of the section.   21.   By Section 1 of the Sexual Offences Act 1967 it was provided, inter alia:        "(1) Notwithstanding any statutory or common law provision ...      a homosexual act in private shall not be an offence provided that      the parties consent thereto and have attained the age of twenty-      one years.      ...        (7)   For the purposes of this section a man shall be treated as      doing a homosexual act if, and only if, he commits buggery with      another man or commits an act of gross indecency with another man      or is a party to the commission by a man of such an act ..."   22.   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.   23.   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 Committee noted:        "38. Most people feel that the natural and proper expression of      human sexuality is to be found in heterosexual relationships ...      and that to introduce a boy to homosexual practices could, in      some   cases, deprive   him of this.   The majority of parents would      surely wish their children to grow up with the desire and      possibility of marriage and children and anything which puts this      expectation at risk would be deplored.        39.   ... with more general understanding of the very delicate      balance of sexuality in all of us, with a greater willingness to      discuss the subject in public and private, we believe that      society's attitude to homosexuality has become less hostile and      that a recommendation for reduction in the minimum age from 21      to 18 would now be likely to be acceptable to public opinion. ...      Although it will, of course, be for Ministers and Parliament to      consider our recommendations in this Report, most of us believe      that a recommendation that the minimum age should be reduced to      16 would prove to be wholly unacceptable to public opinion.      Those members consider that public opinion would support the      proposition that the minimum age for homosexual relations should      be higher than the age of consent for sexual intercourse: the law      would then be regarded as a factor in encouraging those young men      who need protection and assistance to avoid homosexual relations      while they are immature.      ...        41.   In our working paper we concentrated much attention on the      age by which a young man's sexual pattern becomes fixed so that      the performance by him of homosexual acts above that age would      be unlikely to divert him from a heterosexual to a homosexual      pattern of sexual behaviour.   We learned that most medical      commentators consider that with few exceptions a settled      orientation is established before the age of 16.   A minority of      commentators, however, are of opinion that there is a significant      number of young men, including bisexuals ... whose sexual pattern      is not fixed by that age.   Those of us who favour a minimum age      of 16 think that the proportion is too small to merit a minimum      age of 18.   Most of us, however, take the view that a reduction      in the minimum age to 16 could only be justified if there were      stronger evidence than at present exists to the effect that such      a reduction would not have harmful consequences for 16- and      17-year-olds and are strongly influenced by the lack of unanimity      in the medical evidence on the subject.   We all accept, however,      that the sexual pattern of the overwhelming majority of young men      is fixed by the age of 18.        42.   Another reason for discouraging young men from      participating in homosexual relations is the possibility that      they will not be sufficiently mature to cope with the      consequences of their actions.   The British Medical Association,      who favour a reduction in the minimum age to 18, have told us      that the physical development of males is in general about      two years behind that of females.   A number of organisations who      commented on our working paper said that in recommending a      minimum age of 18 as opposed to 16 the majority of us had      disregarded the principle of sexual equality (by which we      understand equal treatment of heterosexual and homosexual acts)      which appeared to demand a reduction in the age to 16, the age      which we recommend should remain the age of consent for sexual      intercourse.   To this the majority replies that it seems      reasonable, taking into account the evidence of the British      Medical Association, to assume that emotional and psychological      development do not significantly outstrip physical growth.   They      consider it incumbent on those who assert that boys and girls of      the same age possess much the same degree of emotional and      psychological maturity to adduce evidence in support of their      claim.   In their opinion satisfactory evidence has not been      forthcoming ... "   24.   In January 1994 the British Medical Association (BMA) adopted a report of its Board of Science and Education.   The report discussed the BMA's previous position and the present evidence, and noted concern that young homosexual men were especially at risk of sexually transmitted infections including gonorrhoea and HIV.   It considered that this "may be because they are less able to access sources of information and advice about safer sexual practice", and gave as possible reasons for that lack of access that they feared seeking professional advice because to do so would be to admit to having committed a crime, and because official homosexual organisations operated over-21 policies, to comply with the law as it then stood. The report concluded:        "Of prime concern to the Board ... and to the medical profession      as a whole, are the concerns that the present law may inhibit      efforts to improve the sexual health of young homosexual and      bisexual men.   The average age of first homosexual encounter has      been found to be 15.7, and it is vital that these young      homosexual men receive effective health education and health      care.        Previously the BMA proposed that the age of consent for      homosexual men should be set at 18 to reflect their slower rate      of biological development.   However, most researchers now believe      that sexual orientation is usually established before the age of      puberty in both boys and girls.        The purpose of age of consent legislation is to protect      vulnerable young people from sexual exploitation and abuse, but      there is no clear justification for a differential age for      homosexual male activity and other sexual activity.   Although      homosexual experimentation may be quite common among adolescent      boys (despite the present law), extensive recent research does      not indicate that men aged 16-21 are in need of special      protection because they may be "recruited" into homosexuality.      Unwelcome sexual attractions of a seriousness warranting criminal      prosecution are equally offensive whether the victim is a man or      a woman: the same law should therefore apply to all.        Evidence would suggest that reducing the age of consent to 16      would be unlikely to affect the number of men engaging in      homosexual activity, either in general or within specific age      groups.   Commencement of sexual activity well below the age of      21 has been established ...        There is no convincing reason against reducing the age of consent      for male homosexuals to 16 years, and to do so may yield some      positive health benefits.        [The Board recommended:]        That the age of consent for homosexual men should be set at 16      because the present law may inhibit efforts to improve the sexual      health of young homosexual and bisexual men."   25.   The question of an appropriate minimum age of consent to male homosexual relations was debated in Parliament during consideration of amendments to the Criminal Justice and Public Order Bill.   26.   On 21 February 1994, on a free vote, the House of Commons by 307 votes to 280 rejected an amendment to reduce the minimum age of consent to 16 but, by 427 votes to 162, accepted an amendment to reduce the minimum age to 18.   27.   In the course of the debates, the then Home Secretary, Mr. Michael Howard, supporting the reduction of the age of consent to 18, but opposing a reduction of the age to 16, said, inter alia:        "... The [Policy Advisory] Committee could not reach a unanimous      view.   But the majority of its members concluded, like [the]      Wolfenden [Committee], that the key question was to determine an      age at which most young men could be said to be mature enough to      take a decision on these matters for themselves.   The Committee's      conclusion, which was informed by the public consultation which      preceded its report, was that the age of consent should be      reduced to 18.   Although current medical opinion seems more      rather than less certain that sexual orientation is fixed in both      sexes by 16 in most cases, there will still be some young men for      whom homosexual experience after that age will have profoundly      influential and potentially disturbing effects.        It is also still unquestionably the case that most parents hope      and expect their sons to follow a heterosexual lifestyle and hope      that in due course they will build a family life of their own.      The Committee put it in the following way at paragraph 38:        'The majority of parents would surely wish their children to grow      up with the desire and possibility of marriage and children, and      anything which puts this expectation at risk would be deplored.'        I believe that those arguments still hold good.   It is still true      that in following a homosexual way of life a young man sets      himself apart from the majority.   From a certain age, he should      be free to take that decision and no persecution or      discrimination should flow from his decision, but he should not      be misled into thinking that his decision will have no effect on      his dealings with society at large.   At the very least, he      deserves time in which to make up his mind.      ...                  (H.C. Deb. 21 February 1994, Col. 93)      Two further arguments have been put with especial frequency in      the discussions leading up to the debate and I want to deal with      them. They both concern equality, although to my mind the      analysis offered by Wolfenden and by the Policy Advisory      Committee, which I have just discussed, offers a more robust      basis for what the criminal law can and should do in the area      than an over-simple reliance on parity, either as between the      sexes or as between countries.        Equality of treatment under the law between homosexuals and      heterosexuals does not in my view represent an end in itself.      Whatever the scientific evidence about the age at which sexual      orientation is fixed, it would be wrong to ignore the instinctive      and deeply-held concern of many people that a decision to have      homosexual sex is quite different from a decision to have      heterosexual sex.   Both Wolfenden and the Policy Advisory      Committee recognised the general desirability of avoiding      unnecessary discrepancies in the law's treatment of men and      women, but both eventually supported recommendations which      acknowledged that such discrepancies were still justified.   In      my view, therefore, we shall not offend against any fundamental      political or civil right if we continue to reflect in the      criminal law a public understanding of the difference between      homosexual activity and heterosexual activity.      ...                                    (ibid, Cols. 95-96)        There is a second element of equality on which some reliance has      been made.   It has been suggested that we in this country should      change our age of consent because it has been changed in other      countries.   That is a rather extraordinary argument, particularly      as there is no consensus in other countries about what that age      should be.   If we are unusual in Europe in respect of our age of      consent for homosexuals and we are satisfied that there is good      reason for us to do so, we are entitled to maintain that      position.   That is an issue which we can and should decide for      ourselves.      ...        For my part, I believe that reducing the age of consent from 21      to 18 strikes the right balance.   On the one hand, we should not      criminalise private actions freely entered into by consenting      mature adults.   On the other hand, we need to protect vulnerable      young man from activities which their lack of maturity might      cause them to regret ..."                                                (ibid, Col. 97)   28.   In supporting a reduction of the age of consent to 16, Mr. Tony Blair, the then Leader of the Opposition said, inter alia:        "Let us be clear about the issue before us tonight.   It is not      at what age we wish young people to have sex. It is whether the      criminal law should discriminate between heterosexual and      homosexual sex.   It is therefore an issue not of age, but of      equality.   By supporting equality, no one is advocating or urging      gay sex at 16 any more than those who would maintain the age of      consent for heterosexual sex advocate that girls or boys of 16      should have sex.   It is simply a question of whether there are      grounds for discrimination.        At present, the law discriminates.   There is no doubt about the      personal misery that such discrimination brings:   to young people      frightened to admit their own sexuality and of the fear of      imprisonment, and to any man who is homosexual and who knows that      the criminal law treats that in a different and more      incriminating way.        The argument - and the only argument - advanced to justify that      discrimination and its attendant tragedy is that it is necessary      for the protection of young people.   Without it, it is said,      young men unsure of their sexuality may be preyed upon by older      homosexuals and induced to become homosexual when they otherwise      would not. I will attempt to deal with that argument tonight.      ...        The overwhelming evidence - scientific or indeed merely      experience of life - suggests that being homosexual is not      something that people catch, are taught or persuaded into, but      something that they are.        It is not against the nature of gay people to be gay; it is in      fact their nature. It is what they are, it is different, but that      is not a ground for discrimination.   The vast bulk of evidence      suggests that, at 16, boys and girls, particularly nowadays, are      aware of their sexuality and that, what is more, that sexuality      is normally developed with those of their own age, not with      predatory elders ...      ...                                    (ibid, Cols. 97-98)        We talk about predatory older men.   That happens - if it does      happen - not just with young men but with young girls, yet no one      would advance that as a reason for raising the age of consent.      ...        The point that has been made about other countries is not that      we should follow what happens in other countries, or the fact      that the majority of other countries in Europe do not      discriminate should mean that we necessarily blindly follow their      path;   it is, first, that many of those countries are among the      most conservative, usually, in such matters, which makes their      decision on equality all the more telling, and, secondly, and      most important, that there is no evidence to suggest that any of      the adverse consequences forecast as attending a move to equality      here have happened in those countries - none, not a shred of      evidence, not anywhere.      ...        In the end, all the concern, however ostensibly objective - let      us assume that some of it is genuinely motivated - is traceable      to that very subjective prejudice.   Let us be clear that people      are entitled to think that homosexuality is wrong, but they are      not entitled to use the criminal law to force that view upon      others. That is where the real practitioners of political      correctness lie - not in those who merely seek equality of      treatment but in those who insist that the law must discriminate      in favour of their view of the conduct of others. That is why,      also, the so-called compromise of 18 is misguided.   What is the      rationale behind maintaining the stigma but at a different age?      It is an issue not of age but of equality ..."                                                (ibid, Col. 99)   29.   The amendments to the Bill were further debated in the House of Lords on 20 June 1994.   The House voted, again on a free vote, by 245 votes to 71, not to reduce the minimum age of consent to 16 but, by 176 votes to 113, to reduce it to 18.   30.   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.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   31.   The Commission has declared admissible the applicant's complaints that the fixing of the minimum age for lawful homosexual activities at 18, rather than 16, is in violation of his right to respect for his private life, and is discriminatory.   B.    Points at issue   32.   Accordingly, the issue to be determined is whether there has been a violation of Article 8 (Art. 8) alone or taken in conjunction with Article 14 (Art. 8+14) of the Convention by reason of the prohibition of consensual homosexual acts between males over the age of 16 but under the age of 18 years.   C.    Articles 8 and 14 (Art. 8+14) of the Convention   33.   Article 8 (Art. 8) of the Convention provides, so far as is material, as follows:        "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      protection of health or morals, or for the protection of the      rights and freedoms of others."   34.   The applicant asserts, and his assertion is undisputed by the Government, that he is a homosexual who has had sexual relations with other males since he attained the age of 16.   The Government emphasise that despite the content of the law, the applicant has not been prosecuted or threatened with prosecution and that there is no suggestion that the police or any other domestic authority showed any interest in his sexual activities prior to his eighteenth birthday. Consequently, it is argued that any interference with the applicant's private life has, in practice, been extremely limited.   35.   The Commission notes that, prior to November 1994 and until the applicant's eighteenth birthday, the effect of the legislation was to prohibit the applicant from engaging in any homosexual act with another male.   36.   Consistently with the Court's judgments in the Dudgeon, Norris and Modinos cases (Eur. Court HR, Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45; Norris v. Ireland judgment of 26 October 1988, Series A no. 142; Modinos v. Cyprus judgment of 22 April 1993, Series A no. 259), the Commission considers that the maintenance in force of the impugned legislation constituted an interference with the applicant's right to respect for his private life (which includes his sexual life) within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.   Even though the applicant has not in the event been prosecuted or threatened with prosecution, the very existence of the legislation directly affected his private life: either he respected the law and refrained from engaging in any prohibited sexual acts prior to the age of 18 or he committed such acts and thereby became liable to criminal prosecution. The Commission further finds no reason to doubt the general truth of the applicant's allegations as to the distress he felt in having to choose between engaging in a sexual relationship with a like-orientated person of around the same age and breaking the law.   37.   The Commission accordingly finds that the applicant was until he attained the age of 18 directly affected by the legislation in question and can claim to be a "victim" thereof under Article 25 (Art. 25) of the Convention.   38.   The Commission recalls that the compatibility with Article 8 (Art. 8) of the Convention of the setting of a minimum age below which male homosexual acts are prohibited has been considered in the case-law of the Court and of the Commission.   It is well established by that case-law that there is a legitimate necessity in a democratic society for some restrictions over homosexual conduct, notably in order to provide safeguards against the exploitation and corruption of those who are specially vulnerable by reason of their youth.   As the Court has observed, such restrictions serve the interests both of the "protection of the rights and freedoms of others" and the "protection of morals":        "Thus, 'protection of the rights and freedoms of others', when      meaning the safeguarding of the moral interests and welfare of      certain individuals or classes of individuals who are in need of      special protection for reasons such as lack of maturity, mental      disability or state of dependence, amounts to one aspect of      'protection of morals'..."        (the above-mentioned Dudgeon judgment, p. 20, para. 47)   39.   The Court further observed that it fell in the first instance to the national authorities to decide on the appropriate safeguards required for the defence of morals in their society and, in particular, to fix the age under which young people should have the protection of the criminal law (ibid, p. 24, para. 62).   40.   In its Report in Application No. 7215/75, X. v. the United Kingdom (D.R. 19, p. 66) the Commission found that the interference in the applicant's private life involved in fixing the age of consent at 21 was justified as being necessary in a democratic society for the protection of the rights of others.   The Commission observed that the age limit of 21 might be regarded as high in the present era, especially when contrasted with the current position in other Member States of the Council of Europe, and that it might be seen as inconsistent to have an age of majority applicable to voting and other legal transactions which was lower than the age of consent for homosexual behaviour.   However, the Commission held that it could not disregard the fact that the question had been examined by the Wolfenden Committee, whose recommendations had been adopted by Parliament and incorporated in the 1967 legislation;   nor could it ignore the fact that the issue had been before Parliament again and was being then currently re-examined by the Criminal Law Revision Committee and the Policy Advisory Committee on Sexual Offence.   In addition, the Commission took the view that there was a realistic basis for the respondent Government's opinion that, given the controversial and sensitive nature of the question involved, young men in the 18-21 age bracket who were involved in homosexual relationships would be subject to substantial social pressures which could be harmful to their psychological development.   41.   More recently, the Commission found an Austrian measure, which prohibited a male person over the age of 19 from engaging in homosexual acts with a person of the same sex who was under that age, to be compatible with Article 8 (Art. 8) of the Convention, the Commission deciding that the age of "consent" was lower than in the previous case concerning the United Kingdom and that there was nothing to distinguish it from that case, save that the Austrian legislation was less restrictive (No. 17279/90, W. Z. v. Austria, Dec. 13.5.92, unpublished; see also No. 22646/93, H.F. v Austria, Dec 26.6.95, unpublished).   42.   The Government contend that the Commission should not depart from this jurisprudence and that the decision of Parliament to fix and maintain a minimum age of 18 for homosexual acts by men is well within the margin of appreciation open to a Contracting State in serving the interests of the protection of the rights of others and of morals.   43.   The applicant, while contesting these submissions of the Government, has focused his principal argument on the alleged discriminatory treatment of homosexual men, resulting from the difference in the minimum age for lawful private homosexual and heterosexual relationships, and the difference of treatment between homosexual men and women.   44.   In the light of the arguments which have been developed by the parties in their written and oral submissions, the Commission finds it appropriate to examine the issues raised under Article 8 in conjunction with Article 14 (Art. 8+14) of the Convention.   45.   Article 14 (Art. 14) of the Convention provides as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."   46.   The applicant contends 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 male and female homosexuals, and that the justifications tendered for the difference between homosexuals 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 Committee (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.   47.   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.   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 young male 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.   48.   The Commission recalls that Article 14 (Art. 14) of the Convention affords protection against discrimination, that is, treating differently persons in relevantly similar situations without due justification (Eur. Court HR, Fredin v. Sweden judgment of 18 February 1991, Series A no. 192, p. 19, para. 60).   In particular, "a difference of treatment is discriminatory, for the purposes of Article 14 (Art. 14), if it 'has no objective and reasonable justification', that is if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised'.   Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment" (Eur. Court HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996, para. 42).   49.   In the United Kingdom, prior to 3 November 1994, the minimum age for consensual male homosexual relations was 21 and, since that date, the minimum age has been 18.   The age of consent for consensual heterosexual and lesbian relations has at all material times been 16. There were and are therefore at least two differences which are at issue: the difference in treatment of homosexual and heterosexual relationships, and the difference in treatment between male homosexual and lesbian relationships.   The parties' submissions as to discrimination have concentrated principally on the difference of treatment between homosexuals and heterosexuals, and in the following discussion, the Commission will do likewise.   50.   The different minimum ages for lawful sexual relations between homosexuals and heterosexuals are a difference based on sexual orientation.   In terms of Article 14 (Art. 14) of the Convention, it is not clear whether this difference is a difference based on "sex" or on "other status".   The Commission notes that the Human Rights Committee set up under the International Covenant on Civil and Political Rights has considered that sexual orientation is included in the concept of "sex" within the meaning of Article 26 (Art. 26) of that Covenant, and that it did not therefore ne