APPLICATION/REQUETE N° 5935/72 X . v/FEDERAL REPUBLIC OF GERMANY X. c/RÉPUBLIQUE FÉDÉRALE D'ALLEMAGN E DECISION of 30 September 1975 on the admissibility of the application DÉCISION du 30 septembre 1975 sur la recevabilité de la requête Article 8 of the Convention : A person's sexual life is part of his private life. Some of its aspects however may be the subject of state interference in accordance with the provisions of paragraph 2. Article 8, paragraph 2 of the Convention : Homosexual relationships between adolescents and adults. Criminal offence . Measure necessary for the protection of the rights of others. Up to what age is such protection necessary ? Article 14 of the Convention, combined with Article 8 : Only male homosexuality treated as a criminal offence . Difference in treatment based on a need for social protection. Objective and reasonable justification. ( TRANSLATION ) THE FACTS The facts may be summarised as follows : The applicant, a German national born in 1909, resides at Duisburg . He has already made a previous application to the Commission (No . 3870/68) in which he complained of convictions under the legislation against homosexuality . The Commission declared this application inadmissible as being out of time on 14 December 1970 . In his present application, he complains of a 'new conviction under the - 51 provisions against indecent assault against minors of the same sex (article 175 of th . e Criminal Code) or against children larticle 176 of the Criminal Code) On . . . December 1971 the applicant was found guilty by the Duisburg Regional Court "of having committed acts of indecency with persons of the same sex" some of whom were children . He was sentenced to 2 1/2 years imprisonment . His appeal (Revision) to the Federal Court was rejected on . . .May 1972 . On . . . November 1973 a Chamber of three judges of the Federal Constitutional Court refused to accept for consideration the constitutional appeal against the judgment of the Regional Court . The applicant's complaints may be summarised as follow s lal The applicant complained that he did not have a fair trial before the Duisburg Court . He maintains -that some of the evidence given by the witnesses was not trustworthy or was improperly taken during hearings which were abnormally long . -that certain experts whom he wished to have heard on his defence on the question of homosexual relationships in youth movements had not been called by the court . (b) The applicant further alleges that the criminal provisions by virtue of which he was convicted are contrary to the Convention because they constitute an inter . ference with the right to private life and are discriminatory . He argues in particular that the punishment of a sole type of homosexuality, that of a man over 18 with a partner under 21 as provided for in Article 175 of the Criminal Code, in an unjustified interference by the state with private life . He also consideres that he is the victim of discrimination based on sex because only male homosexuality constituted a criminal offence in certain circumstances . PROCEDURE BEFORE THE COMMISSION On 16 March 1975 the Commission decided in accordance with Rule 42 (2) (b) of the Rules of Procedure to bring the application to the knowledge of the Government of the Federal Republic of Germany so that it might submit its written observations on admissibility . These observations were received on 15 May 1975 and the applicant's observations in reply on 9 June 1975 S . SUBMISSIONS OF THE PARTIES In informing the Government of the Federal Republic of Germany of the application, the Commission requested the parties to limit their observations to the following question : "On the assumption that the legislation punishing masculine homosexuality is compatible with the provisions of Article 8 121 as a measure necessary in a democratic society for the protection of the rights of others, is it not nevertheless contrary to Article 14 taken in conjunction with Article 8 2 " In its observations the Government admitted that the provisions on the -52_ punishment of homosexual relationships with adolescents contained a difference of treatment based on sex . This difference of treatment was, however, strictly justified by the requirements of a policy of deterrence . It was not necessary to provide special protection for girls against homosexual acts by adults for the following reasons : a. It is generally admitted that there are comparatively few female homosexuals as compared with males. b. Experience shows that adult female homosexuals prefer partners of their own age . C. It is generally admitted that these women seldom change their partners . d. It follows that homosexual relationships between an adult woman and a girl under age are very rare. e. In the rare cases of the seduction of a girl by an adult woman experience shows that the girl's personal development and the insertion in society are not generally affected because female homosexuality does not usually show itself in public . The situation was fundamentally different as regards male homosexuality . a. This was much more frequent . b. Male homosexuals prefer young partners . c. These homosexuals frequently change their partner . d. It follows that young men are much more exposed to the risk of homosexual relations with adults that girls . e. On account of the tendency of masculine homosexual couples to show themselves in public, a young man or adolescent is much more exposed to social isolation and conflicts with society . The Government accordingly considered that the difference in treatment founded on sex was not arbitrary ; it had been instituted for the particular purpose of protecting young men . One could not infer from Article 14 that States which punished certain forms of homosexual relationship constituting a danger for the development of masculine adolescents were under a duty to punish female homosexual relationships when a serious policy of criminal deterrence did not require such punishment . The applicant maintained that this distinction was based on inadequate scientific knowledge of the two forms of homosexuality . Even if it was admitted that masculine homosexuality was more widespread and less stable this did not constitute a sufficient reason for not punishing female homosexuality in the same circumstances . Only a very limited number of countries still maintain this discrimination between masculine and feminine homosexuality . THE LAW 1 . The applicant complaints of not having had a fair trial before the Duisburg Court. a . He alleges in particular that the evidence of ce rtain witnesses was not properly taken. The Commission has considered this complaint from the point of view of Article 6 (1) of the Convention which guarantees to everyone the right to a fair hearing by an independent and impartial court . . 53 The children who gave evidence in this case were heard first by the police and then by the competent chamber of ihe court and there was nothing to suggest ihaf the hearings were abnormally long or conducted in a manner inconsistent with the principles of fair trial . Moreover, after having assessed the weight of the evidence of the various witnesses the court found that only three of the four charges of indecent assault were sufficiently proved . A consideration of this complaint has accordingly not satisfied the Commission that there is any appearance of a violation of the rights and freedoms guaranteed by the Convention and in particular by the article referred to above . It theretore follows that ihis complaint is manifestly ill-founded within the meaning of Article 27 (2) of the Convention . b. The apllicant further alleges that certain witnesses were not called by the court . However, the Commission is not required to examine this complaint in relation to Article 6 13) of the Convention, which guarantees the right to obtain the attendance and examination of defence witnesses on the same conditions as apply to prosecution witnesses seeing that the applicant did not raise this question in his appeal (Revision) and has accordingly not effectively exhausted the remedies available to him in German Law . , This part of the application is accordingly inadmissible by virtue of Articles 26 and 27 (3) of the Convention . 2 . The applicant alleges that Article 175 ( 1) of the Criminal Code as amended by the Criminal Reform Law Act of 25 June 1969 is contra ry to Article 8 of the Convention which guarantees a respect for private life .liable to punishment "a man over the age of 18 wh o commits an indecent assault IUnzuchtl on a man under the age of 21" all other homosexual relations are generally speaking outside the field of criminal law unless they involve an element of coersion or violence . . This provision renders A person's sexual life is undoubtedly pa rt of his private life of which it constitufes an important aspect . Some of its aspects however may be the subject of state interf erence and in pa rt icular that of the national legislature in accordance with the provisions of paragraph 2 of A rticle 8 . In this connection the Commission observes that the provisions of the German Criminal Code relating to sexual offences have been considerably amended in recent years. Since the Act of 25 June 1969 masculine homosexuality is no longer punished as such . The purpose of the German legislature as it appears from the text of the Act, the preparatory documents and a recent judgment of the Federal constitutional Cou rt is to prevent homosexual acts with adults having an unfo rt unate influence on the development of heterosexual tendencies in minors . In particular it was feared that on account of the social reprobation with which homosexuality is still frequently regarded a minor involved in homosexual relationships with an adult might in fact be cut off from society and seriously affected in his psychological development . The Commission is not unaware that the danger to which an adolescent is exposed as a result of homosexual relations with an adult is a subject of controversy in several countries . It also notes that several states have unde rtaken a study of the complete decriminalisation of homosexuality and a committee of expe rts of the Council of Europe is studying this problem . _5y The tact remains that the action of the German legislature was clearly inspired by the need to protect the rights of children and adolescents and enable them to achieve true autonomy in sexual matters. This need is broadly admitted in a large number of member states of the Council of Europe . In so far as the protective measure enacted by the legislature can be considered to affect the applicant's private life it falls under the protection of the rights of others within the meaning of paragraph 2 of Article 8 of the Convention . The only difficulty which remains is therefore to decide up to what age the protection of an adolescent is necessary and justifies making homosexuality a criminal offence. Opinions on this point are very varied ; some consider that the age of consent to homosexual relationships must be the same as that of puberty or the same as that required for heterosexual relationships . Some states have fixed at 16 and others at 21 the age after which homosexual relations cannot give rise to criminal proceedings. Ideas are developing rapidly in this field . -It can therefore be admitted that the age above which homosexual relationships are no longer subject to the criminal law may be fixed within a reasonable margin and vary depending on the attitude of society. In the instant case it would not seem that the age limit of 18-21 although relatively high and since lowered can be considered as going beyond this reasonable margin . At all events the applicant was convicted for having had homosexual relationships with adolescents under 16 . As applied to the applicant the German legislation would therefore appear to comply with the provisions of Article 8 121 of the Convention as being a measure necessary in a democratic society for the protection of the rights of others . It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 (2) of the Convention . 3 . The applicant also complains that he was the victim of discrimination founded on sex in that only male homosexuality constitutes a criminal offence . by the Commission from the point of view of Article 14 of the Convention combined with Article 8 . Article 14, which forbids all discrimination in the enjoyment of the rights and freedoms guaranteed by the Convention may be examined together with another article, even though the latter has not been violated in isolation ; in this respect it is sufficient that the "subject Isee the Commission's This complaint was examined matter" falls within the scope of the article in question decision on Application No. 2707/66, Collection 35 p . 1) . the difference of treatment in the Federal Republic In order to decide whether of Germany in the protection of minors with regard to homosexuality amounts to a discriminatory interference with the applicant's private life, the Commission considers it should have regard to the criteria established by the European Court of Human Rights (judgment of July 1968 in the Case "concerning cert ain aspects of the laws on : the objective and reason- the use of languages in education in Belgium") namely able proportionality between the means and the end . In the distinction which it draws between the two forms of homosexuality, German law is based on the principle that the serious inte rference with private life constituted by criminal proceedings for a sexual offence is only just'rfied by a clearly established need for social protection . - 55 The necessity of social protection or the existence of a corresponding danger thus constitute the criteria justifying the difference of treatment . In the Commission's opinion this is a reasonable criterion . Does it however constitute an objective criterion in the sense that it can be used with certainty without being subject to variable or arbitrary interpretation ?The establishment of the existence of a danger making it necessary to protect a social category must be based on various concording analyses of the position and particularly in the instant case, those of psychologists, sociologists and specialists in social protection . It is certain that such studies have been made on several occasions in the Federal Republic of Germany both on adult homosexual behaviour and on the efects on the personality of adolescents of homosexual relationships with adults . They have lead to convincing conclusions as to the existence of a specific social danger in the case of masculine homosexuality . This danger results from the fact that masculine homosexuals often constitute a distinct socio-cultural group with a clear tendency to proselytise adolescents and that the social isolation in which it involes the latter is particularly marked . The Commission therefore considers that the criterion of the need for social protection is, in the field in question, an objective criterion . The threat and employment of criminal sanctions constitute moreover means which are not disproportionate to the object pursued, i.e. that of protection. The Commission concludes that the difference in treatment is prima facie objective and reasonable and that there is accordingly no appearance of discrimination in an interference with private life . The complaint based on Articles 8 and 14 taken together is therefore manifestly ill-founded within the meaning of Article 27 (2) of the Convention . The Commission therefore DECLARES THE APPLICATION INADMISSIBLE . _ 56