L. and V. v. Austria
From DADEL
Case Summary
Case of L. and V. v. Austria
European Court of Human Rights
Applications nos. 39392/98 and 39829/98
Judgment of 9 January 2003
The Applicants, two Austrian nationals, Mr. G.L. and Mr. A.V., alleged that the maintenance in force of Article 209 of the Austrian Criminal Code, which penalized homosexual acts of adult men with consenting adolescents between 14 and 18 years of age, and their convictions under that provision violated their rights under Article 8 taken alone and Article 8 in conjunction with Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention”).
Contents |
Facts
In 1997, the Vienna Regional Court in separate trials convicted both Applicants of violating Article 209 of the Criminal Code, which penalized consensual homosexual acts between adult men and adolescents in the age group of 14-18 years. Both Applicants unsuccessfully sought review of the constitutionality of Article 209, which they argued violated their private life. By its judgment of 21 June 2002, the Austrian Constitutional Court found Article 209 unconstitutional and in July 2002, Parliament decided to repeal Article 209. However, under the transitional provisions, the amendment did not apply to criminal proceedings in which the judgment at first instance had already been given.
Admissibility
The European Court of Human Rights ("the Court”) noted that though Article 209 stands repealed, this by itself did not deprive the Applicants of victim status within the meaning of the Convention. The Court pointed out that Applicants can be considered victims unless the national authorities have acknowledged and provided redress for the breach of the Convention. It referred to Applicants' convictions under the contested provision and pointed out that their convictions remained unaffected by the repeal of the law. The Application was found to be admissible.
Merits
The Applicants complained of a violation of their right to private life guaranteed under Article 8 of the Convention as well as discrimination, constituting a violation of Article 14 read in conjunction with Article 8 of the Convention. The Court found that the facts at issue fall within the scope of Article 8 and went on to hold that sexual orientation is a concept covered by Article 14. The Court emphasized that differences based on sexual orientation can be justified only on the basis of particularly strong reasons.
The Court did not find an objective and reasonable justification for why young men in the 14 to 18 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. It referred to the growing European consensus to apply equal ages of consent for heterosexual, lesbian and homosexual relations. The Court held that the Government had not offered convincing and weighty reasons justifying the maintenance in force of Article 209 of the Criminal Code and, consequently, the Applicants' convictions under this provision. The Court considered it unnecessary to examine the Applicants' claim under Article 8 taken alone.
Decision
The Court unanimously found a violation of Article 14 of the Convention read in conjunction with Article 8. The Court considered that the criminal proceedings and, in particular, the trial during which details of the Applicant's most intimate private life were laid open in public, were profoundly destabilizing events in the Applicants' lives and awarded the Applicants compensation for non-pecuniary damages.