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 need to decide whether sexual

orientation was included in the concept of "other status" (Toonen

v. Australia, CCPR/C/50/D/488/1992).

determine whether a difference based on sexual orientation is a matter

which is properly to be considered as a difference on grounds of "sex"

or of "other status".  In either event, it is a difference in respect

of which the Commission is entitled to seek justification.

52.  The Commission notes that it is not contested that the applicant,

as a young man of 17 years of age who wished to enter into and maintain

sexual relations with a male friend of the same age, was in a

"relevantly similar situation" to a young man of the same age who

wished to enter into and maintain sexual relations with a female friend

of the same age.

53.  The Commission must accordingly next determine whether the

difference in treatment of these categories pursued a legitimate aim.

54.  The Commission accepts, as does the applicant, that the aim of

protecting morals and the rights of others is legitimate.  The

Commission also accepts that legal measures which prescribe age limits

for particular types of sexual behaviour are, in principle, a

legitimate way of pursuing that aim.  Whether, in the specific case,

the aim of protection of morals can be sufficient to justify differing

ages is a matter which the Commission will consider in connection with

the proportionality of the means and the aim.

55.  The third question for the Commission is whether there was a

reasonable relationship of proportionality between the means employed

and the aim sought to be realised, and it is in this connection that

the Commission must bear in mind the margin of appreciation which the

respondent enjoys in assessing whether and to what extent differences

justify a different treatment.

States enjoy a very broad margin of appreciation concerning the

assessment of the measures appropriate in relation to matters

associated with questions of morality.  It is true that, in the context

of measures designed to protect the moral interests and welfare of the

society, the Court has held that State authorities are in principle in

a better position than the international judge to give an opinion on

the exact content of those requirements.  It is true too that, as noted

above, the Court, in the context of Article 8 (Art. 8) of the

Convention, has acknowledged the legitimate necessity in a democratic

society for some degree of control over homosexual conduct "notably in

order to provide safeguards against the exploitation of those who are

specially vulnerable by reason, for example, of their youth"

(above-mentioned Dudgeon judgment, p. 25, para. 62).  On the other

hand, the Court has underlined that in areas involving intimate aspects

of private life, there must exist particularly serious reasons before

interferences on the part of public authorities can be legitimate for

the purposes of Article 8 para. 2 (Art. 8-2) (above-mentioned Dudgeon

judgment, p. 21, para. 52, confirmed as recently as 1993 in the

above-mentioned Modinos judgment, p. 12, para. 25).  Moreover, in

matters concerning alleged discrimination on grounds of sex, very

weighty reasons would have to be put forward before the Convention

organs could regard a difference of treatment based exclusively on the

ground of sex as compatible with the Convention (see Eur. Court HR,

Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A

no. 291-B, p. 32, para. 24).

difference in treatment of heterosexuals and homosexuals is based on

"sex" or "other status", given that it impinges on a most intimate

aspect of affected individuals' private lives, the margin of

appreciation must be relatively narrow.

decisions by the Commission recognising that the criterion of social

protection justifies not only the imposition of restrictions on male

homosexual activity but the setting of a higher minimum age than in the

case of heterosexuals.  In particular, in X v the United Kingdom

(No. 7212/75 referred to above) the Commission found that an objective

and reasonable justification existed for the different ages of consent,

there being a realistic basis for the Government's opinion that, given

the controversial and sensitive nature of the question involved, young

men in the 18-21 bracket who were involved in homosexual relationships

would be subject to substantial social pressures which could be harmful

to their psychological development.  Reliance is further placed on the

conclusion of the majority of the Policy Advisory Committee which,

while recommending the reduction of the age of consent to 18, was not

prepared to accept the reduction of the age to 16:  the majority of the

Committee expressed the view that such reduction could only be

justified if there was stronger evidence than then existed to the

effect that the reduction would not have harmful consequences for 16

and 17 year olds and stated that they were strongly influenced by the

lack of unanimity in the medical evidence on the subject.

United Kingdom is now nearly 20 years old.  While it is true that the

views expressed in that Report have been subsequently repeated, it is

also true that major changes have in the meantime occurred in

professional opinions - particularly those of the medical profession

- on the subject of the need for the protection of young male

homosexuals and on the desirability of introducing an equal age of

consent.  In the first place, it is noted that even by 1981 the Policy

Advisory Committee was unanimous in its view that the sexual pattern

of the overwhelming majority of young men was fixed by the age of 18

and that a minimum age in excess of 18 could no longer be supported.

Since 1981 there have been further important developments in

professional opinion.  In particular, as noted above, the Council of

the British Medical Association (BMA), which in 1981 gave evidence to

the Policy Advisory Committee that boys and girls of the same age did

not possess the same degree of emotional and psychological maturity,

observed in 1994 that most researchers now believed that sexual

orientation was usually established before the age of puberty in both

boys and girls and referred to evidence that reducing the age of

consent would be unlikely to affect the majority of men engaging in

homosexual activity, either in general or within specific age groups.

The BMA Council concluded in its Report that the age of consent for

homosexual men should be set at 16 since the then existing law might

inhibit efforts to improve the sexual health of young homosexual and

bisexual men.  An equal age of consent was also supported by the Royal

College of Psychiatrists, the Health Education Authority and the

National Association of Probation Officers as well as by other bodies

and organisations concerned with health and social welfare.  It is

further noted that equality of treatment in respect of the age of

consent is now recognised by the great majority of Member States of the

Council of Europe.

its earlier case-law in the light of these modern developments and,

more especially, in the light of the weight of current medical opinion

that to reduce the age of consent to 16 might have positively

beneficial effects on the sexual health of young homosexual men without

any corresponding harmful consequences.

justification for maintaining different ages of consent for homosexual

males and for heterosexuals, the Government place considerable reliance

on the fact that the issue was recently and fully debated by a

democratically elected Parliament which, on a free vote, decided to

reduce the minimum age of consent to homosexual acts to 18 but rejected

a proposal to assimilate the age of consent to that for heterosexuals.

be attached to the fact that the issue has been recently considered by

the legislature and that the reduction of the minimum age to 16 was

rejected. Nevertheless, this factor cannot of itself be decisive.  Of

more importance is the sufficiency of the reasons advanced to justify

maintaining a different age of consent.

Parliament and are adopted and repeated in the Government's

submissions.  In the first place it is argued that certain young men

between the ages of 16 and 18 do not have a settled sexual orientation

and that the aim of the law is to protect such vulnerable young men

from activities which will result in considerable social pressures and

isolation which their lack of maturity might cause them later to

repent:  it is claimed that the possibility of criminal sanctions

against persons aged 16 or 17 is likely to have a deterrent effect and

give the individual time to make up his mind.  Secondly, it is argued

that society is entitled to indicate its disapproval of homosexual

conduct and its preference that children follow a heterosexual way of

life.

reasonable and objective justification for maintaining a different age

of consent for homosexual and heterosexual acts or that maintaining

such a differential age is proportionate to any legitimate aim served

thereby.  As to the former argument, as was conceded in the

Parliamentary debates, current medical opinion is to the effect that

sexual orientation is fixed in both sexes by the age of 16 and that men

aged 16-21 are not in need of special protection because of the risk

of their being "recruited" into homosexuality. Moreover, as noted by

the BMA, the risk posed by predatory older men would appear to be as

serious whether the victim is a man or woman and does not justify a

differential age of consent.  Even if, as claimed in the Parliamentary

debate, there may be certain young men for whom homosexual experience

after the age of 16 will have influential and potentially disturbing

effects and who may require protection, the Commission is unable to

accept that it is a proportionate response to the need for protection

to expose to criminal sanctions not only the older man who engages in

homosexual acts with a person under the age of 18 but the young man

himself who is claimed to be in need of such protection.

to indicate disapproval of homosexual conduct and its preference for

a heterosexual lifestyle - the Commission cannot accept that this could

in any event constitute an objective or reasonable justification for

inequality of treatment under the criminal law.  As the Court observed

in its Dudgeon judgment in the context of Article 8 (Art. 8) of the

Convention:

     "'Decriminalisation' does not imply approval, and a fear that

     some sectors of the population might draw misguided conclusions

     in this respect from reform of the legislation does not afford

     a good ground for maintaining it in force with all its

     unjustifiable features."

     (above-mentioned Dudgeon judgment, p. 24, para. 61)

reasonable justification exists for the maintenance of a higher minimum

age of consent to male homosexual, than to heterosexual, acts and that

the application discloses discriminatory treatment in the exercise of

the applicant's right to respect for private life under Article 8

(Art. 8) of the Convention.

     CONCLUSION

67.  The Commission concludes, by fourteen votes to four, that in the

present case there has been a violation of Article 8 of the Convention,

taken in conjunction with Article 14 (Art. 8+14) of the Convention.

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

                                                  (Or. French)

          CONCURRING OPINION OF Mr. I. CABRAL BARRETO

                  JOINED BY Mr. I. CONFORTI

     J'ai voté, avec la majorité, pour la violation de l'article 8

combiné avec l'article 14 de la Convention.

     Toutefois, au raisonnement de la majorité, j'ajouterai qu'il

existe également une discrimination par rapport aux relations

homosexuelles des filles âgées de seize ans (par. 49).

     Comme cela est indiqué à juste titre au paragraphe 64,

l'orientation sexuelle des garçons et des filles est aujourd'hui fixée

à seize ans, et je n'arrive pas à comprendre le traitement différent

qui est accordé au Royaume-Uni aux relations homosexuelles masculines

ou féminines (entre garçons ou entre filles).

                                                 (Or. English)

       DISSENTING OPINION OF MM. K. HERNDL AND I. BÉKÉS

     We regret that we cannot concur with the majority's view that by

maintaining a different minimum age for lawful private homosexual and

heterosexual relationships - 18 years for the former vs. 16 years for

the latter - the United Kingdom should be regarded as being in

violation of Article 8 of the Convention, taken in conjunction with its

Article 14.

     The issue at stake in the present case is exclusively whether a

different treatment of homosexual and heterosexual relations, insofar

as the minimum age of consent is concerned, is permissible under the

Convention or not.

     While the majority seem to recognise that some need for the

protection of young male homosexuals (below the statutory age of 18

under present law in the United Kingdom) may still exist, as there may

be certain young men for whom homosexual experience after the age of

16 (but under the age of 18) will have influential and potentially

disturbing effects, they find that maintaining the different minimum

age "is not proportionate to any legitimate aim served thereby"

(para. 64 of the Report).

     So far the Commission has consistently held (cf. X. v. Federal

Republic of Germany, No. 5935/72, Dec. 30.9.1975, D.R. 3 p. 46;

X. v. the United Kingdom, No. 7215/75, Dec. 12.10.1978, D.R. 19 p. 66,

Johnson v. the United Kingdom, No. 10389/83, Dec. 17.7.1986, D.R. 47

p. 72; Zukrigl v. Austria, No. 17279/90, Dec. 13.5.1992, unpublished;

H. F. v. Austria, No. 22646/93, Dec. 26.6.1995, unpublished) that

setting a higher minimum age for lawful homosexual relationships than

for heterosexual relationships is not in violation of the Convention.

Such type of different treatment was regarded by the Commission as

having "an objective and reasonable justification in the criterion of

social protection".   With its present finding the Commission departs

from this established jurisprudence on the sole ground that "now" "most

researchers believe that sexual orientation is usually established

before the age of puberty in both boys and girls".  This is a quotation

from a Report of the British Medical Association which voted in 1994

"to support lowering the age of consent for gay men to 16" (although

as stated in the same Report the Association had previously proposed

"that the age of consent for homosexual men should be set at 18 to

reflect their lower rate of biological development").

     While, as we believe, all States parties to the Convention share

the view expressed by the Court that the Convention is a living

instrument which must be interpreted in the light of present-day

conditions (cf. Eur. Court HR, Tyrer v. United Kingdom judgment of

25.4.1978, Series A no. 26, p. 26, para. 31, Marckx v. Belgium judgment

of 13.6.1979, Series A no. 31, p. 31 para. 41, Airey v. Ireland

judgment of 9.10.1979, Series A no. 32, p. 32, para. 26), it is also

true that when interpreting its provisions, the developments and

commonly accepted standards in the policy of the Member States of the

Council of Europe in the relevant field will have to be taken into

account (Tyrer case, para. 31, verbatim, but also the argument made by

the Court in the Marckx case, para. 41, when it stated that it was

"struck" by specific evolutions in the domestic law of Member States).

In the field of the minimum age of consent for sexual relationships

there does, however, not seem to exist a common standard.  A number of

States parties to the Convention still maintain different minimum ages

for homosexual and heterosexual relations, sometimes as far as four

years apart.  According to the majority of the Commission "equality of

treatment in respect of age for consent is now recognised by the great

majority of Member States of the Council of Europe" (para 59 of the

Report).  Does that statement really reflect the present situation?

     The issue of the uniform age in this field was extensively

debated in the British Parliament in 1994, quite some time before the

present application was introduced.  A free vote was taken on how far

to lower the age for homosexual relations (at that time still fixed at

21 years).  On the basis of the available medical studies and

recommendations, including those of the British Medical Association,

the Royal College of Psychiatrists and the Health Education Authority,

Parliament reduced the age of consent to 18 years.  While the argument

mainly ranged between the ages of 16 and 18, the majority in the House

of Commons felt that young men may still be sexually uncertain and

often disturbed between the ages of 16 and 18; they therefore opted for

the higher age.  We cannot see how the Commission at the present stage

can determine that such a decision of the British Parliament based as

it were on a careful consideration of all arguments advanced in favour

of the 18 as well as of the 16 year limit, would constitute a

discrimination forbidden by the Convention and not justifiable under

para. 2 of Article 8.

                                                  (Or. French)

             DISSENTING OPINION OF Mr. J.-C. SOYER

     Je n'ai pu me rallier à l'avis de la majorité, cela pour des

raisons qui se trouvent excellemment exprimées par M. Martínez, d'une

part, et MM. Herndl et Békés, dans leurs opinions dissidentes

respectives.

     Comme M. Martínez, à la démonstration duquel je me rallie

totalement, je considère que l'on doit tenir compte, dans cette affaire

où les données nationales sont prédominantes, de la marge

d'appréciation de l'Etat concerné.

     Comme MM. Herndl et Békés, dont j'adopte sans restriction le

raisonnement, je pense que des données objectives et raisonnables

justifient la distinction que le Parlement britannique a choisi de

retenir pour fixer l'âge à partir duquel les relations homosexuelles

ou hétérosexuelles échappent à la répression pénale.

                                                  (Or. French)

             DISSENTING OPINION OF Mr. F. MARTINEZ

     Je ne partage pas l'avis de la majorité de la Commission. Pour

ma part, j'estime que la présente affaire relève de la marge

d'appréciation qui est l'apanage de l'Etat concerné.

     En effet, le Parlement britannique s'est engagé dans la voie

d'une réduction de l'âge légal des relations homosexuelles entre

hommes. Il n'a pas agi à la légère. Loin de là, il a tenu compte des

études faites et d'opinions savantes exprimées sur le point de savoir

quel était le meilleur âge. Après avoir pris en considération les

différentes opinions sur le sujet, le Parlement a voté et décidé à la

majorité de ramener l'âge légal à 18 ans, et non à 16 ans, comme la

minorité parlementaire préconisait.

     Je signale que le Parlement britannique a pesé les arguments pour

l'un et l'autre âge et que, par la voie démocratique de la majorité des

voix, il s'est décidé pour l'âge de 18 ans. Pourtant, on dirait,

d'après les paragraphes 59 et 60 du rapport, que les 15 membres

représentant la majorité de la Commission européenne des Droits de

l'Homme, dans cette affaire prennent fait et cause pour la minorité

parlementaire.

     Ceci, selon mon avis très personnel, s'apparente à une sorte

d'excès de pouvoir.

     C'est vrai que le rapport de la Commission ne s'arrête pas là et

qu'il présente définitivement son opinion sous couvert d'une

discrimination interdite par l'article 14 de la Convention. Mais cela

ne change rien.

     Il y a des opinions fondées, selon lesquelles les rapports

homosexuels des adolescents ont un impact plus négatif pour leur

développement émotionnel et psychologique que les rapports

hétérosexuels (voir, par exemple, le paragraphe 23 du rapport de la

Commission).  Dans ces circonstances, je pense qu'il y a une

justification objective et suffisante de la part du Parlement

britannique pour fixer un âge différent en fonction de chaque type de

rapport, sans que la Commission européenne des Droits de l'Homme puisse

imposer ses vues à la souveraineté parlementaire, sous couvert de

l'article 14 de la Convention.

     Il en va de même pour la différence entre hommes et femmes. Dès

lors que que les filles sont plus précoces que les garçons (voir page 5

du rapport), il n'y a pas lieu de trouver une violation de la

Convention dans le fait que le Parlement britannique a pris en compte

cette différence-là.

     Enfin, je tiens à souligner que le Parlement britannique est

mieux placé que les membres composant la majorité de la Commission pour

déterminer ce qui convient le mieux au peuple ou à la société qu'il

représente démocratiquement.