Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22646/93

by H. F.

against Austria

The European Commission of Human Rights sitting in private on

26 June 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 September 1993

by H. F. against Austria and registered on 17 September 1993 under file

No. 22646/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, an Austrian national born in 1943, is the former

Head of the Regional Office of an Austrian media corporation. Before

the Commission he is represented by Mr. H. Felsberger, a lawyer

practising in Klagenfurt.

A. Particular circumstances of the case

In 1992 the Klagenfurt Public Prosecutor's Office charged the

applicant with having committed homosexual acts with a person under the

age of 18 years (Section 209 of the Criminal Code) and with having

misused his power as employer for sexual assault (Section 212 of the

Criminal Code).

The trial against the applicant, in which he was assisted by two

counsel, took place on 6 August 1992 before the Klagenfurt Regional

Court (Landesgericht). The court heard several witnesses, inter alia

the alleged victim M. and two further employees of the applicant's

office, who stated that they had also been sexually approached by the

applicant. The defence requested the taking of further evidence, in

particular the hearing of further five employees of the office,

including the applicant's secretaries, and his wife.

On 26 August 1992 a further court hearing took place in which two

of the witnesses requested by the defence, an employee of the office

and one of the applicant's secretaries, were heard. The defence agreed

that the second secretary need not be heard by the court. The Regional

Court dismissed the defence's request for taking of further evidence.

The Regional Court found that the evidence requested was irrelevant to

the proceedings. The hearing of further employees to prove that they

had unhindered access to the applicant's office during the day was not

necessary as the applicant himself had admitted that he had met the

victim and other witnesses undisturbed in his office in the evening.

Also his secretary, who had been heard as a witness, had stated that

in the evening when she left before the applicant he locked his office

by key. The hearing of his wife was not necessary, as her statements

would not exclude that he had extramarital relations and that her

husband had been able to hide his homosexual tendencies from her. It

was not necessary to obtain a psychiatric expert opinion on the victim

M., whom the court had heard at length, as there were no indications

which would warrant such an examination.

On the same day the Regional Court convicted the applicant under

Sections 209 and 212 of the Criminal Code and sentenced him to eight

months imprisonment on probation and a fine of 240 daily rates at

AS 1000 each. The Regional Court found that the applicant had had

sexual relations with M., in his office and elsewhere, that at the time

of the beginning of their relation M. had been 15 years old, that he

had entertained this relation against his will and that he had been one

of the applicant's employees and thus under his authority.

On 18 November 1992 the applicant appealed, requesting, inter

alia, the Court of Appeal (Oberlandesgericht) of Graz to apply to the

Constitutional Court (Verfassungsgerichtshof) for review of the

constitutionality of Section 209 of the Criminal Code. He relied in

this respect on Article 8 and 14 of the Convention.

On 10 March 1993 the Court of Appeal, following an oral hearing,

dismissed the applicant's appeal. The Court of Appeal found that the

Regional Court had acted correctly in dismissing the requested evidence

and, for the same reasons, dismissed the request to hear itself these

witnesses. As regards the request for review of the constitutionality

of Section 209 of the Criminal Code, the Court of Appeal, referring to

case-law in this respect, stated that it had no doubts as to the

constitutionality of this provision.

According to the applicant his case had been reported in the

press.

B. Relevant provisions of domestic law and practice

1. Section 209 of the Criminal Code (Strafgesetzbuch) provides as

follows:

"A male person who after attaining the age of nineteen

years fornicates with a person of the same sex who has

attained the age of fourteen years but not the age of

nineteen years shall be sentenced to detention of between

six months and five years."

2. Section 212 para. 1 of the Criminal Code, as far as relevant,

provides as follows:

"Everyone ... who vis-a-vis a minor under his education,

training or supervision misuses his position for sexual

abuse ... shall be sentenced to detention of up to three

years."

3. Constitutional Court's case law

In a decision of 3 October 1989 the Constitutional Court

(Verfassungsgerichtshof) found that Section 209 of the Criminal Code

was compatible with the principle of equality under constitutional law,

in particular with the prohibition of gender discrimination contained

therein. This decision was also at issue in a previous case dealt with

by the Commission (No. 17279/90, Zukrigl v. Austria, Dec. 13.5.92,

unpublished).

The relevant passages of the Constitutional Court's decision read

as follows:

"The development of the criminal law in the last few

decades has shown that the legislature is striving to apply

the system of criminal justice in a significantly more

restrictive way than before - in pursuance of the efforts

it is undertaking in connection with its policy on the

treatment of offenders, which have become known under the

general heading of "decriminalisation". This means that it

only leaves offences on the statute book or creates new

offences if such punishment of behaviour harmful to society

is still found absolutely necessary and indispensable after

the strictest criteria have been applied. ... It is the

conviction of the Constitutional Court that from the point

of view of the principle of equality contained in Article 7

para. 1 of the Federal Constitutional Law and Article 2 of

the Basic Constitutional Act those legislating in the field

of criminal law cannot reasonably be challenged for taking

the attitude, by reference to authoritative expert opinions

coupled with experience gained, that homosexual influence

endangers adolescent males to a significantly greater

extent than girls of the same age, and concluding that it

is necessary to punish under the criminal law homosexual

acts committed with young males, as provided for under

Section 209 of the Criminal Code. This conclusion was also

based on their views of morality, which they wanted to

impose while duly observing current policy on criminal

justice, which aims at moderation and at restricting the

punishment of offences (while carefully weighing up all the

manifold advantages and disadvantages). Taking everything

into account, we are dealing here with a distinction which

is based on factual differences and therefore

constitutionally admissible from the point of view of

Article 7 para. 1 of the Federal Constitutional Law, in

conjunction with Article 2 of the Basic Constitutional

Act."

COMPLAINTS

1. The applicant complains under Article 6 paras. 1 and 3 (d) of the

Convention that the criminal proceedings against him had been unfair

in that the Austrian courts refused to take the evidence he had

requested. He further submits that his case had been reported in the

press which had unduly influenced the proceedings.

2. He complains under Article 8 of the Convention that his

conviction under Section 209 of the Criminal Code constituted an

unjustified interference with his right to respect for private life.

3. Lastly he complains that Section 209 of the Criminal Code only

applies to relations between men and not to relations between women

which violates Article 14 in conjunction with Article 8 of the

Convention.

THE LAW

1. The applicant complains under Article 6 paras. 1 and 3 (d)

(art. 6-1, 6-3-d) of the Convention that the criminal proceedings

against him had been unfair.

Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention,

as far as relevant, read as follows:

"(1) In the determination ... of any criminal charge

against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law. ...

(3) Everyone charged with a criminal offence has the

following minimum rights:

(d) to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him; ..."

a. As regards the applicant's complaint about the taking of evidence

by the Austrian courts, the Commission recalls that the guarantees

contained in paragraph 3 of Article 6 (Art. 6-3) of the Convention are

specific aspects of the general concept of fair trial set forth in

paragraph 1 of this Article (Art. 6-1). In the circumstances of the

present case, it will consider the applicant's complaint from the angle

of paragraph 1 taken together with the principles inherent in paragraph

3 (d) of Article 6 (Art. 6-3-d) (see Eur. Court H.R., Unterpertinger

judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).

As a general rule it is for the national courts, and in

particular the courts of first instance, to assess the evidence before

them as well as the relevance of the evidence which the accused seeks

to adduce (Eur. Court H.R., Barbera, Messegue and Jabardo judgment of

6 December 1988, Series A no. 146, p. 31, para. 68). Article 6

para. 3 (d) (Art. 6-3-d) of the Convention does not give the accused

an unlimited right to have witnesses called (No. 8417/78, Dec. 4.5.79,

D.R. 15 p. 200). In particular a court is justified in refusing to

summon witnesses when it considers that their statements could not be

of any relevance to the case (No. 10486/83, Dec. 9.10.86, D.R. 49

p. 86). However, the complete silence of a judgment as to why the

court rejected the hearing of a witness for the defence is not

consistent with the concept of a fair trial which is the basis of

Article 6 of the Convention (Eur. Court H.R., Vidal judgment of

22 April 1992, Series A no. 235-B, pp. 32-33, paras. 33-34).

In the present case the Regional Court heard some of the

witnesses requested by the applicant; in respect of one witness it was

agreed that a hearing was not necessary. As regards the remaining

witnesses, the Regional Court, in its judgment of 26 August 1992 did

not find it necessary to hear them as it considered their statements

irrelevant to the proceedings. It gave detailed explanations in this

respect.

The Commission finds that the Regional Court sufficiently

explained why it considered the statements of these witnesses to be

irrelevant to the proceedings. There are no indications that the

Regional Court rejected the applicant's request in an arbitrary and

unfair manner or that the applicant, who was assisted by counsel during

the proceedings, could not argue his case properly.

b. The applicant further submits that press reports on his case had

unduly influenced the proceedings.

The Commission recalls that, in certain cases, a virulent press

campaign can adversely affect the fairness of a trial and involve the

State's responsibility, particularly where it is sparked off by one of

the State's organs (see No. 8403/78, Dec. 15.10.80, D.R. 22 p. 100 at

127; No. 10486/83, Dec. 9.10.86, D.R. 49 p. 86 at 101).

In the present case the applicant has failed to substantiate that

there were reports in the media to such an extent as to have a negative

impact on the conduct and the outcome of the trial.

In these circumstances the Commission finds no appearance of a

violation of the applicant's right to a fair hearing.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains further under Article 8 (Art. 8) of the

Convention that his conviction under Section 209 of the Criminal Code

constituted an unjustified interference with his right to respect for

his private life.

Article 8 (Art. 8) of the Convention reads as follows:

"(1) Everyone has the right to respect for his private and

family life, his home and his correspondence.

(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 necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission recalls that the prohibition of homosexual acts,

even in the absence of any criminal proceedings, constitutes an

interference with the rights under Article 8 (Art. 8) of the Convention

of the persons concerned (see Eur. Court H.R., Dudgeon judgment of

22 October 1981, Series A no. 45, p. 18, para. 41; Norris judgment of

26 October 1988, Series A no. 142, p. 17-18, paras. 35-38; Modinos

judgment of 22 April 1993, Series A no. 259, p. 10-11, paras. 17-24).

The Commission therefore finds that the applicant's conviction

under Section 209 of the Criminal Code constitutes an interference with

his right to respect for his private life. Such interference infringes

Article 8 (Art. 8), unless it is justified under paragraph 2 of Article

8 (Art. 8-2) as being in accordance with law and necessary in a

democratic society to achieve one of the aims listed in this provision.

The applicant's conviction was based on Section 209 of the

Criminal Code and thus in accordance with law. The aim of the

interference was the "protection of the rights and freedoms of others"

and the "protection of morals".

As to the question of necessity, the Commission recalls that in

a previous case it has found that Section 209 of the Criminal Code

constitutes a measure necessary in a democratic society. In this

respect the Commission had regard to the fact that Section 209 of the

Criminal Code did not refer to homosexual activities between consenting

male adults but between adults and minors within age brackets which

the Commission found acceptable having regard to the State's margin of

appreciation (No. 17279/90, Zukrigl v. Austria, Dec. 13.5.92,

unpublished).

The Commission observes further that according to the Regional

Court's judgment of 26 August 1992 the applicant had had sexual

relations with a male person who at the time of the beginning of their

relation was 15 years old, that this person had entertained the

relation with the applicant against his will and that he had been one

of the applicant's employees and thus under his authority.

The Commission therefore finds that in the circumstances of the

present case the interference with the applicant's right to respect for

his private life can be considered "necessary in a democratic society"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant also alleges a violation of Article 14 (Art. 14)

of the Convention in conjunction with Article 8. He points out that

Section 209 of the Criminal Code relates only to male homosexual

behaviour, and considers that the fact that female homosexual behaviour

is not included amounts to an unjustified distinction in the enjoyment

of Article 8 (Art. 8) rights, contrary to Article 14 (Art. 14) of the

Convention.

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."

It follows from the Commission's above findings of an

interference with the applicant's rights under Article 8 (Art. 8) that

Article 14 (Art. 14) is also applicable.

The Commission recalls that for the purpose of Article 14

(Art. 14) a difference of treatment is discriminatory 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

H.R., Belgian Linguistic Case, judgment of 23 July 1968, Series A no.

6, p. 34, para. 10). However, very weighty reasons have to be put

forward before a difference of treatment based exclusively on the

ground of sex can be regarded as compatible with the Convention (see

Eur. Court H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A

no. 263, pp. 21-22, para. 67; Karlheinz Schmidt judgment of 18 July

1994, Series A no. 291 B, pp. 32-33, para. 24).

The Commission observes that the Austrian Constitutional Court

in a decision of 3 October 1989 concerning the constitutionality of

Section 209 of the Criminal Code had examined whether a discrimination

was involved. It found that the reason why female homosexuality had

been excluded from the scope of Section 209 was because it was the

policy of the legislator to impose criminal sanctions only in cases

where such penalty was absolutely necessary, even using the strictest

criteria. It further noted that the legislator, referring to expert

opinions, had considered that there was considerably more danger of

homosexual influence on adolescent males than on females of the same

age. Accordingly, although there was a difference in treatment, the

Constitutional Court found that the distinction drawn by Section 209

of the Criminal Code between male and female homosexuality did not

infringe the Constitution. In view of these reasons the Commission,

in a previous decision, has found that Section 209 of the Criminal Code

did not involve discrimination on the ground of sex prohibited by

Article 14 (Art. 14) of the Convention (No. 17279/90, Zukrigl v.

Austria, Dec. 13.5.92, unpublished).

The Commission observes that the applicant's conviction was not

solely based on Section 209 of the Criminal Code but also on

Section 212 para. 1, the latter provision not containing any

distinction as to the sex of the offender.

Having regard to the Constitutional Court's above decision and

its previous case-law, the Commission finds that in the present case

the State's margin of appreciation has not been overstepped and that,

consequently, there is no appearance of a violation of Article 14 in

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

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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H.F. v. AUSTRIA

H.F. v. AUSTRIA