H.F. v. AUSTRIA
Doc ref: 22646/93 • ECHR ID: 001-2210
Document date: June 26, 1995
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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)