FIFTH SECTION

DECISION

Application no . 50936/12 M.D . against Ireland

The European Court of Human Rights ( Fifth Section ), sitting on 16 September 2014 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde , Ganna Yudkivska , Helena Jäderblom , Aleš Pejchal , judges , and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 20 June 2012 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant is an Irish national, who was born in 1990. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He was repres ented before the Court by Mr F. Dorrian , a lawyer practising in Co. Donegal, Ireland.

A. The circumstances of the case

1. The criminal proceedings against the applicant

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . In August 2006 the applicant, then aged fifteen, engaged in sexual acts with a girl aged fourteen. He and the girl were not previously acquainted. She was visiting the locality for the purpose of attending a summer language school, lodging in a private household with other students. Later that evening the girl, in a state of upset, confided to her friends that she had been raped. The matter came to the attention of the school manager early the next morning, and the police were notified. Having taken the girl ’ s statement, the police then located and arrested the applicant on suspicion of rape.

4 . Criminal proceedings were instituted against the applicant in September 2007. He was charged with the offence of sexual intercourse with a female person under the age of seventeen, as well as with the offence of buggery on a person under the age of seventeen, under Section 3(1) of the Criminal Law (Sexual Offences) Act 2006. The applicant ’ s trial was initially scheduled for 28 April 2009, but was stayed by the High Court on 21 April 2009 pending the applicant ’ s constitutional challenge.

2. The constitutional challenge

(a) Proceedings before the High Court

5 . Before the High Court the applicant argued that the Criminal Law (Sexual Offences) Act 2006 was discriminatory, contrary to the Constitution and the Convention. This was so because while Section 3 of the Act made it an offence for him to have sexual intercourse with a child under the age of seventeen, Section 5 provided that the girl was not guilty of an offence in such circumstances. This perpetuated a stereotypical view of the male as the predator and the female as the passive party.

6 . The High Court (Dunne, J.) gave its judgment on 26 March 2010. It was concerned that the case should not be considered in a vacuum as to the factual circumstances that precipitated the criminal proceedings. With the agreement of the parties, a number of statements from the Book of Evidence prepared for the criminal trial were made available to the High Court for the purpose of informing it as to the background to the matter. The High Court Judge had the advantage of reading those statements which included statements made by the girl ( ‘ the complainant ’ ), memoranda of interviews with the applicant, statements of a number of individuals who were in the company of the applicant and the complainant at the time of the alleged offences and statements from a number of police and other witnesses.

7 . The High Court was satisfied that prior to the events which gave rise to the criminal proceedings the applicant and the complainant had not known each another. They first encountered one another the previous day. It appeared from the account of the complainant that there was some sexual activity which could be described as “consensual” (in its ordinary, non-legal meaning) namely, oral sex performed on the applicant by the complainant. However, the complainant alleged that an act of buggery and an act of sexual intercourse (the offences with which the applicant was charged) had taken place as a result of the use of force and fear. The applicant accepted that the sexual activity described above took place but he claimed that both the act of sexual intercourse and the act of buggery were “consensual”.

8 . The High Court considered it important to bear in mind that on the complainant ’ s view of the circumstances, this was not a case about “consensual” sexual activity as sometimes described by the applicant ’ s counsel in the course of the proceedings and noted that the applicant ’ s view of the circumstances may be different.

9 . The applicant called evidence from a clinical psychologist who was a professor of childhood research. She referred to studies indicating that in Ireland thousands of adolescents under the age of seventeen were engaging in sexual behaviour. The expert did not see any basis for the unequal treatment of boys and girls. There needed to be protection for children against older individuals and there needed to be some State response if the activities occurred between younger children. She thought it was not appropriate that sexual activity between children of roughly the same age should be criminalised. She accepted that it was something that should not be encouraged because of the risks and consequences that may be attached to early sexualisation of children. When questioned about the discretion of the Director of Public Prosecutions (DPP) over whether or not to prosecute, and whether this was not a sensible approach to a complex issue, she considered it preferable to have greater clarity in the law rather than to rely on prosecutorial discretion.

10 . An official from the office of the DPP gave evidence about the DPP ’ s policy regarding prosecutions under the 2006 Act. He pointed out that the ‘ Guidelines for Prosecutors ’ state that it is not the rule that all offences for which there is sufficient evidence must automatically be prosecuted. In assessing whether to prosecute an alleged child offender, the Juvenile Liaison Scheme must be considered. If that option can be taken then no prosecution will occur. The applicant ’ s case was considered not to be suitable for diversion to the National Juvenile Liaison Office. In essence, before deciding to prosecute, the DPP ’ s office would consider whether there was an element of exploitation in the situation. The legislation sought to protect young children. The official testified that it was unlikely that there would be a prosecution in circumstances where a girl and boy under age appeared to be in consensual relationship and he gave other examples of where prosecution would not be in the public interest. Overall, each case was subject to “multi-faceted consideration”. He agreed that whilst consensual sexual relations between persons under seventeen were common, prosecutions were rare. He confirmed that, if convicted, the applicant would not be registered as a sex offender and he referred to the provisions of the Children ’ s Act 2001 which deal with the non-disclosure of criminal convictions in respect of children.

11 . The High Court considered comparable legislation in the United States of America, Canada and the United Kingdom that had been the subject of unsuccessful legal challenge before the courts of those jurisdictions.

12 . The High Court stated:

“There is no doubt that society has to protect children from under age sexual activity. ... Child sexual abuse as that term is usually understood is nothing if not exploitative. It is not surprising therefore that the legislature in a variety of countries have sought to enact legislation to protect children from underage sexual activity. There is one area of underage sexual activity which causes special difficulty and which does not readily fall into the easily understood classification of child sexual abuse. It is the area of sexual activity of children where the participants in the sexual activity are both under age, as in the present case. Under age sexual activity poses particular difficulties for society, Parliament (the Oireachtas ) and last but not least, the children involved in such activity.

...

There can be little doubt that one of the most serious consequences of underage sexual activity for girls is the risk of pregnancy. Early motherhood carries with it many negative consequences as has been widely observed. A common feature of the many authorities cited above is the experience in other jurisdictions as to the negative impact that flows from under age sexual activity and in particular the negative consequences of early pregnancy and motherhood on young girls. Society is entitled to discourage such activity.

Given the fact that it is clear from the evidence in this case, the various studies referred to above and our own general knowledge as to the extent of underage sexual activity, it is not surprising that the legislature has sought to deter and discourage such behaviour in under age children. It is also beyond doubt that apart from the specific area of underage sexual activity where both participants are under age, society as a whole demands that children must be protected from the evil that is child sexual abuse. The question in this case is whether or not [Parliament] in enacting the 2006 Act has done so within constitutional and ECHR limits.”

13 . The High Court then analysed Section 3 of the 2006 Act, observing that the facts of the case would have supported more serious charges under Section 2 since the complainant had been under the age of fifteen. It then noted that the offence created by Section 3(1) was gender neutral. The age of the perpetrator was irrelevant and the provision applied equally to sexual activity between persons of the same sex. Section 3 did not permit a defence of consent but allowed a defence of honest belief that the child had attained the age of seventeen. Where the offender was less than two years older than the other party (as was the case here), he or she would not be included in the register of sex offenders. It was Section 5 that was the object of the applicant ’ s challenge. The High Court noted that the immunity conferred was limited to females under the age of seventeen, in respect only of sexual intercourse and not other proscribed sexual acts. While this was a difference of treatment on grounds of gender, the question was whether, in the language of the Constitution, “it was legitimated by reason of being founded on difference of capacity, whether physical or moral, or difference of social function of men and women in a manner which is not invidious, arbitrary and capricious.”

14 . The High Court continued:

“The objective of the Act as a whole is to protect children, boys and girls, from sexual abuse. ...[ T]he Act deals with a complex and wide range of sexual activities, circumstances and levels of culpability. Difficult issues such as the issue of consent are dealt with in the Act. Careful consideration has been given to the sentencing regime for offenders - for example, those within a specified age range are not subject to the provisions of the Sexual Offenders Act 2001 while those in a position of authority over a child are liable to longer sentences of imprisonment. This is the legislative framework in which one must view the limited immunity conferred by s. 5. Girls and boys are equally liable to prosecution in respect of sexual activity falling short of sexual intercourse. S. 5 applies only to acts of sexual intercourse. Thus the immunity only applies to the one area of sexual activity that can result in pregnancy. It is the one consequence of sexual activity that carries no risk for boys or men. The risk of pregnancy is only borne by girls.

As is clear from the Layte study, the younger the age at which first sexual intercourse takes place, the greater the probability of a negative outcome, such as the increased risk of unintended pregnancy and STIs; early parenthood is associated with lower educational and occupational attainment and a greater risk of poverty. The adverse consequences that flow from under age sexual activity fall to a greater extent on girls than on boys. Far from being an example of good old fashioned discrimination against young boys as contended by counsel for the plaintiff or a form of “rough equalisation ”, the Act provides a limited immunity to girls in the one area of sexual activity that can result in pregnancy. Society is entitled to deter such activity and to place the burden of criminal sanction on those who bear the least adverse consequences of such activity. The Act goes no further than is necessary to achieve this object. If it were the case that the adverse effects of underage sexual activity (which are not just confined to the risk of pregnancy as is clear from the studies referred to in the course of this case) were borne equally by boys and girls, there would be no rational basis for the difference in treatment of boys and girls. However, that is not the case. That being so, I have come to the conclusion that the discrimination identified in s. 5 is legitimated by reason of being founded on difference of capacity, physical or moral, or difference of social function of men and women in a manner which is not invidious, arbitrary or capricious.”

15 . Lastly, referring to three cases in the United Kingdom in which the issue had been examined in the light of Article 8 of the Convention, the High Court considered that Section 5 was not incompatible with that provision.

(b) Proceedings before the Supreme Court

16 . The applicant appealed, unsuccessfully, to the Supreme Court which delivered judgment, given by Denham C.J., on 23 February 2012.

17 . It was recalled that the 2006 Act had been introduced by the Oireachtas after the Supreme Court had found earlier legislation (dating from 1935) to be inconsistent with the Constitution. That earlier legislation had not permitted a man to defend himself against a charge of unlawful carnal knowledge of a girl under the age of fifteen on the ground that he had honestly believed that she was more than fifteen (the defence as to honest mistake). Whereas the earlier legislation only protected underage females, the 2006 Act aimed at “a more comprehensive and gender-neutral approach to sexual acts with children”.

18 . The Supreme Court then considered Sections 3 and 5 of the 2006 Act in some detail. Regarding Section 5 it observed:

“35. ... [The] exemption for a female child applies only where she engages in an act of sexual intercourse. Otherwise, subject to biological differences, male or female participants are equally capable of being found guilty of “engaging in” the defined sexual acts, presumably extending to consensual participation in an act of buggery upon a girl.

36. It is clearly within the scope of the legislative intention that a female above the age of seventeen may be prosecuted for engaging in sexual acts with under-age boys.”

19 . Looking at the legislation in light of the constitutional requirement of equality, the Supreme Court said:

“45. The ostensible aim of s. 3 of the Act of 2006 is to achieve, so far as is possible, a gender-neutral definition of sexual offences. The section seeks to treat all children under the age of seventeen equally, whether boys or girls. It seeks to define a sexual act in such a way that the offence of engaging in it is committed by any person of either sex with either a boy or a girl under the age of seventeen. What is important, for the purposes of the present appeal is that the offence is also committed by any person, male or female, engaging in it who is himself or herself under that age.

46. Nonetheless, the natural physiological differences between males and females cannot be entirely assimilated. Rape under s. 4(1)(a) of the Criminal Law (Rape) (Amendment Act), 1990 is defined as a sexual assault including “penetration (however slight) of the anus or mouth by the penis ... ” can, by definition, be committed only by the male. The crime of rape defined in section 4(1(b) of the Criminal Law (Rape) Amendment Act, 1990 (penetration of the vagina by any object) could be committed by a female.

47. The act of sexual intercourse itself is engaged in by a male and a female. However, each performs a distinct physiological function. The male ’ s penis penetrates the female ’ s vagina and may emit the sperm which, relevantly for this appeal, is capable of rendering the female pregnant. Thus some natural and inevitable differentiation of treatment is inherent in the statutory scheme.

48. The appellant challenges, as infringing Article 40.1 of the Constitution, s. 5 of the Act of 2006, which expressly differentiates between the male and the female, but only in the case of the act of sexual intercourse, and only when the female is herself under the age of seventeen. The female under seventeen is not exempted from criminal liability in respect of any of the other sexual acts criminalised by the section, when committed with a person under the age of seventeen.

49. The fundamental constitutional question is whether it falls to the Court or to the Oireachtas to make the judgment as to whether the risk that the female will become pregnant justifies exempting her, but not her male counterpart, from prosecution. The framing of sexual offences in such a way as to protect young people from the dangers of early sexual activity is a matter of notorious difficulty. States have, for centuries, wrestled with questions of great sensitivity concerning the appropriate age to set, whether to differentiate between males of different ages, or to differentiate on grounds of difference in age between the persons, not to mention the more recent liberation of same-sex activities from the stigma of criminality.

50. Decisions on matters of such social sensitivity and difficulty are in essence a matter for the legislature. Courts should be deferential to the legislative view on such matters of social policy.”

20 . The Supreme Court then considered American case-law ( Michael M v Superior Court of Sonoma County , 450 U.S. 464) before concluding:

“54. In considering s. 5 of the Act of 2006, the State justified the legislation by a social policy of protecting young girls from pregnancy, by creating a law governing anti-social behaviour , i.e. under age sexual intercourse. This was a choice of the Oireachtas . Even in a time of social change, it is a policy within the power of the legislature. The issue of underage sexual activities by young persons involves complex social issues which are appropriately determined by the Oireachtas , which makes the determination as to how to maintain social order. The Oireachtas could have applied a different social policy. But s. 5, the policy which they did adopt, was within the discretion of the Oireachtas , and it was on an objective basis, and was not arbitrary.

55. The Act, as set out earlier, makes both sexes liable for breaches of the offences created. However, s. 5 excludes the girl from criminal liability when the offence is sexual intercourse, but not for other sexual acts.

56. The Oireachtas made a choice, and such a legislative decision reflects a social policy on the issue. While the legislature could have enacted another social policy, it was an approach the legislature was entitled to take, it was an issue in society to which the legislature had to respond. The danger of pregnancy for the teenage girl was an objective which the Oireachtas was entitled to regard as relating to “differences of capacity, physical and moral and of social function”, as provided for in Article 40.1 of the Constitution. The Court would dismiss the appeal and reject the claim that s. 5 of the Act of 2006 is invalid having regard to the Constitution.”

21 . Finally, the Supreme Court noted that the applicant had referred to the Convention in his submissions but that this had been subsidiary to the constitutional claim. It observed that the applicant had not formulated any viable claim based on Article 8. Noting there was no free standing right under Article 14, it was not satisfied that the applicant had formulated any claim based on the Convention ’ s provisions capable of being entertained by the Supreme Court.

3. The applicant ’ s conviction

22 . The applicant ’ s trial took place on 17 July 2012, on the sole ground of having sexual intercourse with a child under the age of seventeen. He pleaded guilty to the offence. He was sentenced to six months ’ imprisonment, suspended on the basis that he enter into a bond to keep the peace and be of good behaviour for a period of twelve months.

B. Relevant domestic law

23 . The right to equality is set out in Article 40.1 of the Constitution of Ireland as follows:

“All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

24 . The Criminal Law (Sexual Offences) Act 2006 provides as relevant:

3 .—(1) Any person who engages in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall, subject to subsection (3) , be liable on conviction on indictment—

( a ) to imprisonment for a term not exceeding 5 years, or

( b ) if he or she is a person in authority, to imprisonment for a term not exceeding 10 years.

...

(5) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years.

(6) Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years, the court shall have regard to the presence or absence of reasonable grounds for the defendant ’ s so believing and all other relevant circumstances.

(7) It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the child against whom the offence is alleged to have been committed consented to the sexual act of which the offence consisted.

...

(9) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.

(10) A person who—

( a ) has been convicted of an offence under this section, and

( b ) is not more than 24 months older than the child under the age of 17 years with whom he or she engaged or attempted to engage in a sexual act, shall not be subject to the provisions of the Sex Offenders Act 2001.

...

5 .— A female child under the age of 17 years shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse.”

COMPLAINTS

25 . The applicant complained under Article 8 of the Convention that by criminalising the sexual activity he had engaged in the State had violated his right to respect for his private life. He further complained that by exempting the other party from criminal liability, there had been a violation of Article 14 taken together with Article 8. He alleged a violation Article 6 in that his trial had not taken place within a reasonable time and he had been prejudiced by the delay. He also complained that he had not received a fair trial since the 2006 Act was arbitrary and excluded the defence of consent. He reiterated his complaint of discrimination on grounds of gender, in violation of Article 14 this time taken together with Article 6. Finally he complained of a violation of Article 13, there being no effective remedy available to him for the other complaints.

THE LAW

A. Article 8 and Article 14

26 . The applicant argued that the respond ent State had infringed Article 8 by criminalising him for engaging in what he claimed was consensual sexual activity with a peer. He had been subject to penal sanction for the expression of a most intimate aspect of his private life, in violation of the Convention. He further argued that he had been subject to gender discrimination.

27 . The Court considers that, given that the applicant is complaining, principally, of discrimination, the case is more appropriately examined under Article 14 of the Convention. The Court is mindful of the Supreme Court ’ s observation that the applicant had not formulated a claim under Article 8, thus failing to make any link between its provisions an d Article 14. The Supreme Court did, however, examine, albeit as a matter of constitutional law, the applicant ’ s complaint of discrimination.

28 . Since Article 14 has no independent existence, there can be no room for its application unless the facts of the case fall within the ambit of one or more of the other substantive provisions of the Convention. The Court recalls that in a previous case involving the conviction of a boy aged fifteen for having sexual intercourse with a girl aged twelve, it was prepared to accept in the circumstances of that case that the sexual activities at issue fell within the scope of “private life” (see G. v. the United Kingdom , no. 37334/08, § 35, decision of 30 August 2011). It is prepared to adopt the same approach in the present case, and will examine it under Article 14, taken together with Article 8 (see S.L. v Austria, no. 45330/99, § 28, ECHR 2003-I) .

29 . These provisions read as follows, in so far as relevant:

Article 8

“1. Everyone has the right to respect for his private and family life ... .

Article 14

“The enjoyment of the rights and freedoms set forth in [the] 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.”

1. The applicant ’ s arguments

30 . The applicant argued that the 2006 Act discriminated between underage males and females. Where both were willing participants in sexual intercourse, it was only the male who incurred criminal liability. The supposed justification for this was that it would reduce the incidence of teenage pregnancy but there was no evidence to support the view that a discriminatory approach was more effective than a gender-neutral one. The applicant argued that the Supreme Court had failed to ascertain whether such obvious discrimination was proportionate to the perceived dangers of teenage pregnancies. Nor, in his view, had it considered whether the impugned provision was of sufficient importance to override the general guarantee of equality of the sexes. The Supreme Court had failed to take account of the fact that no evidence had been produced by the State to show that the legislation was rationally connected to the objective of deterring teenage pregnancies, or that it impaired to the least possible extent the right to equality. The applicant denied that the exemption of females served the aims of protecting health or morals. Regarding health, there was no evidence to show that the impugned provision actually served this aim. On the contrary, there could well be negative repercussions on the health of young people, since the law would deter the reporting of sexual behaviour to health professionals and impede access by young males to contraception, for fear of revealing criminal activity. In its 2009 report on children and medical treatment, the Irish Law Reform Commission had observed that a number of agencies and interest groups had criticised the 2006 Act, noting that notwithstanding the statutory age of consent, a significant number of Irish adolescents were sexually active, thereby ignoring or disregarding the law. Regarding morals, the applicant did not see how these were better protected by criminalising one party but not the other.

31 . Discriminating against males was neither necessary nor effective in seeking to deter teenage pregnancies, as shown by the relative scarcity of prosecutions under the legislation. While the respondent State could be permitted a margin of appreciation in this matter, it could only be a very narrow one, given that blatant sex discrimination was involved. This could only be allowed in the most exceptional of cases and only then for compelling reasons. This was not such a case. The consequences of teenage pregnancies were not limited to females. The law would discourage a young male from acknowledging paternity, since this would involve admitting a serious criminal offence. Although the consequences of teenage pregnancy were more significant for females, this was not sufficient to justify subjecting only the male partner to criminal sanction. Furthermore, Ireland differed from other European countries regarding the age of consent and in criminalising only the male.

2. The Court ’ s analysis

32 . The Court observes at the outset that the applicant ’ s complaints under Article 8 as formulated above have not been raised at domestic level and that the national courts have, therefore, been deprived of an opportunity to comment on these particular Convention claims. Before those courts, the applicant framed his claim only in terms of discrimination. In these circumstances, as noted above, the Court considers that the case is more appropriately examined under Article 14 of the Convention and, for that purpose, is prepared to accept that the applicant ’ s conviction fell within the ambit of his ‘ private life ’ . T he Court does not lose sight of the fact that the complainant in the applicant ’ s criminal trial did not share his view that the case concerned ‘ consensual ’ sexual activity.

33 . As the Court has held in its case-law on Article 14 of the Convention, not every difference in treatment will amount to a violation of that provision. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory. A difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, 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 realized. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention ’ s requirements rests with the Court. The Court reiterates that the advancement of gender equality is today a major goal in the member States of the Council of Europe. Very weighty reasons would have to be put forward before a difference of treatment based on gender could be regarded as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex (see, with many further references, Konstantin Markin v. Russia [GC], no. 30078/06, § 125-127, ECHR 2012 (extracts) ).

34 . The Court must first consider whether the applicant, who was convicted of an offence under Section 3 of the 2006 Act, was in an analogous situation to the complainant, who was expressly exempted from criminal liability under Section 5 of the Act. It is clear that their specific situations were not analogous. The rationale for Section 5 arises directly out of the fundamental physiological difference between males and females in relation to the consequences of and the risks attendant upon underage sexual intercourse. Even so, since this is not only the basis of but also the justification for Section 5, the Court is prepared, for the purposes of its examination of this complaint, to consider that the applicant and the complainant were in a broadly similar situation. There was a difference in treatment between them, stemming directly from statute. The applicant was convicted for having had sexual intercourse and sentenced. There were no legal consequences for the complainant.

35 . As indicated above, the respondent State must be allowed a margin of appreciation in determining whether different treatment is justified between two similar situations. The applicant submitted that this must be a narrow margin, given the strict approach generally taken by the Court where sex discrimination is concerned. The Court observes that its case-law on gender equality has been developed in contexts very different from the facts at issue in the present case. Previous cases concerned claims by a member of one sex for a right or advantage available to the other sex, for example, concerning names ( Burghartz v. Switzerland , 22 February 1994, § 27, Series A no. 280-B; see also Ãœnal Tekeli v. Turkey , no. 29865/96, ECHR 2004-X (extracts)), or the right to claim a social benefit or tax concession previously reserved to one sex ( Willis v. the United Kingdom , no. 36042/97, ECHR 2002-IV; Konstantin Markin v. Russia , cited above; Weller v. Hungary , no. 44399/05, 31 March 2009; J.M. v. the United Kingdom , no. 37060/06, 28 September 2010), or the imposition of a greater level of civic duty on one sex ( Karlheinz Schmidt v. Germany , 18 July 1994, Series A no. 291-B; Zarb Adami v. Malta , no. 17209/02, ECHR 2006 ‑ VIII).

36 . The context in this case is different and is reflected in the purpose of the 2006 Act, which is to protect children against the harm of premature sexual activity. That is a duty on all the Contracting Parties, which derives from Article 8 of the Convention ( X and Y v. the Netherlands , no. 8978/80, § 27, 26 March 1985) as well as from Article 3 (see most recently O ’ Keeffe v. Ireland [GC], no. 35810/09, § 144, 28 January 2014).

37 . In G. v. the United Kingdom , cited above, which involved a very similar situation to the present case, the Court concluded that the State ’ s margin of appreciation is a wide one (at § 38). While G. did not raise an issue under Article 14, both cases have as their backdrop underage sexual intercourse and the imperative of protecting the integrity and well-being of children. This is a very weighty matter of public interest. The Court therefore considers that in light of the specific circumstances, background and subject matter of this case, the margin of appreciation of the respondent State should not be narrowly confined (see mutatis mutandis G. , § 38).

38 . It is, nevertheless, for the Court, ultimately, to decide whether the State has observed the Convention ’ s requirements. It must be satisfied that the State had objective and reasonable justification for treating the applicant and the complainant differently. It observes that the statutory exemption of underage girls from criminal liability solely in respect of sexual intercourse has an objective basis, rooted in female physiology.

39 . The Court acknowledges the Irish legis lature ’ s concern in respect of the physical and psychological harm to children from penetrative sexual activity, and also regarding the added hazard for girls of pregnancy while they are still themselves children. It therefore had objective reason to criminalise all sexual activity involving children, under Section 3 of the 2006 Act, and to make special provision for girls only in respect of sexual intercourse because of the detrim ent that threatens them alone. Accordingly, it cannot be said that Section 5, which provides a limited exemption from criminal liability for girls in respect of one form of sexual activity (namely, sexual intercourse) is arbitrary or motivated merely by traditions, general assumptions or prevailing social attitudes in the respondent State.

40 . As noted by the Supreme Court (see paragraph 20 above) , the legislature justified the exemption by the need to deter the male, to protect the female, and to encourage her to the report the case. The Court does not doubt that this constitutes a legitimate aim within the meaning of its case ‑ law (see also G. v. the United Kingdom , cited above, at § 35).

41. It remains to be determined whether there is a reasonable relationship of proportionality between this aim and the difference in treatment between the sexes contained in Section 5. T he Court considers that Section 5 should be examined with reference to the overall purpose and scheme of the Act. As noted by the Supreme Court, the previous legislation was narrower in that it only criminalized sexual activity with underage females, whereas the 2006 Act aimed at a more comprehensive and gender ‑ neutral approach. Thus, the offences created by Section 3 may be committed by any person, male or female, of any age, and involve sexual acts between persons of the same as well as opposite gender. The High Court noted that the applicant in the present case was charged with two offences; the first was that he had had sexual intercourse with a person under seventeen years and the second was that he had committed an act of buggery. On the facts alleged in the case, the complainant had no immunity in relation to the act of buggery. The immunity from conviction conferred by Section 5 is limited to acts of sexual intercourse. The Court notes that no charge was brought against the complainant and that the DPP did not proceed with the charge that had, initially, been laid against the applicant. Thus, in this particular respect, the parties were not treated differently. Within this scheme of criminal law, Section 5 introduces just one clearly ‑ drawn exception based on gender and on age. As noted by the domestic courts, a female aged seventeen years who engaged in a proscribed sexual act with a younger boy - or girl - would be criminally liable under the Act. The Court does not consider that the exemption from criminal liability applied to young girls in respect only of sexual intercourse is so broad as to raise a doubt about its proportionality to its intended and legitimate aim. The Court further observes that the legislation achieves an accommodation between the need to deter and punish sexual acts involving children and the reality that it is not uncommon for young people to be engaged in underage sexual activity. Just as the penalties are increased where the perpetrator is a person in authority over the child, so the consequences are lessened where the parties are close in ag e (Section 3(10) of the Act).

42 . Moreover, as noted by the High Court, in the exercise of her discretion under Section 3(9) of the Act where the persons concerned are underage, the DPP examines each case in light of its individual facts, paying particular regard to any element of exploitation but also taking account of any genuine emotional relationship between the parties, in order to determine whether the public interest requires prosecutio n.

43 . While the applicant argued that the respondent State could have regulated the situation differently, that is not the central question. Instead, it is whether the policy choice made by the Irish legislature was within the margin of appreciation available to it under Article 14 ( Evans v. the United Kingdom [GC], no . 6339/05, § 91, ECHR 2007 ‑ I).

44 . The foregoing analysis leads the Court to conclude that the difference in treatment of which the applicant complained is not lacking in justification, and falls within the margin of appreciation of the respondent State.

45 . The applicant ’ s complaint under Article 14 in conjunction with Article 8 must therefore be rejected as manifestly ill founded, pursuant to Article 35 §§ 3(a) and 4 of the Convention.

B. Article 6 and Article 14

46 . Article 6 provides, in so far as relevant:

“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 ... ”

1. The applicant ’ s arguments

47 . The applicant argued that it was unfair that he alone should face a criminal charge. He further complained that the 2006 Act specifically excluded the defence of consent even though the offence of defilement through sexual intercourse was essentially akin to a rape charge. He claimed that the State brought charges under the 2006 Act so as to reduce any chance of a successful defence , the applicant not having any possibility to cross-examine the complainant on the question of consent. The fact that the DPP was vested with discretion under the Act did not cure the unfairness or act as any sort of safeguard. The DPP was not required to give reasons for taking proceedings and was not required by law to have regard to the fact that the applicant had himself been a child at the material time. He reiterated his claim to be the victim of discrimination based on sex. Lastly, he complained that the criminal proceedings against him had been of excessive duration. In consequence, he was no longer a child by the time of his trial and thus not entitled to a trial in camera . Nor would he benefit from the specific sentencing procedure used for children, which included consideration of the child ’ s social circumstances, or the principle that a custodial sentence must be a measure of last resort.

2. The Court ’ s analysis

48 . The Court considers that the applicant ’ s reliance on Article 14 in conjunction with Article 6 is, essentially, a reiteration of the complaint that it has already examined above, in conjunction with Article 8. As regards his criticism concerning the non-availability of the defence of consent, the Court refers to its decision in G. v. the United Kingdom (cited above):

“27. ... [T]he Court underlines that in principle the Contracting States remain free to apply the criminal law to any act which is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. It is not the Court ’ s role under Article 6 §§ 1 or 2 to dictate the content of domestic criminal law, including whether or not a blameworthy state of mind should be one of the elements of the offence or whether there should be any particular defence available to the accused ( ... ).”

49 . The Court finds no reason to impugn the choice of the Irish Parliament to exclude the defence of consent in respect of offences perpetrated upon children as created under the 2006. Indeed, it regards this as entirely consistent with the Act ’ s important purpose. While not relevant to the facts of this case, the Court notes that the Act permits the defence of honest mistake, thereby making good the constitutional deficiency of the previous legislation. The applicant ’ s suggestion that the offence of defilement of a child serves as some sort easier alternative to prosecute than the crime of rape is, in the Court ’ s view, wholly unsubstantiated. Nor does his criticism of the discretion of the DPP add anything to his complaint of unfairness. The Court observes that, in some jurisdictions, prosecutorial discretion is a feature of the criminal law. Moreover, the manner in which the case against the applicant was conducted suggests that in several respects he benefitted from the DPP ’ s discretion. As noted by the High Court, while he could have been charged under Section 2, which creates a much more serious offence, he was charged under Section 3 instead. This meant a lighter range of sentences and, given the closeness in age between the parties, that the applicant would not be registered as a sex offender. The nolle prosequi on the charge of buggery was also in ease of the applicant who had admitted to that offence too.

50. Regarding the duration of the criminal proceedings, the Court observes that the applicant ’ s trial was necessarily stayed by the constitutional challenge that he commenced in March 2008 and which ended with the judgment of the Supreme Court in February 2012. The issues of law in that challenge were both complex and sensitive, so that the duration of those proceedings was not, in the Court ’ s view, excessive. Upon their completion, the criminal process resumed and the applicant ’ s trial took place five months later. Overall, the Court does not find any breach of the reasonable time requirement. As to his complaints about his non-entitlement to a trial in camera, the Court observes that Irish law provides for the possibility to apply for certain restrictions upon reporting (see X . v Ireland ( dec ), no. 14079/04, 15 December 2009 ) and that there is nothing to indicate that the applicant made use of such legislative provisions. The Court notes that the applicant ’ s sentence was at the lighter end of the scale and was suspended for twelve months.

51 . The Court concludes from the above that the applicant ’ s various complaints regarding the determination of the criminal charge against him are manifestly ill-founded and must be rej ected pursuant to Article 35 §§ 3(a) and 4 of the Convention.

C. Article 13

52 . Having found that the applicant ’ s complaints under Articles 6, 8 and 14 are manifestly ill-founded, it follows that the applicant does not have any “arguable claim” of a violation of his rights under the Convention. Accordingly, Article 13 does not apply ( Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131). This complaint too must be rejected as incompatible ratione materiae with the provisions of the Convention in accordance with Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President