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p. 72; Zukrigl v. Austria, No. 17279/90, Dec. 13.5.1992, unpublished;

H. F. v. Austria, No. 22646/93, Dec. 26.6.1995, unpublished) that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