| Analysis |
This case is interesting because the Commission seems to be conflicted about prohibitions on homosexual activities in Germany. The applicant has engaged with sexual activities with minors under 16. This is clearly prohibited and is to be regarded as pedosexual activities. Yet the Commission feels the need to treat this case as a potential stigmatisation of homosexuals, due to legislation in place in Germany criminalising sexual activities by a man older than 18 with another man under 21. It points to the fact that other European countries have decriminalised homosexual activities and to studies that challenge the necessity for criminal provisions being in place.
Yet the Commission also adopts a less liberal approach to the matter. For example, although the Commission underlines that sexual activities are clearly part of the respect for ‘private life’ under Article 8 ECHR, it is not so unequivocal about the activities by the applicant. ‘In so far as the protective
measure enacted by the legislature can be considered to affect the applicant’s private life …’. This statement could be interpreted in light of the applicants pedosexual activities, but because the Commission only approaches this case in terms of homosexual activities, it is arguably unwilling to acknowledge that homosexual activities also fall under the protective scope of the Convention.
Futhermore, the Commission finds that the legal provisions in place fall under the margin of appreciation awarded to the state (albeit it finds the age limit rather high) and stresses that such provisions may be deemed necessary for the protections of the freedoms of others. Why would consensual homosexual activities interfere with a person’s freedoms? The Commission here adopts the reasoning that young man can be lured into homosexual feelings or at least a homosexual life style. ‘The fact remains that the action of the German legislature was clearly inspired by the need to protect the rights of children and adolescents and enable them to achieve true autonomy in sexual matters .’
This line of reasoning is made even more explicit when determining whether the distinction between hetrosexual and homosexual activities in the German law was objective and proportional in light of Article 14. ‘The establishment of the existence of a danger making it necessary to protect a
social category must be based on various concording analyses of the position and particularly in the instant case, those of psychologists, sociologists and specialists in social protection . It is certain that such studies have been made on several occasions in the Federal Republic of Germany both on adult homosexual behaviour and on the efects on the personality of adolescents of homosexual relationships with adults. They have lead to convincing conclusions as to the existence of a specific social danger in the case of masculine homosexuality . This danger results from the fact that masculine homosexuals often constitute a distinct socio-cultural group with a clear tendency to proselytise adolescents and that the social isolation in which it involes the latter is particularly marked . The Commission therefore considers that the criterion of the need for social
protection is, in the field in question, an objective criterion . The threat and employment of criminal sanctions constitute moreover means which are not disproportionate to the object pursued, i .e . that of protection.’
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