F.J. and E.B. v Austria - a problematic decision

The European Court of Human Rights has deemed the complaints in F.J. and E.B. v Austria inadmissible. 

The decision is extremely problematic because it conflates the issue of discrimination based on sexual orientation arising from an unequal 'age of consent' with the treatment of persons suspected of having committed child sex offences.

The facts

The applicants, F.J. and E.B, were both independently investigated by the police 'on suspicion of [...] having committed homosexual acts with consenting male persons within the age bracket of fourteen to eighteen, an offence under the former Article 209' of the Austrian Criminal Code.

Article 209, prior to its repeal in 2002, applied a higher minimum age to sexual acts between men than that set for opposite-sex or female same-sex acts, criminalising male homosexual acts between adults and consenting males aged between 14 and 18. 
The Court held in 2003, in L. and V. v Austria, that Article 209 'embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority' and that this was not a 'sufficient justification for the differential treatment [of a homosexual minority] any more than similar negative attitudes towards those of a different race, origin or colour'.  
E.B. (who is now deceased), along with several other applicants, was previously successful in the Court, in E.B. and Others v Austria, in respect of a complaint about the refusal of domestic authorities to delete convictions from their criminal records following convictions under Article 209 of the Austrian Criminal Code. 

However, E.B. (unlike F.J.) had also been investigated by the police in respect of having committed offences under Articles 207 (sexual activity with a child under the age of 14) and 207a (pornographic image of a child) of the Criminal Code. 

The complaints

Both F.J. and E.B. complained, under Article 14 in conjunction with Article 8 of the Convention, about data being stored by the police following investigations under Article 209.

They argued that 'there were still detrimental effects resulting from the past investigations conducted in respect of them on suspicion of their having committed offences under Article 209 of the Criminal Code, even though that provision had been repealed' and 'the Government were therefore under an obligation to provide sound reasons to justify the necessity of prolonging the negative consequences attaching to criminal investigations under Article 209 of the Criminal Code'.

E.B. also complained under Articles 14 and 8, about data held by the police in respect of investigations under Articles 207 (sexual activity with a child under the age of 14) and 207a (pornographic image of a child) of the Criminal Code. 

Therefore, whereas F.J. complained about the retention of data concerning acts between consenting persons that are no longer criminal offences, E.B. complained about the retention of data relating to acts that continue to be child sex offences. 

The Court has conflated discrimination in the 'age of consent' with child sex abuse  

The Court stated that the 'two applications concern similar facts and raise essentially identical issues under the Convention'.

This conclusion is extremely problematic given that E.B. (unlike F.J.) had been investigated for offences of sexual activity with a child under the age of 14 and the possession of pornographic images of a child. 

Combining these complaints conflates two very separate issues arising from very different sets of facts.

It conflates the case of F.J., who was investigated by the police for now repealed offences which, solely on the basis that they concerned men, were then subject to a higher minimum age, with E.B., who was investigated by the police for offences involving children that are applicable to all adult persons.

The facts in the case of F.J. give rise to a claim of discrimination because they concerned offences that related only to homosexual men; the facts in the case of E.B., insofar as they relate to child sexual abuse, do not give rise to any claim of discrimination. 

By combining the complaints the Court rejected the argument that Article 14 (discrimination) was applicable in both cases: 

"While Article 209 of the Criminal Code had been quashed by the Austrian Constitutional Court and therefore is no longer in force, the present cases not only concern police investigations under this provision against the first and second applicant but also investigations against the second applicant E.B. in respect of other offences, Articles 207 and 207a of the Criminal Code which still are in force. Thus, the essence of the applicants’ complaint is not an issue of discrimination on the ground of sexual orientation in breach of Article 14 of the Convention read in conjunction with Article 8 but whether the continued storing of certain data relating to these investigations constituted a justified interference with the applicants’ right to respect for their private life as guaranteed by Article 8 of the Convention. The Court therefore considers that this complaint falls to be examined under Article 8 alone."

By deliberately considering the applications together, the Court effectively 'contaminated' F.J.'s case with the allegations of child sex offences relevant only to E.B.'s case. 

As a result, the Court ruled out the applicability of Article 14 to F.J.

The Court's decision: why the storage of police records did not breach the Convention

In assessing the necessity of interfering with the applicants' right to respect to their private life in a democratic society, the Court noted that all electronically processed data concerning the police investigations in respect of the applicants were deleted, although paper 'copy files' were retained.

It further noted that, following the repeal of Article 209 of the Criminal Code, the Austrian authorities substantially restricted access to the documents in the copy files and, at the applicants’ request, deleted cross-references to these files in the files record and the index cards. As a result of which the copy file was not traceable using these research tools. 

Furthermore, the storage of this information was for a limited period only, with copy files being stored for five years following the end of the year of recording, and index cards and filing registers for twenty years.

The Court concluded that 'in these particular circumstances the storage of data on the police investigations in respect of the applicants on suspicion of their having committed criminal offences struck a fair balance between the competing private and public interests that were at stake. There is accordingly no appearance of a violation of Article 8 of the Convention'.

Why this is a problematic decision

My view of the Court's decision is that it is problematic not because of the conclusion reached, but because of the route taken to reach it. 

Combining a complaint relating to child sex offences with a complaint relating to discrimination on the grounds of sexual orientation is extremely problematic.

How can the Court think it appropriate to reach the conclusion that 'the storage of data on the police investigations in respect of the applicants on suspicion of their having committed criminal offences struck a fair balance between the competing private and public interests that were at stake' when the offences in question were obviously so different?

In the case of F.J., the suspicion related to repealed male homosexual offences. This means that, even if F.J. engaged in the same behaviour again, he would no longer be subject to any criminal sanction. 

In the case of E.B., the suspicion related to offences involving children which, if engaged in again, would (rightly) be subject to criminal sanction.

In my view, the Court should have considered these complaints separately 

Had it done so, it would have considered whether the 'suspicion' of each applicant gave rise to record keeping by the police that was necessary in a democratic society. 

If the Court had considered these complaints separately it may have reached the conclusion that in respect of E.B. the retention of records was necessary in a democratic society because it was a proportionate response to concerns over child sexual abuse, but that in respect of F.J. the retention of records was not necessary because it concerned offences which were no longer criminal. 

What I find most problematic in this decision is not the ultimate conclusion - that the complaints are inadmissible - but the fact that the Court considers that a complaint relating to police investigations of child sex offences is 'similar' to a complaint relating to police investigations of now repealed male homosexual offences. 

The Court has effectively equated consensual male homosexual sex (once, but no longer, criminalised) with child sexual abuse (which, rightly, continues to be criminalised).

I wonder, do the Judges sitting in the First Section of the Court have any understanding of how damaging such a view is, not least in their own institution where it formed the basis for decades of Convention jurisprudence upholding unequal ages of consent as necessary because of the alleged 'danger' of homosexual men to children?