65th anniversary of first gay rights case under the European Convention on Human Rights

This month marks the 65th anniversary of the first decision taken on a case concerning sexual orientation discrimination brought under the European Convention on Human Rights.

The case originated in an application, lodged with the (now abolished) European Commission of Human Rights, by a man (Mr W.B.) who was in prison in Germany.

Mr W.B. was in prison following his conviction for "homosexual offences".

Mr W.B. submitted his application to the Commission on 10th October 1955 (three months after the Commission become able to receive individual applications in July 1955) and the Commission gave its decision on 17th December 1955.

The Commission declared Mr W.B.'s application inadmissible.

W.B. v The Federal Republic of Germany - the case and the applicant

When Mr W.B. lodged his application with the Commission he was serving a fifteen-month term of imprisonment in Germany for "two cases of homosexuality" contrary to Paragraph 175 of the German Criminal Code. Mr W.B.'s offences were said to have involved "attempted serious homosexuality" contrary to Paragraph 175a of the Criminal Code.

These provisions of the Criminal Code were in force in the form enacted by the National Socialist German Workers’ (Nazi) Party in 1935 and criminalized sexual acts between men. During the Nazi era, these provisions underpinned the arrest and prosecution of tens of thousands of gay men, thousands of which were imprisoned, tortured and murdered in concentration camps. Following the end of Nazi Germany, and the subsequent establishment of the Federal Republic of Germany (West Germany), these provisions remained in force at the time that Mr W.B. was convicted.

What do we know about Mr W.B.?

The only things that we can know about Mr W.B. are from the very brief account provided by the Commission – the extent of which runs to one side of typed A4 paper.

The Commission’s case file will undoubtedly contain more extensive information but all of the Commission’s files are confidential and cannot be accessed. I have been unable to locate domestic records, but I do know that the court records concerning Mr W.B.'s conviction have been destroyed.

We don't know how old Mr W.B. was at the time he was in prison. All we know is that when he made his application to the Commission, Mr W.B. had served thirteen months in prison and, by the time the Commission issued its decision, he would have been just about to reach the end of his sentence.

One thing we can say about Mr W.B. is that he must have had some legal awareness, some knowledge, of the Convention and the Commission. The Commission was newly established, and he took the initiative of submitting a complaint to it. We have no idea why he did this, but we must assume that he became aware of the existence of the Commission and, looking to it as a sort of international court of appeal, tried to use it to challenge both his conviction and his sentence.

We don’t know whether Mr W.B. had legal assistance. Although it later became common for people in prison to write to the Commission without the assistance of a lawyer, in 1955 this was certainly very novel.

What was the nature of Mr W.B.'s offences?

We do not know the exact nature of Mr W.B.'s offences, because no details are given in the Commission's published decision.

The key provision under which Mr W.B. was convicted, Paragraph 175, criminalized “unzucht” between males. The word “unzucht” is difficult to translate because, similar to the word “buggery” in English law, its meaning is fixed to a historical and cultural context. The nearest translation might be “fornication”, but it could also be translated as “lewdness”.

Essentially, what Paragraph 175 enforced was a total prohibition of same-sex sexual acts between men.

Mr W.B. was also convicted under Paragraph 175a which made provision for so-called “serious” cases of fornication or lewdness between males, which fell into four classes: the use of compulsion by one male on another to commit a sex offence; an abuse of dependence (such as in employment) by one male upon another; seduction by a male over 21 of a person under 21; and public displays of sexual acts, including soliciting.

In terms of the “two cases of homosexuality” that Mr W.B. was said to have engaged in, we can assume that he had committed a sexual act with one or more persons. However, we cannot know the precise details of “serious homosexuality” that Mr W.B. was said to have “attempted”.

Mr W.B.'s complaint to the Commission

Mr W.B. complained to the Commission about both his conviction and the legislation under which it was secured. He invoked a wide range of Articles of the Convention (Articles 2, 8, 14, 17, and 18).

The Articles chosen by Mr W.B. show him to be a very creative interpreter of the Convention. The use of Article 2, in particular, is striking because it suggests that Mr W.B. was interpreting the “right to life” in the broadest sense of that term.

Under Article 8, Mr W.B. complained that Paragraphs 175 and 175a infringed the "right to privacy"; under Article 8 taken in conjunction with Article 14, he complained that, to the extent that Paragraphs 175 and 175a were limited to men, this infringed "the principle of sexual non-discrimination".

The Commission's decision

The Commission focused on the complaints made under Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination).

In respect of Article 8, the Commission briefly stated that "the Convention permits a High Contracting Party to legislate to make homosexuality a punishable offence" because "private and family life may be the subject of interference" by the laws "dealing with the protection of health or morals".

In respect of Article 14, the Commission stated that the Convention "does not exclude the possibility of a High Contracting Party differentiating between the sexes in the measures it takes with regard to homosexuality for the protection of health or morals".

On this basis, the Commission declared the application inadmissible, as manifestly ill-founded.

The importance of Mr W.B.'s case

Although the Commission rejected Mr W.B.'s application - thus resulting in a personal failure for him - it did establish something important.

When declaring the application inadmissible, the Commission, under old Article 27 § 2 of the Convention, had the capacity to declare it to be: 

incompatible with the provisions of the Convention, 
manifestly ill-founded, or
an abuse of the right of petition.

In specifying that Mr W.B.'s application was “manifestly ill-founded” the Commission implicitly established the principle that a complaint about the criminalization of homosexual acts was not “incompatible with the provisions of the Convention” (or, indeed, “an abuse of the right of petition”).

This was a success of sorts because, in future, it meant that applicants could be reassured that their complaints about sexual orientation discrimination fell within the ambit of Convention rights and that states had to provide a justification for an inference with the rights in question.

Therefore, although the Commission was prepared to accept that Nazi-formulated law was compatible with the Convention, its rejection of the complaint produced what can be seen as a victory for lesbian and gay human rights because it provided a framework for future complaints.

Mr W.B.'s case established that there were two major battles that had to be waged: first, the Commission had to be persuaded that a person’s right to engage in private, consensual and adult same-sex sexual acts must supersede concerns about public health or social morality; and, second, the Commission had to be persuaded that differentiating between people on the grounds of their sexual orientation, to single them out for criminal regulation, amounted to discrimination contrary to Article 14.

In simple terms, Mr W.B.'s case became the key reference point – it was the case that had to be overturned and defeated in order to establish a human right to engage in same-sex sexual acts. 

Year after year, decade after decade...

The Council of Europe regarded the decision on Mr W.B.'s case as a sign that the Convention was working appropriately. Less than a year after the decision, the Directorate of Human Rights, in an effort to allay "certain fears … that recognition of the right of individual recourse to an international tribunal might lead to abuse", cited it as evidence that

"the European Commission of Human Rights now seems equipped to ensure observance of the fundamental rights and freedoms essential to the satisfactory operation of European democratic regimes, without thereby opening the door to abuses prejudicial to the effectiveness of its work and to the legitimate interests of governments."

But year after year, decade after decade, following Mr W.B.'s case, gay men submitted applications to the Commission complaining about cruel laws that criminalized same-sex sexual acts.

Finally, twenty-six years after the decision on Mr W.B.'s case, the European Court of Human Rights established that the complete criminalization of same-sex sexual acts between men amounted to a violation of Article 8 of the Convention.

Knowing our history, protecting our rights

Understanding the history of the development of LGBT human rights under the Convention is not a dry academic exercise. Rather, it is - in my view - a vital and necessary component of protecting the human rights we enjoy today, and ensuring those rights survive in the future.

The human rights LGBT people enjoy today in Europe arose from struggle and suffering. Real people, like Mr W.B, who were imprisoned for being gay, suffered greatly, and struggled to use the law to change the world they lived in.

The human rights we enjoy today are not guaranteed. We could, at any moment, go back to living in a time like the one Mr W.B. lived in. We need to, therefore, guard our precious rights, and ensure they continue to exist.

One way of doing this is to understand the history of how our rights emerged and developed. Understanding our history equips us with knowledge of what is at stake, and what will happen if we let our rights be diminished.

For a condensed overview of the development of LGBT rights under the Convention, see here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2927098