Homosexuality [ECHR]

UK & Irish Cases

In Dudgeon V UK and Norris v Ireland, Victorian legislation criminalising homosexual conduct regardless of consent between persons of full age in Northern Ireland and the Republic of Ireland respectively was found to breach Article 8. The maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for his family private life (which included his sexual life) within the meaning of Article 8.

In the personal circumstances of the applicant, the very existence of legislation continuously and directly affected his private life. Either he respected the law and refrained from engaging even in private with consenting male partners in prohibited sexual acts… or he becomes liable to prosecution. It was not accepted that the legislation was necessary in a democratic society for the protection of morals and the freedom and rights of others. This was despite Northern Ireland being a more conservative society than Great Britain which had removed the legislation some 20 years earlier.

Smith & Grady v UK considered discharge from the word Navy on the grounds of the applicant’s sexuality. There was a departmental policy to exclude homosexuals which breached Article 8 because it was not necessary in a democratic society.

In Sutherland v UK differing ages of consent for homosexuals and heterosexuals (18 and 16) violated Article 8 in conjunction with Article 14 (equality).

Decriminalisation I

Dudgeon v. the United Kingdom The legislation then in force in Northern Ireland classified homosexual relations between males as a criminal offence. The applicant, who was a homosexual, complained that he experienced feelings of fear, suffering and psychological distress as a result of the very existence of the laws at issue, including fear of harassment and blackmail. He also complained that he had been subjected to an investigation into certain homosexual activities.

The European Court of Human Rights held that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights. It found that the restriction imposed on the applicant, by reason of its breadth and absolute character, had been, quite apart from the severity of the possible penalties, disproportionate to the aims sought to be achieved, namely the protection “of the rights and freedoms of others” and “of morals”.

Norris v. Ireland The legislation then in force in Ireland classified male homosexual relations as a criminal offence. The applicant, who was a homosexual, complained about this legislation, which in his view entailed an excessive interference with his right to respect for his private life – including his sexual relationships.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found that it could not be maintained that in Ireland there was a “pressing social need” to make homosexual acts criminal offences. In particular, although members of the public who regarded homosexuality as immoral might be shocked, offended or disturbed by such acts, this could not on its own warrant the application of penal sanctions when consenting adults alone were involved.

Decriminalisation II

Modinos v. Cyprus The applicant was a homosexual in a relationship with another male adult. He was the President of the “Liberation Movement of Homosexuals in Cyprus”. He stated that he had suffered great strain, apprehension and fear of prosecution by reason of the legal provisions which criminalised certain homosexual acts.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found that the existence of this legislation continuously and directly affected the applicant’s private life.

A.D.T. v. the United Kingdom The applicant mainly argued that his prosecution and conviction for participating, in private and in his own home, in sexual acts with more than one consenting adult of the male sex, constituted interference with his private life.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. In its view, the acts in question were purely private in nature and so the respondent State’s margin of appreciation was narrow. There was no “pressing social need” to justify the legislation in question or its application in the proceedings against the applicant.

Discrimination in Criminalisation

L. and V. and S.L. v. Austria The applicants were convicted for having homosexual intercourse with young males of 14 to 18. Austrian legislation classified as a criminal offence homosexual acts of adult men with young males between 14 and 18, but not with young females in the same age bracket.The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private life). It found no sufficient justification for the difference in treatment complained of.
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B.B. v. the United Kingdom  The applicant was prosecuted for having sexual intercourse with an adolescent of 16. The legislation in force at the time (1998-1999) made it a criminal offence to engage in homosexual activities with men under 18 years of age, while the age of consent for heterosexual relations was 16.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private life) of the Convention.

Santos Couto v. Portugal 2010 The applicant argued that his conviction for homosexual activities with adolescents had been discriminatory as it had been based on his sexual orientation. The Court held that there had been no violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private life) of the Convention. There had been no difference in treatment of the applicant in comparison with other persons in an analogous or relevantly similar situation and, thus, no discriminatory treatment.

Homophobic Violence

Stoyanova v. Bulgaria concerned the homophobic murder of the applicant’s 26-year-old son. His attackers, secondary-school students, had singled him out for assault because they had thought he looked like a homosexual. The attackers had been found guilty of aggravated murder, but had been given sentences which were below the statutory minimum after the courts took into account mitigating factors such as their young age and clean criminal records.The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 2 (right to life) of the Convention, finding that, despite the clearly established finding that the reason behind the attack on the applicant’s son had been the perpetrators’ hatred for homosexuals, there had not been any tangible legal consequences in the Bulgarian courts.

Identoba and Others v. Georgia 2015  concerned a peaceful demonstration organised by a non-governmental organisation (NGO) – the first applicant – in Tbilisi in May 2012 to mark the International Day against Homophobia, which was violently disrupted by counter-demonstrators outnumbering the marchers. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) taken in conjunction with Article 14 (prohibition of discrimination) of the Convention with respect to the 13 applicants who had participated in the march. Moreover, the authorities, who knew or ought to have known of the risks surrounding the demonstration, had therefore been under an obligation – but had failed – to provide adequate protection. Lastly, noting that Georgian criminal law provided that discrimination on the grounds of sexual orientation and gender identity should be treated as an aggravating circumstance in the commission of an offence.

Aghdgomelashvili and Japaridze v. Georgia concerned a police raid on the office of a lesbian, gay, bisexual and transgender organisation in Tbilisi. The applicants, who worked at the organisation, complained that the police had insulted and threatened them, and put them through humiliating strip-searches. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention under its substantive limb taken in conjunction with Article 14 (prohibition of discrimination). Of particular concern for the Court was the fact that neither the police nor the Georgian Government had given reasons for the strip-searches, leading it to conclude that their sole purpose had been to embarrass and punish the applicants for their association with the LGBT community.

Sabalić v. Croatia The applicant, who had been attacked in a bar by a man to whom she had disclosed her homosexual orientation, complained in particular of the lack of an appropriate procedural response of the domestic authorities to an act of violence by a private party motivated by her sexual orientation.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 14 (prohibition of discrimination) of the Convention. It found in particular that the minor-offence proceedings against the applicant’s aggressor had not addressed the hate-crime element of the offence and had resulted in a derisory fine

Risk Return to State of Origin

M.K.N. v. Sweden The applicant complained that he had had to leave Mosul (Iraq) because he was being persecuted on account of his Christian beliefs. He further alleged that, if returned to Iraq, he would be at risk of persecution for having had a homosexual relationship, the Mujahedin having already killed his partner.The Court held that the implementation of the deportation order against the applicant would not give rise to a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It found that, if removed to Iraq, the applicant would not be at risk as a result of the general situation in the country which was slowly improving. Furthermore, although there was evidence to show that his belonging to a vulnerable

M.E. v. Sweden The applicant, an asylum seeker, submitted in particular that, if he were forced to return to Libya to apply for family reunion from there, he would be at real risk of persecution and ill-treatment, primarily because of his homosexuality but also due to previous problems with the Libyan military authorities following his arrest for smuggling illegal weapons. The Court considered that the potential violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention had now been removed and that the case had thus been resolved at national level.

Civil Unions

Chapin and Charpentier v. France concerned the marriage of two men conducted by the mayor of Bègles (Gironde) and subsequently declared null and void by the courts. The applicants submitted that limiting marriage to opposite-sex couples amounted to a discriminatory infringement of the right to marry. The Court held that there had been no violation of Article 12 (right to marriage) in conjunction with Article 14 (prohibition of discrimination) and no violation of Article 8 (right to respect for private and family life) in conjunction with Article 14 of the Convention.

Oliari and Others v. Italy  concerned the complaint by three homosexual couples that under Italian legislation they do not have the possibility to get married or enter into any other type of civil union.The Court held that there had been a violation of Article 8 (right to respect forrivate and family life) of the Convention. It considered that the legal protection available to same-sex couples in Italy – as was shown by the applicants’ situation – did not only fail to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable.

Ratzenböck and Seydl v. Austria concerned the complaint by a heterosexual couple about being denied access to a registered partnership, a legal institution only available to same-sex couples. The applicants maintained that they were discriminated against based on their sex and sexual orientation.
The Court held that there had been no violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the Convention. It found in particular that there were no more substantial differences between marriage and registered partnership in Austria.

Orlandi and Others v. Italy  2017 e concerned a complaint by six same-sex couples that they had been unable to have their marriages, which they had contracted abroad, registered or recognised in any form as a union in Italy. They alleged, among other things, discrimination on the grounds of their sexuality.The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the State had failed to strike a fair balance between the competing interests and that there had been a violation of the couples’ rights.

Fedotova and Others v. Russia 2023 (Grand Chamber) This case concerned the complaint by three same-sex couples that it was impossible for them to have their relationships as couples recognised and protected by law in Russia. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the respondent State had overstepped its margin of appreciation and had failed to comply with its positive obligation to secure the applicants’ right to respect for their private and family life.

Blood Donation

Drelon v. France concerned, first, the collection and retention, by the French blood donation service (EFS) of personal data reflecting the applicant’s presumed sexual orientation – together with the rejection of his criminal complaint for discrimination – and, second, the refusal of his offers to donate blood, together with the dismissal by the Conseil d’État of his judicial review application challenging an order of 5 April 2016 which amended the selection criteria for blood donors.

The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention on account of the collection and retention of the personal data concerned. Addressing the first application, it considered that the collection and retention of sensitive personal data constituted an interference with the applicant’s right to respect for his private life. That interference had a foreseeable legal basis as the authorities’ discretionary power to set up a health database for such purpose was sufficiently regulated by the then applicable Law of 6 January 1978.

Gestational Surrogacy

D.B. and Others v. Switzerland concerned a same-sex couple who were registered partners and had entered into a gestational surrogacy contract in the United States under which the third applicant had been born. The applicants complained in particular that the Swiss authorities had refused to recognise the parent child relationship established by a US court between the intended father (the first applicant) and the child born through surrogacy (the third applicant).

The Swiss authorities had recognised the parent child relationship between the genetic father (the second applicant) and the child. The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention in respect of the applicant child and no violation of Article 8 (right to respect for family life) in respect of the intended father and the genetic father

Offensive Comments

Beizaras and Levickas v. LithuaniaThe applicants, two young men who were in a relationship, alleged that they had been discriminated against on the grounds of sexual orientation because of the authorities’ refusal to launch a pre-trial investigation into the hate comments on the Facebook page of one of them. The latter had posted a photograph of them kissing on his Facebook page, which led to hundreds of online hate comments.

The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private life) of the Convention, finding that the applicants had suffered discrimination on the grounds of their sexual orientation and that the Lithuanian Government had not provided any justification showing that the difference in treatment had been compatible with the standards of the Convention. It noted in particular that the applicants’ sexual orientation had played a role in the way they had been treated by the authorities, which had quite clearly expressed disapproval of them so publicly demonstrating their homosexuality when refusing to launch a pre-trial investigation.

Association ACCEPT and Others v. Romania  concerned the interruption of an LGBT (lesbian, gay, bisexual, and transgender) rights film screening by a group shouting homophobic abuse and the domestic authorities’ alleged failure to protect the applicants – an LGBT rights non- governmental organisation and five private individuals who had attended the screening – from homophobic verbal abuse and threats and to conduct a subsequent effective investigation into the applicants’ complaint.

The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 8 (right to respect for private and family life) in respect of the individual applicants, finding that the Romanian authorities had failed to discharge their positive obligation to investigate in an effective manner whether the verbal abuse directed towards the individual applicants constituted a criminal offence motivated by homophobia.

Valaitis v. Lithuania In January 2018 the applicant published an essay on the Internet portal of a major daily newspaper, lrytas.lt, mentioning a finalist of the televised singing competition The Voice, who had publicly come out as homosexual. Twenty-one comments were posted in reply, insulting both the applicant and homosexuals, going so far as to suggest that homosexuals should be burnt in Auschwitz. The Court held that there had been no violation of Article 13 (right to an effective remedy) of the Convention in respect of the applicant. It noted in particular that the reopening of the investigation in the present case, following its judgment in the case Beizaras and Levickas v. Lithuania (see above), had demonstrated a clear and positive shift in the State authorities’ attitude towards the prosecution of hate crimes, who had drawn the necessary conclusions from that judgment.

Parental authority Child custody and Access Rights

Honner v. France case concerned the refusal to award contact rights to the applicant in respect of the child which had been born to her former partner in Belgium using assisted reproductive techniques while the two women were a couple, despite the fact that the applicant had raised the child during his early years. The Court held that there had been no violation of Article 8 (right to respect for family life) of the Convention, finding, in particular, that by rejecting the applicant’srequest on grounds of the child’s best interests and by duly giving reasons for the decision, the French authorities had not failed to fulfil their positive obligation to guarantee effective respect for the applicant’s right to respect for her family life.

X. v. Poland case concerned proceedings the applicant had brought to contest the removal of her youngest child from her custody after her former husband had obtained a change in the custody arrangements ordered in the divorce judgment. The applicant submitted that the courts had acted in his favour because of her relationship with another woman. The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. It found, in particular, that the applicant’s sexual orientation and relationship with another woman had been consistently at the centre of deliberations and present at every stage of the judicial proceedings.

Callamand v. France concerned the rejection of the applicant’s request for contact rights with her former spouse’s child, who had been conceived by medically assisted procreation. The applicant submitted that the rejection of her request had breached her right to respect for her private and family life. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in present case. Having noted, in particular, the existence of genuine personal links between the applicant and the child, which were protected by Article 8 of the Convention, the Court observed that the applicant had not sought the establishment of kinship or shared parental authority, but merely the possibility of continuing, occasionally, to see a child in respect of whom she had acted as a joint parent for more than two years since his birth.

Residence permit

Pajić v. Croatia case concerned the complaint by a national of Bosnia and Herzegovina, who is in a stable same-sex relationship with a woman living in Croatia, of having been discriminated against on the grounds of her sexual orientation when applying for a residence permit in Croatia.The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the Convention. It found in particular that the applicant had been affected by a difference in treatment between different-sex couples and same-sex couples introduced by the Aliens Act, which reserved the possibility of applying for a residence permit for family reunification to different-sex couples.

Taddeucci and McCall v. Italy concerned the inability of the applicants, a gay couple one of whom is an Italian and the other a New Zealand national, to live together in Italy on account of the Italian authorities’ refusal to issue the second applicant with a residence permit on family grounds because the national immigration legislation did not allow unmarried partners to obtain a family member’s residence permit.

The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the Convention, finding that the refusal to grant a residence permit to the applicants on family grounds was an unjustified discrimination. The Court found in particular that the situation of the applicants, a gay couple, could not be understood as comparable to that of an unmarried heterosexual couple…

The Court therefore concluded that, in deciding to treat homosexual couples in the same way as heterosexual couples without any spousal status, Italy had breached the applicants’ right not to be subjected to discrimination based on sexual orientation in the enjoyment of their rights under Article 8 of the Convention.

Social protection

Aldeguer Tomás v. Spain case concerned the applicant’s complaint of having been discriminated against on the ground of his sexual orientation in that he was denied a survivor’s pension following the death of his partner, with whom he had lived in a de facto marital relationship. The applicant had been unable to marry his partner under the law in force during the latter’s lifetime. Three years after his partner’s death, the law legalising same-sex marriage in Spain entered into force.

The Court held that there had been no violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the Convention and Article 1 (protection of property) of Protocol No. 1 to the Convention, finding that there had been no discrimination in the applicant’s case.

Succession to a Tenancy

Kozak v. Poland 2010 Following the death of his homosexual partner, the applicant instituted proceedings against the municipality claiming to be entitled to succeed to the tenancy of the council flat, which was in his partner’s name. The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for home) of the Convention. Despite the importance of the legitimate aim pursued in the applicant’s case, namely that of protecting traditional families, in its choice of means to protect that aim the State had to take into account developments and changes in society, including the fact that there was not just one way or one choice in the sphere of leading and living one’s family and private life.

Freedom of Expression

Mladina D.D. Ljubljana v. Slovenia  2014 This case concerned the applicant publisher’s complaint that it was ordered by the national courts to pay damages to a parliamentarian for insulting him in an article concerning a parliamentary debate on the legal recognition of same-sex relationships. The applicant complained, in particular, that the national courts had been unwilling to expose harmful, homophobic stereotypes and had not taken into consideration that the exaggerated, satirical style of the article was a reaction to the parliamentarian’s own controversial behaviour.

The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It pointed out that the limits of acceptable criticism were wider as regards a politician, especially when he himself had made controversial public statements, than as regards a private individual. Both the context in which the publisher’s article had been written (an intense political debate) and the style used (matching the parliamentarian’s own provocative comments and behavior) had not been given sufficient consideration by the national courts.

Kaos Gl v. Turkeyconcerned the seizure of all the copies of an issue of a magazine published by a cultural research and solidarity association for gays and lesbians. The applicant association complained in particular of the seizure in question and the criminal proceedings brought against the president of the association and editor-in-chief of the magazine.The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that the ground of protecting public morals relied upon by the authorities had been insufficient to justify the seizure order and the confiscation of all the copies of the issue of the magazine in question for more than five years.

Bayev and Others v. Russia concerned a complaint brought by three gay rights activists about legislation in Russia banning the promotion of homosexuality, also known as the “gay propaganda law” (in a series of legislative acts – most recently in 2013 – “promoting non-traditional sexual relationships” among minors was made an offence punishable by a fine). The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention and a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 10. It found in particular that, although the laws in question aimed primarily at protecting minors, the limits of those laws had not been clearly defined and their application had been arbitrary.

Lee v. the United Kingdom This case concerned the refusal by a Christian-run bakery to make a cake with the words “Support Gay Marriage” and the QueerSpace logo on it which the applicant The Court declared the application inadmissible for non-exhaustion of domestic remedies. It noted in particular that the applicant had not invoked his Convention rights at any point in the domestic proceedings. By relying solely on domestic law, the applicant had deprived the domestic courts of the opportunity to address any Convention issues raised, instead asking the Court to usurp the role of the domestic courts.

Macatė v. LithuaniaThe applicant was an openly lesbian children’s author. The case concerned a children’s book of fairy tales that she had written containing storylines about same-sex marriage. The Grand Chamber held that there had been a violation of Article 10 (freedom of expression) of the Convention. It noted in particular that the measures against the applicant’s book had intended to limit children’s access to information depicting same-sex relationships as essentially equivalent to different-sex relationships.