The Case Law of the European Court of Human Rights

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The Case Law of the European Court of Human Rights. Helmut Graupner. Sexual Introduction. Distinguishing Rights and Personalities: Sexual Minorities in the Balkans Universal Scholastic Gathering Belgrade, May 27-30, 2011. www.graupner.at. www.graupner.at.

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The Case Law of the European Court of Human Rights Helmut Graupner Sexual Orientation Identifying Rights and Identities: Sexual Minorities in the Balkans International Academic Conference Belgrade, May 27-30, 2011 www.graupner.at

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www.graupner.at 1787 Repeal of Death Penalty for same-sex contacts in the Austrian Empire as the primary state in the world (substituted by up to 3 months constrained work) 1789 Decriminalization of same-sex contacts in France as the main state on the planet

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www.graupner.at Europe

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www.graupner.at I. European Court of Human Rights: Very embodiment of the tradition is regard for human pride and flexibility Notion of individual self-rule is an imperative guideline hidden the translation of the privilege to regard for private life Sexuality and sexual life are at the center of the basic appropriate to assurance of private life. State mediation meddles with this privilege; and such obstructions are supported just if obviously important to turn away harm from others ( squeezing social need, proportionality )

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www.graupner.at Attitudes and good feelings of a lion's share can't legitimize impedances into the privilege to private life (or into other human rights) Incompatible with the hidden estimations of the Convention if the activity of Convention rights by a minority gathering were made restrictive on its being acknowledged by the larger part (Dudgeon versus UK 1981, Norris versus Ireland 1988, Modinos versus Cyprus 1993, Laskey, Brown & Jaggard versus UK 1997, Lustig-Prean & Beckett versus UK 1999; Smith & Grady versus UK 1999; A.D.T. versus UK 2000, Christine Goodwin versus UK 2002, I. versus UK 2002, Fretté versus France 2002, L. & V. v. Austria 2003, S.L. v. Austria 2003, Alekseyev versus RUS 2010)

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www.graupner.at Discrimination on the premise of sexual introduction is unsatisfactory is as genuine as segregation on the ground of race, ethnic inception, religion and sex separation requires especially genuine (persuading and profound) reasons edge of thankfulness is thin refinements must be fundamental ( not just appropriate) to understand an authentic point qualifications exclusively on the premise of sexual introduction - > separation (Lustig-Prean & Beckett versus UK 1999; Smith & Grady versus UK 1999; Salgueiro da Silva Mouta versus Portugal 1999; L. & V. v. Austria 2003, S.L. v. Austria 2003, E.B. versus France 2008, Kozak versus POL 2010, Schalk & Kopf versus A 2010, P.B. & J.S. versus A 2010, J.M. versus UK 2010, Alekseyev versus RUS 2010)

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www.graupner.at not simply contrary rights to opportunity from state mediation additionally constructive rights to (dynamic) security of these rights in connection to the state and also in connection to different people commitment of the state to act if there should be an occurrence of obstruction with the privilege to self-awareness and the privilege to build up and keep up relations with other individuals (Zehnalová & Zehnal versus CZ 2002 )

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www.graupner.at Criminal Law: (a) Total Bans abuse Art. 8 ECHR Dudgeon versus UK 1981, Norris versus Ireland 1988, Modinos versus Cyprus 1993 same: UN-Human-Rights-Committee, Toonen versus Australia 1994 (b) Bans of (homo)sexual contacts between more than two people damage Art. 8 ECHR A.D.T. versus UK 2000 (c) Higher time of assent abuses Art. 8 and 14 ECHR L. & V. versus Austria 2003, S.L. versus Austria 2003, BB versus UK 2004; Woditschka & Wilfling versus Austria 2004, F. L. versus Austria 2005; Thomas Wolfmeyer versus Austria 2005; H.G. & G.B. versus Austria 2005; R.H. versus Austria 2006

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www.graupner.at (d) Repeal of higher time of assent is insufficient: Victims must be restored and adjusted, likewise if absolved L. & V. versus Austria 2003, S.L. versus Austria 2003, Woditschka & Wilfling versus Austria 2004, F. L. versus Austria 2005; Thomas Wolfmeyer versus Austria 2005; H.G. & G.B. versus Austria 2005; R.H. versus Austria 2006 S. L. versus An: EUR 5.000,- - remuneration (in addition to expenses and costs) to a juvenile, who (in the vicinity of 14 and 18) was banned from going into self-decided sexual relations with grown-up men (e) Ban of (gay person) smut among grown-ups and without undesirable showdown of others S. versus CH 1992 (EComHR)

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www.graupner.at Employment: Inquiries into sexual introduction and rejection on the premise of homosexuality abuse Art. 8 ECHR (also in the military) Lustig-Prean & Beckett versus UK 1999, Smith & Grady versus UK 1999, Perkins and R v UK 2002 ; Beck, Copp and Bazzeley v UK 2002

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www.graupner.at Right to Assembly: Ban of Gay-Pride-Parades abuses Art. 11 ECHR any measures meddling with the flexibility of gathering and expression other than in instances of actuation to viciousness or dismissal of fair standards do an insult to vote based system and frequently significantly jeopardize it however stunning and inadmissible certain perspectives or words utilized may appear to the experts giving substantive rights on gay person people is in a general sense not quite the same as perceiving their entitlement to crusade for such rights (Baczkowski versus PL 2007, Alekseyev versus RUS 2010)

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www.graupner.at Partnerships: Disadvantageous treatment of same-sex couples versus inverse sex couples requires especially genuine reasons and should be important to accomplish a legitimitate point (Art. 14 ECRK) Karner versus Austria 2003; Kozak versus PL 2010; P.B. & J.S. versus A 2010, J.M. versus UK 2010 same: UN-Human-Rights-Committee, Young versus Australia 2003; X. versus Colombia 2007 Constitutional Court of Montenegro: pending case (Janm 2011) on Art. 12 Family Law characterizing customary law unions as "a union of man and lady" Parenting: Disadvantageous identifying with sexual introduction in basic leadership disregards Art. 14 ECHR Salgueiro da Silva Mouta versus Portugal 1999 Ban of single-selection disregards Art. 14 ECHR - E.B. versus France 2008

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www.graupner.at Marriage: Art. 12 EMRK awards the privilege to wed an accomplice of the same natural sex (post-agent transsexual with an individual from his/her previous sex) real social changes in the establishment of marriage since the reception of the Convention emotional changes achieved by advancements in solution and science dismisses as counterfeit the contention that post-agent transsexuals had not been denied of the privilege to wed since they stayed ready to wed a man of their previous inverse sex

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www.graupner.at the candidate lived as a lady and would just wish to wed a man however had no plausibility of doing as such and could along these lines guarantee that the very embodiment of her entitlement to wed had been encroached the powerlessness of any couple to imagine or be a parent to a tyke can't be viewed in essence as expelling their entitlement to wed . Article 9 of the Charter of Fundamental Rights of the European Union leaves, most likely purposely, from the wording of Article 12 of the Convention in evacuating the reference to men and ladies . ( Goodwin versus UK 2001 , I. versus UK 2001)

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www.graupner.at Schalk & Kopf versus A (2010) ECtHR still hesistant to completely apply this line of contention additionally in marriage instances of (completely) same-sex accomplices living together same-sex couple - > 'family life' ("similarly as the relationship of an alternate sex couple") (affirmed in P.B. & J.S. versus A 2010) the privilege to wed revered in Art. 12 of the Convention is material to same-sex couples But: then just 6 out of 47 Convention States had permitted same-sex-marriage -> "as matters stand", same-marriage not (yet) some portion of the very quintessence of the privilege to wed (Art. 12) -> part states may restrict marriage by same-sex couples (under standard. 2 of Art. 12).

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www.graupner.at 4:3 greater part no infringement in presentation of enlisted association for same-sex couples as late as 1 January 2010 Dissenting minority of three judges: - the disappointment (preceding 2010) to give no less than a marriage-practically identical foundation giving formal legitimate acknowledgment of same-sex organizations disregarded Art. 8, 14 ECHR.

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www. graupner .at

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