Sexuality and Human Rights by Unknown

Author:Unknown
Language: eng
Format: epub
ISBN: 9781134732715
Publisher: Taylor & Francis Group

The Curse of Inconsistency

The protection the Court affords to sexual rights is considerably impaired by inconsistency in the Court’s case law. Leading cases and constant case law are often ignored by the three-judges-committees ruling on a limine inadmissibility of an application.145

Such a Committee in May 2000 a limine rejected the application of a lesbian and gay association which was denied registration on the basis that it did not exclude persons under 18 years of age from membership, while for heterosexual associations no such restriction was established. The Court denied examination of the application on the basis that the restriction was prescribed by law, pursued the legitimate aim of the protection of morals and the rights and freedoms of others and was proportionate to the aims pursued.146 No more reasoning was provided despite the fact that the Commission three years before had found no justification for a minimum age limit of 18 for homosexual acts as opposed to 16 years for heterosexual acts.147 And this was despite the fact that the Court itself at that time had already found that discrimination on the basis of sexual orientation is unacceptable148 and as serious as discrimination on the basis of race, colour, religion and sex,149 and that predisposed bias on the part of a heterosexual majority against a homosexual minority cannot amount to sufficient justification for the interferences with the rights of homo- and bisexual women and men, any more than similar negative attitudes towards those of a different race, origin or colour.150 Shortly afterwards the Court declared admissible three complaints against a minimum age limit of 18 for homosexual acts as opposed to 14 years for heterosexual acts,151 found a violation152 and awarded an adolescent a considerable amount of compensation for having been prevented, between the ages of 14 and 18, from entering into relations corresponding to his disposition for homosexual contact with older, adult men.153

In 2002 a Committee a limine rejected the application of a 16-year-old gay adolescent, who was diagnosed as sustaining a contusion of the head after he refused to name his sex partners during hours of interrogation by police detectives on the basis of an anti-homosexual criminal law.154 The fact that the detention of the juvenile had been decided by a police official was also no problem for the Committee. According to the case law of the Court a human rights violation is established if someone incurs injuries while with the (police) authority, unless the authority provides a plausible different explanation for the injuries.155 In addition the Court requires independent inquiries into such allegations and considers a lack of such independent inquiries to be a violation of the Convention as well.156 The applicant proved that the contusion was sustained during his stay at the police department. Nevertheless the Committee decided not to deal with the application, merely stating that it did not find “any appearance” of a violation of the Convention.157

Also in 2002 a Committee a limine rejected the case of a gay man who had proven his innocence regarding an anti-homosexual age of consent offence.

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