The EU Court in Luxembourg is raising the bar on LGBT rights

By Sam MacMahon Baldwin, Attorney-at-law (Advokat) at Gorrissen Federspiel

2017 ended with the Strasbourg Court reaffirming the decision from Orlandi and Others v. Italy that Member States must recognize and protect same-sex unions – although the Court did not require recognition of actual same-sex marriage. Now well into the new year, it is the EU Court in Luxembourg that is pursuing LGBT rights and personal dignity. Two cases from January are set to raise the bar for EU Member States. Continue reading

Oliari, Orlandi and Homophobic Dissenting Opinions: The Strasbourg Approach to the recognition of same-sex marriages

By Claire Poppelwell-Scevak, PhD FWO Fellow, Gent University

From first glance, the decision of Orlandi and Others v Italy on 14 December 2017, may appear as a step in the direction of same-sex couples being afforded the protection of Article 12 ECHR – the right to marry. However, when one digs a little deeper into this case, there is only dismay that the Strasbourg Court has continued to reinforce its ‘same same but different’ interpretation of the Convention instead of being at the forefront of this struggle for equality. Continue reading

Same Same But Different: A heterosexual couple denied registered partnership by the ECtHR

By Claire Poppelwell-Scevak, FWO Research Fellow, Human Rights Centre (Ghent University)

On 26 October 2017 the European Court of Human Rights held in Ratzenböck and Seydl v Austria that Austria’s registered partnership law, which is only open to homosexual couples, did not violate the European Convention on Human Rights by denying this registered partnership to a heterosexual couple. The judgment given by the seven member – although there was a two judge dissenting opinion – bench can be seen as a warning to future same-sex marriage proponents that their claims will not be favourably assessed. Continue reading

Bayev and Others v. Russia: on Judge Dedov’s outrageously homophobic dissent

Earlier this week, we published a blog post by Pieter Cannoot and Claire Poppelwell-Scevak on the judgment of Bayev and Others v. Russia in which the Court held that Russia’s so-called gay propaganda law violated the European Convention. In this blog post, I will not further dwell upon the outcome of the case or the reasoning by the majority. However, it is necessary to highlight and protest against the dissenting opinion by Judge Dedov. In his dissent, the Russian judge has crossed a line by making outrageously homophobic statements that are unworthy of a judge at the European Court of Human Rights. Continue reading

ECtHR finds Russia’s gay propaganda law discriminatory in strong-worded judgment

By Pieter Cannoot, PhD researcher, Human Rights Centre (Ghent University) and Claire Poppelwell-Scevak, FWO Research Fellow, Human Rights Centre (Ghent University)

On 20 June 2017, the European Court of Human Rights issued a particularly strong-worded judgment in the case of Bayev and Others v. Russia. The Court not only found Russia’s legislative prohibition of the ‘promotion of homosexuality’ among minors to be a violation of Article 10 and Articles 10 j. 14 ECHR, but also did so in a well-reasoned, straightforward judgment that easily set aside every argument by the Russian Government. The boldness of the judgment for the protection of LGB rights heavily contrasts with the dissenting opinion of Judge Dedov, whose inexcusable assimilation of homosexual persons with child abusers is a black mark on the Strasbourg Court. Continue reading

A.P., Garçon and Nicot v. France: the Court draws a line for trans rights

By Pieter Cannoot, PhD researcher of human rights law (Ghent University)

On 6 April 2017, the European Court of Human Rights significantly strengthened the human rights protection of trans persons, with its long-awaited judgment in the case A.P., Garçon and Nicot v. France. The Court ruled that the condition of compulsory sterilizing surgery or treatment for legal gender recognition violated Article 8 of the Convention. Nevertheless, the judgment also left some questions unanswered. Continue reading

The potential of a vulnerability-based approach: some additional reflections following O.M. v Hungary

Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)

As has recently been noted in this blog, the case of O.M. v Hungary adds another tile to the European Court of Human Rights’ (ECtHR) mosaic on vulnerability. The present blog post seeks to start from these premises and dig further into the Court’s reasoning, to reflect on the extent to which vulnerability can be operationalised and meaningfully used in the legal reasoning and when, instead, it risks to remain confined only to a synonym for specific situations deserving attention.

As the readers of this blog may know, O.M. v Hungary concerned the detention to which a gay asylum seeker from Iran was subject while his asylum request was processed and before being granted refugee status. The detention was ordered because, allegedly, Mr. O.M. had not been able to clarify his identity and nationality; had entered irregularly; had not had any resources to live on in Hungary and there was a risk he could frustrate the procedure if left at large. The applicant claimed before the ECtHR that his detention had been unjustified with respect to Article 5(1)(b) of the European Convention on Human Rights (ECHR) and that no individual assessment had been carried out. Notably, the applicant’s sexual orientation had not been taken into consideration, although Mr. O.M. reported to fear harassment in detention because of this circumstance.

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