‘Finding ‘East’/’West’ divisions in Council of Europe states on treatment of sexual minorities : the response of the Strasbourg Court and the role of consensus analysis

Fenwick, Helen and Fenwick, Daniel (2019) ‘Finding ‘East’/’West’ divisions in Council of Europe states on treatment of sexual minorities : the response of the Strasbourg Court and the role of consensus analysis. European Human Rights Law Review (3). pp. 247-273. ISSN 1361-1526

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Abstract

Manifestations of prejudice against sexual minorities are currently especially resurgent in certain "Eastern" Council of Europe Member States. This article argues that the current approach at the Strasbourg Court in this context shows tensions between two conflicting demands: it is seeking both to protect sexual minorities, but also its own authority, by relying on the consensus doctrine to avoid determinations likely to lead to open conflict with such states. In respect of homophobic hate crimes and bans on public manifestations of support for sexual minorities, the Court has shown a robust determination to provide protection for such minorities, partly on the basis that there is no consensus among the Member States supporting such practices. But, in strong contrast, in the context of formalisations of same-sex relationships, there are signs that "East"/"West" divisions are having some inhibitory impact on its judgments, accommodated mainly via consensus analysis. This article therefore considers ways of reconciling the two apparently conflicting aims of the Court identified.

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