Judgment
On 22 October 1981, the Court agreed with the Commission that Northern Ireland's criminalisation of homosexual acts between consenting adults was a violation of Article 8 of the European Convention on Human Rights which says: "Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals". Judgment was given in Dudgeon's favour on that aspect by 15 votes to 4.
It stated the "restriction imposed on Mr. Dudgeon under Northern Ireland law, by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved." However, the ruling continued, "it was for countries to fix for themselves ... any appropriate extension of the age of consent in relation to such conduct."
The Court held by 14 votes to 5 that it was not necessary also to examine the case under Article 14 taken in conjunction with Article 8, which would otherwise have meant considering the aspect of discrimination. It stated that "once it has been held that the restriction on the applicant's right to respect for his private sexual life give rise to a breach of Article 8 by reason of its breadth and absolute character, there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons." Minority opinions were written on both aspects.
Significance
This was the first case at the European Court of Human Rights to be decided in favour of LGBT rights. It was only the thirty-fifth case judged by the Court, and the fifth violation found against the UK. There have been upwards of ten thousand more cases judged at Strasbourg.
As a consequence of the judgment, male homosexual sex was decriminalised in Northern Ireland in October 1982. Female homosexual behaviour was never criminal anywhere in the United Kingdom.
The MPs from Northern Ireland who voted on the proposed decriminalising Order were universally opposed.
In the Article 50 settlement of 24 February 1983, no damages were awarded, the verdict being seen as sufficient reward for the hurt and pain suffered. Costs of £3,315 were awarded towards Dudgeon's legal fees but he was denied the remaining £1,290 because of a view by the Court that his then lawyers were operating on a contingency basis. Three of the five judges who voted against him on the main case and the British judge constituted a majority of the seven judges on the settlement court panel.
A Freedom of Information Request later revealed a note from a Conservative minister from that time, saying, "Put this to one side; Strasbourg will do the needful." This implied that although sympathetic to Dudgeon's case, the UK government preferred using the European Court of Human Rights to change the law in Northern Ireland rather than intervene itself. [2]
The same provision of the 1885 Act was still in force in the Republic of Ireland, and upheld by the Supreme Court of Ireland in 1983. Norris v. Ireland (1988), successfully challenged this in the ECtHR, with Dudgeon serving as the key precedent. This led to decriminalisation in the Republic of Ireland in 1993. It was similarly followed in Modinos v. Cyprus (1993), finding an equivalent law to be a violation.
Dudgeon v. United Kingdom was cited by Justice Anthony Kennedy in Lawrence v. Texas (2003), the US Supreme Court decision which found anti-sodomy laws in 14 remaining states to be unconstitutional.
The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. The court is based in Strasbourg, France.
The Campaign for Homosexual Law Reform was an organisation set up to campaign for the decriminalisation of homosexuality in the Republic of Ireland and Northern Ireland in the 1970s. Its most prominent leader was David Norris, an English studies lecturer in Trinity College Dublin, Joycean scholar and from the 1980s to the present a member of Seanad Éireann.
This is a list of notable events in the history of LGBT rights that took place in the year 1981.
The Supreme Court of Ireland is the highest judicial authority in Ireland. It is a court of final appeal and exercises, in conjunction with the Court of Appeal and the High Court, judicial review over Acts of the Oireachtas. The Supreme Court also has appellate jurisdiction to ensure compliance with the Constitution of Ireland by governmental bodies and private citizens. It sits in the Four Courts in Dublin.
Section 377 of the British colonial penal code criminalized all sexual acts "against the order of nature". The law was used to prosecute people engaging in oral and anal sex along with homosexual activity. As per Supreme Court Judgement since 2018, Indian Penal Code Section 377 is used to convict non-consensual sexual activities among homosexuals with a minimum of ten years imprisonment extended to life imprisonment. It has been used to criminalize third gender people, such as the apwint in Myanmar. In 2018, then British Prime Minister Theresa May acknowledged how the legacies of British colonial anti-sodomy laws continue to persist today in the form of discrimination, violence, and death.
Norris v. Ireland was a case decided by the European Court of Human Rights (ECHR) in 1988, in which David Norris successfully charged that Ireland's criminalisation of certain homosexual acts between consenting adult men was in breach of Article 8 of the European Convention on Human Rights.
Save Ulster from Sodomy was a political campaign launched in 1977 by Ian Paisley, MP, then leader of the Democratic Unionist Party (DUP) and Free Presbyterian Church, to prevent the decriminalisation of homosexuality in Northern Ireland. The campaign was ultimately unsuccessful.
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution – and in particular its explicit prohibition of discrimination based on sexual orientation – the court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
The Homosexual Offences Order 1982, No. 1536, is an Order in Council which decriminalized homosexual acts between consenting adults in Northern Ireland. The Order was adopted as a result of a European Court of Human Rights case, Dudgeon v. United Kingdom (1981), which ruled that Northern Ireland's criminalisation of homosexual acts between consenting adults was a violation of Article 8 of the European Convention on Human Rights.
Section 171 of the Criminal Code of Cyprus was a section of the Cyprus Criminal Code, which was enacted in 1929, that criminalized homosexual acts between consenting male adults. Until 1998, the section read:
"Any person who (a) has carnal knowledge of any person against the order of nature, or (b) permits a male person to have carnal knowledge of him against the order of nature is guilty of a felony and is liable to imprisonment for five years".
Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe.
Article 3 of the European Convention on Human Rights prohibits torture, and "inhuman or degrading treatment or punishment".
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Northern Ireland have traditionally been slower to advance than the rest of the United Kingdom, with the region having lagged behind England, Scotland, and Wales. Northern Ireland was the last part of the United Kingdom where same-sex sexual activity was decriminalised, the last to implement a blood donation “monogamous no waiting period” policy system for men who have sex with men and, after intervention by the Parliament of the United Kingdom, the last to allow same-sex marriage. Compared to the neighbouring Republic of Ireland, all major LGBT rights milestones had been reached earlier in Northern Ireland, with the exception of same-sex marriage. Homosexuality was decriminalised in Northern Ireland a decade earlier and civil partnerships were introduced six years earlier.
Lesbian, gay, bisexual, and transgender (LGBT) persons in TRNC (Turkish Republic of Northern Cyprus) face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal in Northern Cyprus since 7 February 2014. Previous laws allowed three years prison sentences, according to Articles 171 and 173 of its criminal code. Female homosexuality was not criminalised. Arrests for homosexuality have occurred as recently as 2011.
Naz Foundation v. Govt. of NCT of Delhi (2009) is a landmark Indian case decided by a two-judge bench of the Delhi High Court, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India's Constitution. The verdict resulted in the decriminalization of homosexual acts involving consenting adults throughout India. This was later overturned by the Supreme Court of India in Suresh Kumar Koushal vs. Naz Foundation, in which a 2 judge bench reinstated Section 377 of the Indian Penal Code. However, even that was overturned by a 5 judge bench in Navtej Singh Johar v. Union of India in 2018, decriminalizing homosexuality once again.
Norris v. The Attorney General is a 1983 judgement from the Supreme Court of Ireland that held that the law which criminalised homosexuality was not against the Constitution of Ireland. David Norris was subsequently successful in the European Court of Human Rights, where in Norris v. Ireland (1988) they found that the law was in breach of Article 8 of the European Convention on Human Rights.
X and Others v. Austria, Application No. 19010/07, was a human rights case that was decided in 2013 by the European Court of Human Rights (ECtHR). The case concerned whether the Government of Austria had discriminated against Austrian citizens who were in same-sex relationships because the wording of the Austrian Civil Code did not permit unmarried same-sex couples access to legally granted second-parent adoptions, whereas it was available to unmarried heterosexual couples.
Navtej Singh Johar &Ors. v. Union of India thr. Secretary Ministry of Law and Justice (2018) is a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults, including homosexual sex.
Bayev and Others v. Russia was a case brought to the European Court of Human Rights by three Russian activists—Nikolay Bayev, Aleksei Aleksandrovich Kiselev, and Nikolay Alekseyev—alleging that the Russian gay propaganda law infringed on their freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. On 20 June 2017, the court ruled that the applicants' freedom of expression had been compromised. The only dissent was from Dmitry Dedov, the judge elected with respect to Russia.
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