
Sex life, sexual orientation and sexual identity The right to private life under article 8 ECHR embraces a person’s sex life (Stübing v Germany, para 55). Since interferences with the sex life touch upon a particularly intimate part of the life of the affected person, the margin of appreciation accorded to the contracting states in this area is narrow. In addition to the requirement to be based on a law, interferences with the sexual life of a person have to respond to a pressing social need. In a number of resolutions, the Court has scrutinized legislation pertaining homosexuals. In the case Dudgeon v UK, the applicant complained about laws in force in Northern Ireland according to which homosexual acts between consenting adult males constituted a criminal offence. The applicants house had been searched by police for drugs. On this occasion, private correspondence and diaries were confiscated. Since homosexual activities were described in these documents, the applicant was questioned by police about his private and sex life. No charges were brought against the applicant. At this point of time, no proceedings for homosexual acts between adults over the age of 21 had been instituted for several years already. The Court stated that the very existence of legislation sanctioning homosexual acts amounted to an interference with the right to private life, regardless of the fact that in general no proceedings were initiated against consenting adults engaging in homosexual activities. The Court pointed also to the fact that, while as a matter of practices the prosecution discontinued proceedings in such cases, there was no official policy to this effect in place. By the same token, the Court found in Norris v Ireland that the mere existence of criminal laws impugning homosexual acts amounted to an interference with the right to private life. The Court held that the fact that the applicant had, unlike the applicant in Dudgeon v UK, had not been questioned by police of subjected to an investigation, did not render the case distinguishable. It reiterated that the possibility of a criminal prosecution, which held the applicant in constant fear, amounted to an interference with his right to private life. Since the Court was unable to see any reasonable justification for this legislation, it found a violation of article 8 ECHR.
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