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‘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, H. and Fenwick, D. (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.

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 State 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.

Item Type:Article
Full text:(AM) Accepted Manuscript
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Status:Peer-reviewed
Publisher Web site:https://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=30791306&recordid=388
Publisher statement:This is a pre-copyedited, author-produced version of an article accepted for publication in European Human Rights Law Review following peer review. The definitive published version Fenwick, H. & Fenwick, D. (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: 247-273 is available online on Westlaw UK or from Thomson Reuters DocDel service.
Date accepted:22 April 2019
Date deposited:19 July 2019
Date of first online publication:2019
Date first made open access:01 July 2020

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