Legal Memorandum of the International Human Rights Law Group Submitted to the Romanian Constitutional Court

The International Human Rights Law Group filed this legal memorandum with the Romanian Constitutional Court to support a constitutional challenge to Article 200 of the Romanian Criminal Code. The Code sets a maximum five-year prison sentence for engaging in private, consensual homosexual conduct. Romania is the only member States of the Council of Europe to impose criminal penalties on adults who engage in such conduct. The brief relies on decisions by the European Court under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and cites relevant provisions of international conventions like the International Covenant on Civil and Political Rights. The authors of the brief urge the Romanian court to interpret provisions of the Romanian constitution in light of European and International Human Rights Standards to prohibit the government from prosecuting individuals for engaging in private homosexual conduct. The authors argue that the Romanian court should adopt regional and international law as an interpretive tool even though Romania signed but did not ratify the European Convention. Although this brief does not relate specifically to international women's human rights, it has been included on the Women's Human Rights Resources site for two main reasons. First, the international norms cited are applicable to discrimination faced by women on the basis of sexual orientation. Second, the argument that regional and international conventions should help inform the interpretation of domestic legislation is gaining increasing attention by domestic courts and may help strengthen the movement to secure women's rights through domestic litigation. (for a similar argument in the Canadian context, see factum of the Charter Committee on Poverty Issues in Baker v. The Minister of Citizenship and Immigration and the Supreme Court of Canada decision in Baker)