3.1.1 W.B. v. Federal Republic of Germany 1955

W.B. v. Federal Republic of Germany concerned paragraph 175 of the German Criminal Code of 1871, which criminalized ‘unnatural fornication’ and its attempt. It was amended by the Nazi regime in 1935 ^{Footnote 66} to cover all ‘lewd acts’ between men, both in private and in public. The applicant complained under Articles 2, 8, 17, and 18 that the German Penal Code not only violated the Convention in principle, but also in person by its reach to limit the applicant’s right to private life, rendering his conviction for lewd acts between men and aggravated attempt of homosexuality in breach of the Convention. The applicant complained about the scope of the criminal code, which limited criminalization to men only and as so was in breach of Article 8 taken in conjunction with Article14, namely the principle of non-discrimination on account of sex.

The Commission understood the homosexual as a criminal by establishing that homosexuality fell within the scope of Article 8, simultaneously permitting states to treat homosexuality through criminal law, declaring that difference in treatment under Article 14 on account of sex does not preclude the ability of the state to make a distinction between sexgenders while taking measures in regard to homosexuality for the protection of health and morals. ^{Footnote 67}

BinaryTech was in motion in the Commission decision to consider criminalization and punishment of homosexual acts and their attempts permissible under the Convention. The formula behind the decision is m/f ^ h/nh = h>nh ^ f ^nh >m ^nh as the Court refused to consider why neither lewd acts nor their attempt were criminalized between females, f ^nh was invisible, while m ^nh was seen as a threat to society, and the criminal subject was seen as being rationally capable of refraining from lewd acts, without considering the traditional ultima ratio doctrine of criminal law. ^{Footnote 68}

The Strasbourg human emerged through this specific intra-action of the Convention law, the Commission, societal discourses of homosexuality as criminal, public space, and the applicant. BinaryTech was in motion enabling and constraining the possibilities of ‘the human’ to emerge as a sexed and sexually binary phenomenon. Discourses on heterosexuality, the separation of male non-heterosexuals’ material bodies from each other and from public space, the permissibility of incarcerating some m ^nh , the law, and binary thinking were the material and discursive stabilized agencies (agential cuts) that produced the Strasbourg human as heterosexual. Non-heterosexuality was seen as a choice of the abnormal, thus illegal and illegitimate, and as such foundational for continued justification for criminalization of m ^nh bodies and removing m ^nh from public space. Alternatively, if the discourse of non-heterosexuality being a choice had become part of the Strasbourg human phenomenon, it would have rendered it impossible to prove mens rea in cases considering homosexual acts criminal. The incarceration of non-heterosexual male bodies was found permissible in order to protect societies and public spaces. The discourses of non-criminal heterosexuality and female non-heterosexuality became part of the Strasbourg human, while finding it permissible to keep m ^nh bodies sexually apart and away from public spaces. The differential boundary between h/nh was drawn as the Strasbourg human mattered as a heterosexual male whose body was allowed in public spaces.

3.1.2 X v. The Federal Republic of Germany

In X v. The Federal Republic of Germany ^{Footnote 69} the applicant contested his criminal conviction on the basis that the laws in force were by virtue contrary to the Convention. He submitted that the German Criminal Code 175/1 amended in 1969 only targeted men committing ‘an indecent assault (Unzucht) on a man under the age of 21’; other types of consensual homosexual relations were not criminalized. Furthermore, the applicant complained under Article 14, stating discrimination on account of sex because only male homosexuality constituted a crime under certain circumstances.

The parties were asked to respond to the following question:

The government observed that the punishment of homosexual relationships with adolescents contained a difference of treatment based on sex, but it was found permissible because similar deterrence was not deemed necessary to provide special protection for girls.

The applicant maintained that the aforementioned distinction was based on inadequate scientific knowledge of the two forms of homosexuality. Even if it was accepted that male homosexuality was more widespread and less stable, it did not constitute a sufficient reason for difference in treatment. The Commission reasoned that the German legislature’s aim was ‘to prevent homosexual acts with adults having an unfortunate influence on the development of heterosexual tendencies in minors’. Although the effects of homosexuality, according to the Commission, are being widely studied in Europe, the fact remains that the aim of the German legislature, ‘was clearly inspired by the need to protect the rights of children and adolescents and enable them to achieve true autonomy in sexual matters’. Because of the difference in treatment, the Commission opined as follows:

The Commission declared the application inadmissible as manifestly ill-founded.

BinaryTech is in motion in how the Commission relied on the formula m/f ^ h/nh ^ m ^nh /f ^nh = h>nh ^ f ^nh >m ^nh . ^{Footnote 71} Besides scientific discourse, the previous Strasbourg human, the Convention, the Commission and the m^nh/f^nh differentiation are enacted as an agential cut within this specific intra-action. The understanding of the higher prevalence or visibility of m ^nh in society was reflected in the criminal law targeting only m ^nh . F ^nh was not criminal. Furthermore, the Strasbourg human continued to reinforce the h>nh hierarchy. M ^nh were given meaning as a ‘distinct socio-cultural group’ ^{Footnote 72} to which belonging would leave the adolescent ‘particularly marked’. ^{Footnote 73} Furthermore, the m ^nh was able to proselytize adolescents by sexual engagement. Only male homosexual bodies were seen to have an unfortunate influence on development of heterosexual tendencies in youth – a basis for legitimizing difference in treatment of homosexual men in criminal law. In other words, keeping homosexual bodies out of sight ‘in a democratic society’, for the protection of the heterosexual ideal of the Strasbourg human, was deemed legitimate. The Strasbourg human emerged as a male heterosexual whose heterosexuality needed the protection of criminal law. BinaryTech was reconfigured as follows: m>f ^ f ^nh >m ^nh distinguished f ^nh from m ^nh because m>m ^nh. and further rendered f ^nh invisible. These hierarchical discourses and the permissibility of the removal of male homosexual behaviour from the public sphere became an ontological part of the Strasbourg human phenomenon, and as such a stabilizing difference. The normalizing discourse of heterosexuality started to matter on the ground.

3.2.1 Dudgeon v. The United Kingdom

In Dudgeon v. The United Kingdom ^{Footnote 74} the applicant contested laws prohibiting buggery between males, between males/females and animals, and ‘gross indecency’ between male persons. ^{Footnote 75} He alleged that he had been suffering under an unjustified interference with his right to respect for his private life protected under Article 8 taken alone and in conjunction with Article 14. ^{Footnote 76} He claimed the very existence of the laws in force was the direct cause of the fear, suffering, and psychological distress he had been experiencing. ^{Footnote 77} Even though homosexuality was not criminal as such, the laws prohibited any sexual practices between consenting males, even in private. The Court acknowledged the vulnerability of a socially unpopular group the rights of which could easily be trampled by the democratic majority and found a violation of Article 8. ^{Footnote 78} However, the Court refused to consider the case under Article 14 in conjunction with Article 8, in terms of discrimination on account of sex (m/f), in legislation which set lower ages of consent for female non-heterosexuality(f ^nh ) and heterosexuality (h) in relation to male non-heterosexuality (m ^nh ). ^{Footnote 79} The Court did not find a legal purpose for determining this. ^{Footnote 80}

The Court accepted Mr. Dudgeon’s homosexuality as a fact ^{Footnote 81} and was of the opinion that his complaint arose from the fact that even consensual homosexual acts, which he might commit in private, were criminal offences in Northern Ireland. ^{Footnote 82} Male heterosexuality was considered as having a public character, while male non-heterosexuality was left to the private sphere. Judge Walsh, in his dissent, was concerned over the possibility of permissive language producing homosexuality: ‘Sexual behaviour is determined more by cultural influences than by instinctive needs … The legal arrangements and prescriptions set up to regulate sexual behaviour are very important formative factors in the shaping of social and cultural institutions.’ ^{Footnote 83} Furthermore, ‘It is known that many male persons who are heterosexual or pansexual indulge in these activities [m ^nh ] not because of any incurable tendency but for sexual excitement’, as Judge Walsh reasoned. ^{Footnote 84} Judge Walsh’s reasoning prompts an assumption that heterosexual persons have sex because of an incurable tendency rather than sexual excitement. Walsh’s dissent seems to have accepted the basic tenets of Butler’s performativity of gender. A more accepting discourse on homosexuality does not produce homosexual bodies; instead, it renders homosexual lives liveable and a possible choice for bodies which, in other circumstances, would have felt compelled to adapt to the normative discourse of heterosexuality. The desiring body is there from the start.

BinaryTech was in motion revealing the formula: m/f ^ h/nh = m>f ^ h>nh ^ f ^nh >m ^nh Footnote ⁸⁵ because only certain sexual acts between men were criminal. The blanket ban on sex between 18–21-year-old men inverts the sex/gender hierarchy to be f>m, but only in terms of non-heterosexuality as f ^nh >m ^nh . The Strasbourg human emerges through intra-action where the law, human bodies, and heteronormative discourses are enacted as agential cuts, both enabled and constrained by the formula. The Strasbourg human emerged as a heterosexual man or woman, or as a female-non-heterosexual without specific material or discursive constraints on the choice of partners. The space for male non-heterosexuality was confined to privacy; BinaryTech motioned for preserving and re-enforcing the hierarchies of m/f>m ^nh , and f ^nh >m ^nh . Furthermore, the Court laid foundations for the future by protecting homosexuality under Article 8 as ‘an essentially private manifestation of the human personality’. ^{Footnote 86}

3.2.2 X. and Y. v. The United Kingdom

The admissibility decision of X. and Y. ^{Footnote 87} concerned a Malaysian national, X, and a British national, Y. X. was deported from the UK for overstaying a visa. The applicants contested the deportation as an infringement of their right to family life, relying on Article 8. The Commission opined that despite the modern evolution of attitudes towards homosexuality, the applicants’ relationship did not fall within the scope of Article 8. The reasoning was based on the finding in Dudgeon that ‘certain restraints on homosexual relationships could create an interference with an individual’s right to respect for his private life’. ^{Footnote 88} The Commission drew parallels to other immigration cases, where it had been held that ‘there is no right to enter or remain in a particular country, guaranteed as such by the Convention’. ^{Footnote 89} The Commission recognized that an issue may arise under Article 8 when ‘a close member of a family is excluded from the country where his family resides …’ ^{Footnote 90} and noted that both applicants were professionally mobile and that ‘it was not shown that the applicants could not live together elsewhere than the United Kingdom, or that the United Kingdom is an essential element of the relationship’. ^{Footnote 91} According to the facts of the case the applicants had been in a stable relationship and they had been granted a permanent residence permit in Sweden. ^{Footnote 92}

BinaryTech is in motion revealing the following formula: m/f ^ h/nh = h>nh. In this intra-action, the law, the applicants’ bodies, the soil, the state, and heteronormative discourse of family life and kinship are enacted as agential cuts. The Strasbourg human was enabled and constrained to emerge as a heterosexual who, by default, has an essential connection to a contracting state and the capability of forming a family based on close membership thereto. Legal obligations arising from the Convention text became entangled with the British soil and the heterosexual body. While the soil and state were constituted as elements of the viable, that is, heterosexual relationship, the soil was not able to act as a stage for state supported non-heterosexual family life. The citizenship of a specific country did not create an essential element of a relationship that was merely a private matter, because m ^nh couples fell outside the scope of family life that was often generously sponsored by nation-states in its hetero form.Footnote ⁹³ Heterosexual family life started to matter as public and entangled with the soil and the state. The m ^nh couple was spatially detached from British soil and public life, which were reserved for heterosexual family life based on the binary h>nh.

3.2.3 Laskey, Jaggard and Brown v. The United Kingdom

The case of Laskey, Jaggard and Brown ^{Footnote 94} originated from three different applications of persons who had taken part in a sadomasochistic party at one applicant’s house. In 1987 the police found video films of sadomasochistic encounters involving the applicants and up to 44 other homosexual men in the course of routine investigations of other matters. ^{Footnote 95} The acts consisted of, inter alia, maltreatment of genitalia, ritualistic spanking with whips, and the use of nettles. All the acts were consensual and done for sexual gratification, and a code word was in use for stopping play. Furthermore, the acts did not lead to any permanent injury or need for medical assistance. It was not shown that the video tapes were circulating outside the closed group, nor was it suggested that the tapes had been sold or seen by outsiders. ^{Footnote 96} However, the prosecution was largely based on the video content. ^{Footnote 97} The applicants were charged with a range of offences, covering acts of assault and wounding. One of the charges involved a defendant who had not reached the age of 21 at that time. ^{Footnote 98} The applicants complained under Article 8 alone and in conjunction with Article 14.

The Court observed ‘there can be no doubt that sexual orientation and activity concern an intimate aspect of private life’, ^{Footnote 99} however, ‘not all consensual sexual activities for the purpose of sexual gratification behind closed doors fall under the scope of Article 8’ ^{Footnote 100} and could thus invoke Article 8(2) limitations. The Court concluded that the applicants’ respective prosecutions and convictions amounted to a breach of their private life, and assumed the task of finding whether the measures taken by the state were ‘necessary in a democratic society’. ^{Footnote 101} The Court found Lord Jauncey of Tullichette’s reasoning persuasive on the potential harm, inter alia, of Laskey being responsible ‘in part for the corruption of a youth “K” who is now, it seems, settled into a normal heterosexual relationship’. ^{Footnote 102}

To demonstrate a difference in treatment of homosexuals vis-à-vis heterosexuals and bisexuals, the applicants introduced a domestic case, where a husband consensually branded his initials with a hot knife on his wife’s buttocks. ^{Footnote 103} The Court of Appeals stated in dicta that ‘[an act] between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution’. ^{Footnote 104}

While replying to the applicants’ claim that they were singled out partly because of the authorities’ bias against homosexuals, the Court reaffirmed the trial judge’s remark in the applicants’ judgment that ‘unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them’. ^{Footnote 105} The Court unanimously held that the interference in the applicants’ private life was indeed necessary in a democratic society for the protection of health. No breach of Article 8 was found.

BinaryTech was in motion revealing the following formula: m/f ^ h/nh m>f = m>f ^ h>nh. Public/private binary discourses and matrimony are enacted as agential cuts within this particular intra-action, reinforcing m>f within those institutional settings. Peculiarly, bisexuals were mentioned but differentiation of f ^nh /m ^nh was left undistinguished. Heterosexuality was referred to as the norm, thus reinforcing h/nh and h>nh. The Strasbourg human emerged as heterosexual and able to inflict permanent injuries within the privacy of the matrimonial home, and develop normal heterosexual relationships if not corrupted by homosexuals between the ages of 16 and 21. The Court relied on the anticipated harmfulness of sadomasochistic encounters, leaving aside the fact that the films were accidentally found by the police in the course of investigations of other matters, while contending that the applicants were not victims of the authorities’ bias against homosexuals. Consequently, if non-heterosexual acts were part of an individual’s private life, it was permissible to further limit the private aspects of solely m ^nh for the protection of heterosexuality, perhaps because f ^nh was not seen as a threat to m/f where m>f. In other words, female homosexuality was not threatening the m>f power structure within the Strasbourg human.

3.3.1 Sutherland v. The United Kingdom

Sutherland v. the UK solved the issue of discrimination on account of sex in terms of different ages of consent. The case was admissible independent of whether sexual orientation difference was based on sex or on other status. The Commission reasoned: ‘it is a difference in respect of which the Commission is entitled to seek justification’. ^{Footnote 106} In its examination of the merits of the case, the Commission found that there was a difference in treatment in pursuit of the legitimate aim of protection of morals. However, a reasonable and objective justification for that was not found. ^{Footnote 107} The protection of 16–18-year-olds who had not settled their sexual orientation was not accepted. Neither did the Commission accept that the prohibiting laws would protect this vulnerable group from considerable social pressure and isolation, nor that criminal sanctions would deter young men from homosexuality. The Government asserted the entitlement of society ‘to indicate its disapproval of homosexual conduct and its preference that children [should] follow a heterosexual way of life’. ^{Footnote 108}

The Commission had to ponder whether sexual orientation as a category might qualify for Article 14 difference in treatment, either on account of sex or other grounds. The question was addressed with silence. In the present case, difference itself is enacted as an agential cut within this specific intra-action. BinaryTech is in motion revealing the formula m/f ^ f ^nh /m ^nh = f ^nh >m ^nh , rendering certain levels of control of m ^nh permissible.

The aforementioned binary differences were accepted as a justification for difference in treatment if that treatment served a legitimate aim. Evidently, even if the Commission refused to decide whether sexual orientation fell under the Article 14 ban, it was implicitly established through the m/f binary. This configuration based on enacting difference as an agential cut between m ^nh and f^nh led to f^nh>m^nh. The Strasbourg human started emerging as a more human phenomenon, or at least not constrained by discursive limitations in terms of finding sexual partners.

3.3.2 Smith and Grady v. The United Kingdom

Smith and Grady v. the UK ^{Footnote 109} joined two applications from Ms. Smith and Mr. Grady. They appealed their respective discharges from the British Air Force due to a blanket ban on homosexuality under Article 8 alone and in conjunction with Article 14. Both applicants’ homosexuality became known to their employer by disclosures from third persons. ^{Footnote 110} As part of the investigations Ms. Smith was questioned as to whether ‘she was into girlie games’ and was careful about not transmitting HIV; she had to respond to inquiries into whether her relationship to her foster child was of a sexual nature. She was discharged with a letter of recommendation describing her general proficiency as very good and her overall conduct as exemplary. ^{Footnote 111} Mr. Grady was referred to in the investigations as ‘queen’, ‘out’ and ‘bender’. He was questioned about his marital (heterosexual) sex life, when he had discovered his homosexuality, and whether he was HIV positive. ^{Footnote 112} Grady was subsequently discharged, although he was described as a loyal serviceman, a conscientious hard worker who could be relied upon to achieve the highest standards, and a person with sound personal qualities, integrity, and respect from other staff. ^{Footnote 113}

The armed forces had an equal opportunities policy in operation against sexual and racial harassment and bullying, emphasizing that ‘ [bullying] undermines morale and creates fear and stress both in the individual and the group being bullied in the organisation’. The Court stated that the restrictions on homosexuality concerned the most intimate part of an individual’s private life, and only ‘particularly serious reasons’ could justify these interferences. The Court accepted national security and the operational effectiveness of the armed forces, as well as the competence of each state to regulate the system of military discipline, as legitimate aims with a limited margin of appreciation. Furthermore, the Court underlined that the alleged threats to operational effectiveness must be substantially specified. The threats were, inter alia, that the stressful and confined military living conditions were deemed a risk and that a permissive approach towards homosexuality would have a negative effect on the morale of the troops, and ultimately on fighting power and operational effectiveness. ^{Footnote 114}

The Court considered the alleged breach to be especially grave as both applicants had kept their sexual orientation private prior to the disclosure to their employer by third persons. Furthermore, the blanket ban on homosexuality was considered decisive because the establishment of a person’s homosexuality would lead to immediate discharge based solely on personal characteristics rather than on service records. ^{Footnote 115} The Court found a violation of Article 8; however, no separate issue was seen to arise under Article 8 in conjunction with Article 14. ^{Footnote 116}

BinaryTech is in motion revealing the formula m/f ^ h/nh = h>nh. The discharges demonstrated that the sui generis nature of the armed forces could not be enacted as an agential cut for creating a difference, subsequently to be used as a justification for difference in treatment. Effective fighting power could be provided by non-heterosexual people. The Strasbourg human emerged as formally equal within the armed forces; on the other hand, the acts were considered particularly intrusive because the applicants chose to keep their sexuality private both discursively and materially. This construction continued and re-enforced the binary h/nh where h>nh in the public space.

3.3.3 Schalk and Kopf v. Austria

In Schalk and Kopf ^{Footnote 117} the applicants were two homosexual men who contested Austrian legislation which did not offer any legal recognition of same-sex partnerships at the time of filing the complaint. They complained under Articles 12 and 8 alone and Article 8 in conjunction with Article 14, relying on the Court’s analysis found in Christine Goodwin v. the UK. ^{Footnote 118} Six years later we find the same materiality of discourse in Hämäläinen v. Finland. In Hämäläinen a religious couple had to dissolve their marriage, after the ‘husband’s’ gender reassignment was deemed permissible under the Convention. ^{Footnote 119} There the Court stated that even if marriage had undergone major social changes since the 1950s, European consensus on same-sex marriage could not be found. The Court rejected the applicants’ submission of the Convention being a living instrument to be interpreted in present day conditions, which should lead to the granting of legal recognition to same-sex couples. It approached the issue through Article 12 black-letter-law, where it was evident that men and women actually meant a man and a woman according to the French version ‘l’homme et la femme ont le droit de se marier’. ^{Footnote 120} The Court stated that ‘in contrast, [to Article 12] all other substantive Articles … grant rights and freedoms to “everyone” or state that “no one” is to be subjected to certain types of prohibited treatment’. The Court declared that ‘[i]n the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex’, rendering the wording of Article 12 deliberate. ^{Footnote 121} The Court distinguished the present case from Christine Goodwin, where the opposite-sex composition of marriage was preserved if transsexuals marry in their assigned gender. ^{Footnote 122} The Court also noted that according to its jurisprudence on married couples, where one of the partners wants to correct their biological sex and have it legally fully recognized, they must end their marriage in cases where same-sex marriage is not provided for in national law. ^{Footnote 123} No violation of Article 12 was found. ^{Footnote 124}

The Court analysed the case under Article 8 in conjunction with Article 14 and shifted the focus to family life. The applicants invited the Court to consider its dicta in Karner: ^{Footnote 125} ‘the protection of family in the traditional sense is, in principle, a weighty and a legitimate reason which might justify a difference in treatment’. ^{Footnote 126} The Court affirmed that in cases where difference in treatment is based on sexual orientation the margin of appreciation afforded to states is particularly narrow. Consequently, it would have had to be shown that the measure is suited for realizing the aim pursued, and that ‘it was necessary in order to achieve that aim to exclude certain categories of people’. ^{Footnote 127} Even if the margin of appreciation was especially narrow in cases concerning family life, the Court went on to state that ‘same-sex couples are just as capable as different sex couples of entering into stable and committed relationships. Consequently, they are in a … need for legal recognition and protection of their relationship’. ^{Footnote 128} However, the state did not have to fulfil the test of, first, showing what the legitimate aim being pursued was and, second, showing whether the contested law was proportionate to the non-existent aim sought. Instead, the Court stated that there is ‘an emerging European consensus towards legal recognition of same-sex couples’. ^{Footnote 129} As there was no consensus on the matter, same-sex couples’ legal recognition must be seen as an ‘evolving right’, which gives a wide margin of appreciation to States ‘in the timing of the introduction of legislative changes…’. ^{Footnote 130}

In this case the law, difference, and matrimony are enacted as agential cuts. BinaryTech is in motion and reveals the formula m/f ^ h/nh = h>nh. Interestingly, the Strasbourg human could emerge through this intra-action with a capability of entering into stable and committed relationships, but marriage was limited to heterosexual people, who enjoyed a materially favourable position in terms of inheritance and other benefits connected thereto. Here we find reproduction of homosexuality as an incurable tendency within heterosexuality vis-à-vis homosexuality as a mere choice. Non-heterosexuals did not have the choice of either fitting or not fitting into the ‘marriage norm’, as heterosexuals did. Non-heterosexual relationships were not to enjoy the level of protection of ‘traditional’ marriage, thus the Court continued to reinforce the binary m/f making evident the h>nh preference as an ontological part of the Strasbourg human through the separation of same-sex bodies.

3.3.4 Stoyanova v. Bulgaria

The case of Stoyanova v. Bulgaria ^{Footnote 131} concerned the applicant’s 26-year-old son, who was assaulted and choked to death in a park in Sofia by three men because ‘they thought that he looked like a homosexual’. ^{Footnote 132} The three men were part of a group of six secondary school students who often gathered in the park in question. In the course of their gatherings, they singled out homosexuals known to frequent the park and assaulted them, calling these acts ‘kicking’ or ‘clean-up’. ^{Footnote 133} The mother of the 26-year-old victim complained under Article 14 read in conjunction with Article 2 right to life. The applicant submitted that the Bulgarian legislature was in breach of the Convention on three accounts: (i) the failure of the legislature to view homophobic motives as a statutory aggravating factor; (ii) the refusal of the Bulgarian courts to deem those motives to constitute hooligan ones; and (iii) the failure of those courts to treat those homophobic motives as an aggravating factor when fixing the attackers’ sentences. ^{Footnote 134}

In the present case the Court draws attention to the striking fact that the Bulgarian Supreme Court of Cassation completely disregarded the homophobic motives behind the attack, even though they were plainly a key feature of the case. They concentrated on other matters while analysing the interplay of individual mitigating and aggravating factors. ^{Footnote 135} Far from focusing on the homophobic motive, the Supreme Court instead ‘considered that the attackers deserved special leniency, and chose to fix their sentences well below the statutory minimum’. ^{Footnote 136} The Court did not establish the victim’s homosexuality as an ontological ‘fact’. ^{Footnote 137} Instead, the perceived homosexuality of the applicant’s son was decisive in the Court’s reasoning when determining why there had been a procedural shortcoming in the Bulgarian criminal process. The ECtHR found a violation of Article 14 taken together with Article 2, on the grounds that the Bulgarian courts clearly established the attackers’ motivation as being hostility towards people whom they perceived to be homosexuals without attaching any tangible legal consequences to that finding. ^{Footnote 138}

BinaryTech reveals the formula m/f ^ h/nh ^ m ^nh /f ^nh = h>nh ^ m> m ^nh ^ f ^nh >m ^nh . In the present case, the law, Bulgarian legal discourse, the attackers, the dead perceived homosexual body, the park, and social discourses on intelligible homosexuality are enacted as agential cuts.

The park known to be visited by m ^nh was chosen as the material venue for the planned attack which re-iterated m>m ^nh and f ^nh /m ^nh . Furthermore, social discourses based on h/nh, m ^nh /f ^nh , m/m ^nh , and h>nh enabled the attackers to perceive the victim as a homosexual. The attackers’ description of their actions as ‘clean up’ were based on dualist discourses on public/private, where they felt justified in purging a public space of homosexuality. The Bulgarian legal discourse was unable to identify the homophobic undertones of the killing and instead showed leniency towards the attackers, in so doing reinstating h>nh and m> m ^nh . The victim’s body was removed from the intra-action producing his material-discursive human phenomenon as well as from the ongoing intra-activity of the world’s becoming. ^{Footnote 139} The Court did not give significance to whether the victim was a homosexual by establishing it as a fact, intuitively shifting towards an understanding of the Strasbourg human through relational ontology where matter and discourse are entangled, and discourses of difference have material effects.