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Rh kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member-States.” (Footnote omitted).

Article 3.3 of the German Grundgesetz (GG) does not include sexual orientation as a ground on which a person may not be “favoured or disfavoured”. Under section 175 of the German Criminal Law Code (“CLC”) of 1935 a man who committed a sexual act (“Unzucht treibt”) on another man or permitted a sexual act to be committed on himself was punishable with imprisonment; an exception could be made in the case of a man under 21 years of age. Section 175a prescribed minimum and maximum sentences for particular cases of “Unzucht treiben”. This section was repealed in 1969.

Section 175 of the CLC was finally repealed in 1994, with the consequence that private consensual sexual relations between males are no longer criminalised. All men and women under the age of 16 now receive the same protection under section 182 of the CLC in respect of sexual acts, whether they are heterosexual, gay or lesbian.

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