AS TO THE ADMISSIBILITY OF
Application No. 28318/95
by Marc RÖÖSLI
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 May 1995 by
Marc RÖÖSLI against Germany and registered on 25 August 1995 under file
No. 28318/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The applicant, born in 1965, is a Swiss national and resident in
Munich. Before the Commission he is represented by Mr. A. Günther, a
lawyer practising in Munich.
The facts of the present case, as they have been submitted by the
applicant, may be summarised as follows.
In 1988 the applicant commenced co-habitation with Mr. B. at an
apartment owned by Mrs. W. and rented by Mr. B. The applicant and
Mr. B. had a homosexual relationship. Mr. B. died in 1993.
In March 1994 the applicant informed Mrs. W. that he intended to
succeed to the late Mr. B.'s tenancy contract. Mrs. W. thereupon
commenced eviction proceedings against the applicant.
On 31 May 1994 the Munich District Court (Amtsgericht) granted
Mrs. W.s eviction claim and ordered the applicant to leave the
apartment by the end of August 1994. The District Court noted that
Mr. B. had rented the apartment in question. Upon Mr. B.'s death, the
tenancy contract had ceased to exist. The applicant had no right under
the German Civil Code (Bürgerliches Gesetzbuch) to succeed to the
tenancy contract, as he was no heir and could not be regarded as a
family member within the meaning of this provision. The Court further
noted that while the term of "family member" had been interpreted in
the German case-law to include members of other couples, this only
extended to heterosexual partners. In this respect the District Court
considered that S. 569 a para. 2 was a special rule limiting the
contractual freedom of the landlord. Such a rule could only in
exceptional circumstances be applied by analogy. Thus the views on
marriage and family had changed in society and justified the extension
of the said provision to heterosexual couples. However, homosexual or
lesbian couples were not similarly accepted in society.
On 7 December 1994 the Munich I Regional Court (Landgericht)
dismissed the applicant's appeal (Berufung). The Regional Court
confirmed the District Court's reasoning and further observed that the
fact that, in the context of other legal provisions, heterosexual
couples were meanwhile taken into account, also justified the extension
to them of the application of S. 569 a para. 2. Article 6 of the Basic
Law had to be understood as affording special protection to women and
men living together as wife and husband.
On 2 March 1995 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to admit the applicant's
constitutional complaint (Verfassungsbeschwerde). The decision was
served on 8 March 1995.
COMPLAINTS
The applicant complains under Article 14, taken in conjunction
with Article 8, of the Convention that, unlike the surviving partner
of married or other heterosexual couples, he was refused succession to
the tenancy of his late friend's apartment.
THE LAW
1. The applicant alleges that German law, as applied by the German
courts in his case, amounts to a violation of Article 14, taken
together with Article 8 (Art. 14+8), of the Convention.
Article 8 para. 1 (Art. 8-1) provides as follows:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence."
Article 14 (Art. 14) of the Convention, so far as relevant,
provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
grounds, such as sex ... "
The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and its Protocols. It
has no independent existence, since it has effect solely in relation
to the "rights and freedoms" safeguarded by those provisions. Although
the application of Article 14 (Art. 14) does not presuppose a breach
of one or more of such provisions - and to this extent it is autonomous
-, there can be no room for its application unless the facts of the
case fall within the ambit of one or more of the latter (cf. Eur. Court
H.R., Inze judgment of 28 October 1987, Series A no. 126, p. 17, para.
36).
The applicant has invoked Article 14 in conjunction with
Article 8 (Art. 14+8) and the Commission, therefore, has to ascertain
whether his complaint falls within the ambit of this provision.
As regards family life, the Commission recalls that, despite the
modern evolution of attitudes towards homosexuality, a stable
homosexual relationship between two men does not fall within the scope
of the right to respect for family life ensured by Article 8 (Art. 8)
of the Convention (No. 9369/81, Dec. 3.5.83, D.R. 32 p. 220; No.
11716/85, Dec. 14.5.86, D.R. 47 p. 274). The present applicant's
relationship with his now deceased partner accordingly falls outside
the scope of Article 8 (Art. 8) insofar as it protects the right to
respect for family life.
As regards private life, the Commission has accepted that
homosexual or lesbian relationships constitute matters affecting these
persons' private lives (Appl. No. 9369/81, loc. cit.; No. 11716/85,
loc. cit.). In the present case, however, the applicant has lived
alone since the death of his partner and the applicant's own private
life in respect of that partner has not been interfered with.
The Commission finds that any interference which there may have
been with the applicant's private life falls to be considered in the
context of his home. While the applicant was not himself tenant of the
apartment in question and was, under the current German legislation,
not entitled to stay there, the question of his eviction from the place
where he had been living with Mr. B. for almost five years falls within
the ambit of the applicant's right to respect for his home, as
guaranteed by Article 8 para. 1 (Art. 8-1).
The Commission further recalls that, for the purposes of
Article 14 (Art. 14), a difference of treatment is discriminatory if
it has no objective and reasonable justification, that is, if it does
not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the aim
sought to be realised (Eur. Court H.R., Inze judgment, loc. cit., p.
18, para. 41).
As regards the question of succession to his late partner's
tenancy, the treatment accorded to the applicant under the relevant
legislation was different from the treatment he would have received if
the partners had been of different sexes.
The Commission finds that the aim of the legislation in question
was to protect the family, a goal similar to the protection of the
right to respect for family life guaranteed by Article 8 (Art. 8),
which is a legitimate aim under the Convention.
The question remains, however, of whether it was justified to
protect families but not to give similar protection to stable
homosexual or lesbian relationships. The Commission recalls that the
family, to which the relationship of heterosexual unmarried couples
living together as husband and wife can be assimilated, merits special
protection in society and that there is no reason why a High
Contracting Party should not afford particular assistance to families.
The Commission therefore accepted that the difference in treatment
between the surviving partner of a homosexual or lesbian couple and
somebody in the same position whose partner had been of the opposite
sex can be objectively and reasonably justified. Furthermore, the
Commission observed that the question of proportionality between the
means employed and the aim pursued did not arise, as the complaint was
that the legislation in question did not apply to the surviving partner
of a homosexual couple, but gave a benefit to the claims of certain
persons ("family") only (cf. No. 11716/85, loc. cit.).
Having also regard to the German courts' reasoning, the
Commission finds no reason to depart from these findings in the
circumstances of the present case.
The Commission concludes that the applicant has not suffered
discrimination contrary to Article 14 (Art. 14). Accordingly, the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy