Information Note on the Court’s case-law No. 151
March 2012
Stübing v. Germany - 43547/08
Judgment 12.4.2012 [Section V]
Article 8
Article 8-1
Respect for private life
Conviction for incest: no violation
Facts – At the age of three the applicant was placed in foster care. He was eventually adopted and had no further contact with his family of origin. Following his biological mother’s death in 2000, the applicant re-established contact with his family of origin and began having consensual sexual intercourse with his biological sister S.K., then aged 16. They lived together for several years and had four children. The applicant was convicted of incest several times and sentenced to imprisonment. S.K. was found to be suffering from a serious personality disorder and mild learning disabilities and was therefore not given a sentence. The applicant’s appeals against his convictions were dismissed. In dismissing the applicant’s constitutional complaint, the Constitutional Court gave a detailed decision why it considered that sexual relations between siblings could adversely affect the family structure and society as a whole as well as carry consequences for the children resulting from such relations.
Law – Article 8: It was common ground that he applicant’s conviction constituted an interference with his private life, which included his sexual life. The conviction was further in accordance with domestic law, namely section 173 § 2 of the Criminal Code, which prohibited consensual sexual intercourse between consanguine adult siblings and which aimed at the protection of morals and the rights of others. What remained to be examined was whether the applicant’s conviction had been necessary in a democratic society, regard being had to the fair balance that had to be struck between the relevant competing interests and the margin of appreciation enjoyed by the State. In respect of the latter, the Court noted that there was no consensus among the Council of Europe member States as to whether or not the consensual commitment of sexual acts between adult siblings should be criminally sanctioned. However, a majority of twenty-four of the forty-four States reviewed provided for criminal liability in such cases and all legal systems – including those which did not impose criminal liability – prohibited siblings from getting married. Thus, there was a broad consensus that sexual relations between siblings were neither accepted by the legal order or by society as a whole. The domestic authorities therefore enjoyed a wide margin of appreciation in how to confront incestuous relationships between consenting adults, notwithstanding that their decision concerned an intimate aspect of an individual’s private life. Having carefully examined all the arguments for and against, the Federal Constitutional Court had concluded that the imposition of criminal liability was justified for the protection of the family, self-determination and public health. It also considered that sexual relations between siblings might seriously damage family structures and consequently society as a whole. In addition, the Court noted that S.K. had first entered into a sexual relationship with the applicant at the age of sixteen, following the death of their biological mother. She suffered from a serious personality disorder, which had led her to become considerably dependent on the applicant. Having particular regard to the Constitutional’s Court careful consideration of the applicant’s case, as well as to the wide margin of appreciation enjoyed by the State, the Court concluded that the domestic courts had not overstepped their margin when convicting the applicant of incest.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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