Lexploria

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)

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RÖÖSLI v. GERMANY

RÖÖSLI v. GERMANY

LEXI