Lexploria

The European Commission of Human Rights sitting in private

on 14 May 1986 the following members being present:

Present: MM. C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms (art. 25);

Having regard to the application introduced on 22 August 1985 by Mary

Cunningham SIMPSON against the United Kingdom and registered on

26 August 1985 under file N° 11716/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen, born in 1947. She is

unemployed and gives her address as care of her solicitor,

Mr. R. H. Sedler initially of Messrs Coates & Company in Leeds and

now of Messrs. Ralph C. Yablon in Bradford.

The facts of this application, as they have been submitted by the

applicant, may be summarised as follows:

In about September 1981 the applicant commenced co-habitation at a

house belonging to the Borough of Harrogate with a woman,

Mrs. R. whom she had known since 1972. Mrs. R. was a "secure

tenant" within the meaning of the Housing Act 1980 from the Harrogate

Borough Council.

The applicant and Mrs. R. ran a joint household, sharing all expenses.

They slept together in the same bed and had a lesbian relationship.

The applicant dressed as a woman and Mrs. R. dressed as a man. It was

generally known and accepted in the neighbourhood that they lived

together in a lesbian relationship as man and wife and the applicant's

representative has submitted a letter dated 6 March 1984 from the

applicant's general medical practitioner stating that "for three years

[Mrs. R] and [the applicant] have lived together in a lesbian

relationship as 'man and wife'. This has been well known and accepted

in the area. [The applicant] would be grateful of any help towards

her present housing situation."

On 8 February 1984 Mrs. R. died and the Harrogate Borough Council

commenced possession proceedings against the applicant. Those

proceedings were successful in the Harrogate County Court, where a

suspended possession order was granted in the Council's favour on

20 July 1984.

The applicant appealed to the Court of Appeal requesting that the

possession order be set aside, that a declaration be made that the

tenancy should rest in the applicant by virtue of Section 30 of the

Housing Act 1980 and asking for costs.

Section 30 of the Housing Act 1980 provides as follows:

"30.-(1) Where a secure tenancy is a periodic tenancy and, on the

death of the tenant, there is a person qualified to succeed him, the

tenancy vests by virtue of this section in that person or, if there is

more than one such person, in the one who is to be preferred in

accordance with subsection (3) below, unless the tenant was a

successor.

(2) A person is qualified to succeed the tenant under a secure tenancy

if he occupied the dwelling-house as his only principal home at the

time of the tenant's death and either -

(a) he is the tenant's spouse; or

(b) he is another member of the tenant's family and has resided with

the tenant throughout the period of twelve months ending with the

tenant's death.

(3) Where there is more than one person qualified to succeed the

tenant -

(a) the tenant's spouse is to be preferred to another member of the

tenant's family; and

(b) of two or more other members of the tenant's family such of them

is to be preferred as may be agreed between them or as may, where

there is no such agreement, be selected by the landlord."

Section 50 (3) of the Housing Act 1980 defines "a member of another's

family" for the purposes of the application as: "his spouse, parent,

grandparent, child, grandchild, brother, sister, uncle, aunt, nephew

or niece; treating -

(a) any relationship by marriage as a relationship by blood, any

relationship of the half blood as a relationship of the whole blood

and the stepchild of any person as his child; and

(b) an illegitimate person as the legitimate child of his mother and

reputed father;

or if they live together as husband and wife".

The Court of Appeal gave judgment on 11 December 1984 against the

applicant.

In his judgment, Lord Justice Watkins accepted that the public opinion

of men or women living together had changed, but agreed with Counsel

for the Council that, "if parliament had wished homosexual

relationships to be brought into the realm of the lawfully recognised

state of a living together of man and wife for the purposes of the

relevant legislation, it would plainly have so stated in that

legislation, and it has not done so ...". Mr. Justice Ewbank agreed

that "living together as husband and wife" did not include homosexual

relationships. He held that "the essential characteristic of living

together as husband and wife, in my judgment, is that they should be a

man and a woman and that they should be living together in the same

house".

The applicant's request for leave to appeal to the House of Lords was

refused, and a petition to the House of Lords for leave to appeal was

refused by the Appeal Committee on 28 February 1985.

COMPLAINTS

The applicant complains that respect for her private and family life

has been denied, and that she has been evicted from her home for no

other reason than that she was of the wrong sex to be able to claim

under domestic law to succeed to the tenancy of her home. She further

claims that the eviction was not necessary on any ground enumerated

within Article 8 para. 2.

She further claims that she has been discriminated against in relation

to her rights under Article 8 of the Convention. She also

invokes Article 1 of Protocol No. 1 to the Convention and

Article 13 of the Convention.

THE LAW

1. The applicant allegs a violation of Article 8 (Art. 8) of

the Convention in several respects.

Article 8 (Art. 8) provides as follows:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

2. The applicant complains that respect for her family life has

been denied without justification under Article 8 para. 2 (Art. 8-2)

of the Convention.

As regards family life, the Commission recalls that it has already

found 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). The present applicant's relationship

with her now deceased partner accordingly also falls outside the scope

of Article 8 (Art. 8) insofar as it protects the right to respect for

family life.

It follows that this part of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

3. As regards private life, the Commission accepted in

Application No. 9369/81 (loc. cit.) that the applicant's relationship

in that case did constitute a matter affecting their private life. In

the present case, however, the applicant has lived alone since the

death of her partner and the applicant's own private life in respect

of that partner has not been interfered with. Any interference which

there may have been with the applicant's private life falls to be

considered in the context of her home, which is dealt with in the

following paragaraph.

It follows that the Commission is not required to consider this aspect

of the application.

4. The applicant alleges that she has been evicted from her home

for no other reason than that she was of the wrong sex to have a claim

under domestic law to succeed to the tenancy of her home.

The Commission notes that the applicant was occupying the house, of

which her partner had been the tenant, without any legal title

whatsoever. Contractual relations were established between the local

authority and the deceased partner and that contractual agreement may

or may not have permitted long-term visitors. The fact remains,

however, that on the death of the partner, under the ordinary law, the

applicant was no longer entitled to remain in the house, and the local

authority was entitled to possession so that the house could no longer

be regarded as "home" for the applicant within the meaning of

Article 8 (Art. 8).

Further, even if the applicant's right to respect for her home, as

guaranteed by Article 8 (Art. 8), could be regarded as having been

interfered with by order of the county court for possession against

her, the Commission considers that such interference was clearly in

accordance with the law and was also necessary for the protection of

the contractual rights of the landlord to have the property back at

the end of the tenancy.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

5. The applicant alleges a violation of Article 1 of

Protocol No. 1 (P1-1) to the Convention which provides, as far as

relevant, as follows:

"Every ... person is entitled to the peaceful enjoyment of his

possessions. ... "

The Commission has already found that there was no contractual nexus

between the applicant and the local authority. The applicant has not

shown that her possessions were in any way interfered with, and the

fact that she had been living in the house for some time without legal

title cannot constitute a possession within the meaning of Article 1

of Protocol No. 1 (P1-1).

It follows that this part of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

6. The applicant alleges a violation of Article 14 of the

Convention (Art. 14) both in relation to her rights under the

Housing Act 1980 and in relation to her rights under Article 8 of the

Convention (Art. 8).

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

... "

7. The Commission recalls that a difference in treatment in the

enjoyment of the rights and freedoms set forth in the Convention is

not to be regarded as discrimination for the purposes of Article 14

(Art. 14) if that difference has objective and reasonable

justification provided that the means employed are reasonably

proportional to the aim sought to be realised.

In the present case, the Commission has found that the applicant's

right in this case to private life is not applicable under Article 8

(Art. 8). The Commission is therefore only required to consider

Article 14 (Art. 14) in connection with Article 8 (Art. 8) so far as

that Article relates to "the right to respect for ... home".

The Commission accepts that the treatment accorded to the applicant

was different from the treatment she 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) of the

Convention. The aim itself is clearly legitimate. The question remains,

however, of whether it was justified to protect families but not to

give similar protection to other stable relationships. The Commission

considers 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 it see no reason

why a High Contracting Party should not afford particular assistance

to families. The Commission therefore accepts that the difference in

treatment between the applicant and somebody in the same position

whose partner had been of the opposite sex can be objectively and

reasonably justified.

As to proportionality, the Commission notes that the concept requires

that the application of a measure must be in reasonable relation to

its aim. In a case such as the present one, however, the complaint is

that the relevant provisions of the Housing Act 1980 did not apply to

the application, because they gave a benefit to the claims of persons

("family") only. The question of proportionality between the means

employed as against the applicant and the aim pursued cannot,

therefore, arise.

The Commission concludes that the applicant has not suffered

discrimination contrary to Article 14 (Art. 14). Accordingly, this

aspect of the application is manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2).

8. The applicant invokes Article 13 of the Convention (Art. 13)

in connection with her previous allegations. The Commission has found

that the Housing Act 1980, including its effects in the applicant's

case, is compatible with the substantive provisions of the Convention.

In such a situation, the requirements of Article 13 (Art. 13) will be

satisfied if there exists domestic machinery whereby the individual

can secure compliance with the relevant laws (see, e.g., Eur. Court

H.R., James case, judgment of 21.2.86, para. 86 and references there).

It is apparent that effective remedies in this sense were available to

the applicant insofar as she appealed to the Court of Appeal and House

of Lords.

This part of the application is accordingly manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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S. v. the UNITED KINGDOM

S. v. the UNITED KINGDOM