DISSENTING OPINION OF JUDGE GRABENWARTER

1. I voted against the majority ' s decision to reject the Government ' s request that the application be struck out of the list of cases, for the following reasons.

The Court has decided on a number of occasions to permit a successor in title to continue Convention proceedings when an applicant has died. In the present case, however, it appears that there are no heirs, with the result that Article 37 § 1 of the Convention is in issue.

2. Under Article 37 § 1 of the Convention the Court may at any stage of the proceedings decide to strike an application out of the list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue his application. However, the Court should continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

I agree with the majority that discrimination against homosexuals in general, and in the field of tenancy legislation in particular, forms an important aspect of respect for human rights. This does not, however, in itself justify the continued examination of a case after the death of an applicant in proceedings under Article 34 of the Convention. The reasoning of the majority is rather short as the reference to case-law concerning the continuation of proceedings when there are heirs does not apply in this case.

At the outset, I agree with the majority that, despite the death of the applicant and the absence of a formal successor in title, the Court may in exceptional cases continue the examination of a case. I also agree that the general importance of the case may be of relevance in this respect.

3. However, I do not share the opinion that the present case is one of “general importance” for these purposes. In taking up the wording of earlier judgments in a different context, the majority suggest that it suffices if the continuation of the examination would “contribute to elucidate, safeguard and develop the standards of protection under the Convention” (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, p. 62, § 154, and Guzzardi v. Italy , judgment of 6 November 1980, Series A no. 39, p. 31, § 86). While it is true that judgments also serve these purposes, it is not in line with the character of the Convention system (which is primarily designed to protect individuals) to continue proceedings without an applicant on the ground that this contributes to elucidating, safeguarding and developing the standards of protection under the Convention. This rather general criterion is met by the majority of the cases declared admissible, at least by those where the alleged violation is caused by domestic law or general practice and not by the practice applied in the particular case. “General importance” needs to be read in a narrower sense.

The judgment gives no reason for the “general importance” of the case other than the reference to the submissions of a third party, whose intervention “highlights the general importance of the issue”. The fact that third parties applied to intervene is an indication of a certain general interest in the case, but it does not mean that the case is of a general importance (see Rule 61 § 3 of the Rules of Court and Article 36 § 2 of the Convention for the criteria for third-party interventions).

In this connection, reference must be made to a recent judgment of the Fourth Section of the Court in Sevgi ErdoÄŸan v. Turkey (striking out) (no. 28492/95, 29 April 2003 ), paragraph 38 of which reads as follows:

“In the light of the foregoing, and given the impossibility of establishing any communication with the applicant ' s close relatives or statutory heirs, the Court considers that her representative cannot meaningfully continue the proceedings before it (see, mutatis mutandis , Ali v. Switzerland , judgment of 5 August 1998, Reports of Judgments and Decisions 1998 ‑ V, pp. 2148-49, § 32). The Court would also point out that it has already had occasion to rule on the issue raised by the applicant under Article 3 in its examination of other applications against Turkey (see, among many other authorities, Aksoy v. Turkey , judgment of 18 December 1996, Reports 1996 ‑ VI; BüyükdaÄŸ v. Turkey , no. 28340/95, 21 December 2000; and, as the most recent example, Algür v. Turkey , no. 32574/96, 22 October 2002). Having regard to those considerations, the Court concludes that it is no longer justified to continue the examination of the application.”

Sevgi ErdoÄŸan shows that , while a question of general importance may attach to, for example, cases involving gross violations of human rights (such as the execution of someone following a death sentence before this Court has given judgment), even treatment that may fall under Article 3 of the Convention does not in itself justify continuing the examination of an application. Therefore, it is hard to see why a violation of Article 14 of the Convention taken in conjunction with Article 8 should be seen differently unless there are other reasons.

It appears from Sevgi Erdoğan that a prior judgment on the same issue may be relevant in considering whether an application should be struck out of the list of cases under Article 37 § 1 of the Convention. The majority do not rely on that argument. If they had done so they could not have supported the continuation of the proceedings for the following reason. If the Court has not yet decided a particular issue, the question arises whether it would be difficult to bring a similar case before the Court. It follows, however, from the submissions of the applicant ' s lawyer that there are a number of parallel cases in Austria, especially in Vienna, that could easily be brought before the Austrian courts and hence before this Court. Against the background of the decision of the Austrian Supreme Court in this case, it may even be doubtful whether future applicants would have to introduce a remedy before that court in order to fulfil the requirements of Article 35 of the Convention. In sum, I do not think that it would be especially difficult to bring a parallel case before the European Court of Human Rights.

Both the lack of general importance of the present case and the lack of any particular difficulty in bringing a parallel case before the Court lead me to the conclusion that the present application should have been struck out of the list of cases. The European Court of Human Rights is not a constitutional court which decides on a case-by-case basis which cases it deems expedient to examine on the basis of a general criterion such as the one provided by the majority.

At any rate, the Chamber broke new ground with this decision, which is unprecedented in the case-law of the Court. It refers to a number of cases at paragraph 23 of the judgment, although not Sevgi Erdoğan , and then proceeds to decide this case differently. In my view, this is a clear case in which Article 30 of the Convention applies: the judgment has a “result inconsistent with a judgment previously delivered by the Court”. It also raises a serious question affecting the interpretation of the Convention. The Chamber should then have relinquished jurisdiction in favour of the Grand Chamber.

4. Were the applicant still alive, I would have voted in favour of finding a violation of Article 14 of the Convention taken in conjunction with Article 8. I only voted against finding a violation as a consequence of my vote on the Government ' s request to strike the application out of the list of cases.

5. I also voted against the award of just satisfaction under Article 41 of the Convention. However, this is not only a matter of consistency. The decision on that point again shows the problems which arise if one strains the natural wording of the Convention. Article 41 tells us that just satisfaction can only be awarded to an “injured party”. This reflects again the notion that the Convention system serves to protect individuals. In this case we have no injured party any more, and there is still some doubt about whether heirs might still turn up (see paragraph 18 of the judgment). To award the specified sum to the applicant ' s “estate” where there are no heirs does not solve the problem. In the (probable) event that no heir is found, the estate will pass to the State (Article 760 of the Civil Code, ABGB ), which means that the Contracting Party will have to pay the money from one pocket to the other.