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24.7.2003

Press release issued by the Registrar

CHAMBER JUDGMENT IN THE CASE OF KARNER v. AUSTRIA

The European Court of Human Rights has today notified in writing a judgment[fn1] in the case of Karner v. Austria (application no. 40016/98). The Court held by six votes to one that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for home) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant’s estate, by six votes to one, 5,000 euros for costs and expenses.

(The judgment is available only in English.)

1.  Principal facts

The applicant, Siegmund Karner, was an Austrian national born in 1955. He used to live in Vienna. He died on 26 September 2000. His lawyer informed the Court that Mr Karner’s mother had waived her right to succeed to the estate. He later informed the Court that the public notary dealing with Mr Karner’s estate had started trying to trace possible heirs.

From 1989 Mr Karner shared a flat with his homosexual partner, who had started renting it a year earlier. They shared the outgoings on the flat. In 1991 his partner discovered that he was infected with the Aids virus. When he developed Aids in 1993, Mr Karner nursed him. In 1994 he died after designating Mr Karner as his heir.

In 1995 the landlord brought proceedings against Mr Karner to terminate the tenancy. The District Court dismissed the action, considering that the statutory right of family members to succeed to a tenancy also applied to persons in a homosexual relationship. That decision was upheld by the Regional Court, but subsequently quashed on 5 December 1996 by the Supreme Court, which found that the notion of "life companion" had to be interpreted as at the time the statute had been enacted and that the legislature’s intention in 1974 had not been to include persons of the same sex.

2.  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 24 July 1997 and transmitted to the Court on 1 November 1998. It was declared partly admissible on 11 September 2001.

Judgment was given by a Chamber of 7 judges, composed as follows:

Christos Rozakis (Greek), President,
Peer Lorenzen (Danish),
Giovanni Bonello (Maltese),
Nina Vajić (Croatian),
Snejana Botoucharova (Bulgarian),
Vladimiro Zagrebelsky (Italian), judges,
Christoph Grabenwarter (Austrian), ad hoc judge,

and also Søren Nielsen, Deputy Section Registrar.

3.  Summary of the judgment [fn2]

Complaint

The applicant complained under Article 14, taken together with Article 8, of the Convention that he had been the victim of discrimination on the ground of his sexual orientation.

Decision of the Court

Request to strike out under Article 37 § 1 of the Convention

The Government requested that the application be struck out of the list of cases since the applicant had died and there were no heirs who wished to pursue the application. The Court considered that the subject matter of the application involved an important question of general interest not only for Austria but also for other States that had ratified the Convention. The continued examination of the application would contribute to elucidating, safeguarding and developing the standards of protection under the Convention. In the circumstances, the Court found that respect for human rights as defined in the Convention and its Protocols required it to continue the examination of the case. Accordingly, it rejected the Government’s request.

Article 14 taken together with Article 8 of the Convention

The Court found that, as the applicant’s complaint related to the adverse effect of the alleged difference in treatment on the enjoyment of his right to respect for his home, Article 14 was applicable.

The Court reiterated that differences based on sexual orientation required particularly serious reasons by way of justification. The Government had submitted that the aim of the statutory provision in issue was the protection of the traditional family unit. The Court could accept that this was, in principle, a weighty and legitimate reason which could justify a difference in treatment. However, it was a rather abstract aim and a broad variety of concrete measures could be used to implement it. Where the Contracting States’ margin of appreciation was narrow, as in the present case, the principle of proportionality between the means employed and the aim sought to be realised did not merely require the measure chosen to be suitable for realising the aim; it also had to be shown that it was necessary to exclude homosexual couples from the scope of the legislation in order to achieve that aim. The Government had not advanced any arguments that would support such a conclusion and had therefore not advanced convincing and weighty reasons justifying the narrow interpretation of the provision in question.

Judge Grabenwarter expressed a dissenting opinion, which is annexed to the judgment.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
Joanna Reynell (telephone: +00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
Fax: +00 33 (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.

[fn1]  Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[fn2]  This summary by the Registry does not bind the Court.