Application no. 40016/98 
by Siegmund KARNER 
against Austria

The European Court of Human Rights, sitting on 11 September 2001 as a Chamber composed of

Mr J.-P. Costa, President
 Mr W. Fuhrmann
 Mr P. Kūris
 Mrs F. Tulkens
 Mr K. Jungwiert
 Sir Nicolas Bratza
 Mr K. Traja, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 24 July 1997 and registered on 24 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:



The applicant, Mr Siegmund Karner, is an Austrian national, born in 1955 and living in Vienna. He is represented before the Court by Lansky & Partner, a law firm practising in Vienna.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

From 1989 the applicant lived with Mr W. in a flat in Vienna, which the latter had rented a year earlier. Both being homosexual, they lived together and shared the expenses of the flat.

In 1991 W. discovered that he was infected with the Aids virus. The relationship between W. and the applicant continued. In 1993, when W. developed Aids, the applicant took care of him. In 1994 W. died after having designated the applicant as his heir.

In 1995 the landlord of the flat brought proceedings against the applicant for termination of the tenancy. On 6 January 1996, the Favoriten District Court (Bezirksgericht) dismissed the claim. It considered that section 14 (3) of the Rent Act (Mietrechtsgesetz), which provided that family members had a right to take over a tenancy, was also applicable to a homosexual partnership.

On 30 April 1996, the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed the landlord’s appeal. The court found that section 14 (3) of the Rent Act was designed to protect persons who had lived together for a long time without being married against sudden homelessness. That purpose applied to homosexuals as well as to persons of opposite sexes.

On 5 December 1996, the Supreme Court (Oberster Gerichtshof) granted the landlord’s appeal, quashed the lower court’s decision and terminated the lease. It found that the notion of “life companion” (Lebensgefährte) in section 14 (3) of the Rent Act was to be interpreted as of the time it was enacted, and the legislator’s intention in 1974 was certainly not to include a person of the same sex.

B.  Relevant domestic law

Section 14 of the Rent Act (Mietrechtsgesetz) reads as follows:

“Right to a tenancy in the event of death

(1)  The death of the landlord or a tenant shall not terminate a tenancy.

(2)  On the death of the main tenant of a flat, the persons designated in subsection (3) as being entitled to succeed to the tenancy shall succeed to the tenancy, to the exclusion of other persons entitled to succeed to the estate, unless they have made known to the landlord within 14 days of the main tenant’s death that they do not wish to continue the tenancy. On succeeding to the tenancy, the new tenants shall assume liability for the rent and any obligations that arose during the tenancy of the deceased main tenant. If several persons are entitled to succeed, they shall succeed jointly to the tenancy and become jointly and severally liable.

(3)  The following shall be entitled to succeed to the tenancy for the purposes of subsection (2): a spouse, a life companion, relatives in the direct line including adopted children, and siblings of the former tenant, in so far as such persons have a pressing need for accommodation and have already lived in the accommodation with the tenant as part of the same household. For the purposes of this provision, ‘life companion’ means a person who has lived in the flat with the former tenant until the latter’s death for at least three years, sharing a household on an economic footing like that of a marriage; a life companion shall be deemed to have lived in the flat for three years, if he or she had originally moved into the flat together with the former tenant.”


The applicant complains under Article 14 in conjunction with Article 8 of the Convention that the Supreme Court’s decision amounted to discrimination on the ground of his sexual orientation.

The applicant further complains under Article 1 of Protocol No. 1 that the Supreme Court’s decision violated his right to the peaceful enjoyment of his property. He raises this complaint for the first time in a letter of 25 July 2000.


1. The applicant claims to be a victim of discrimination on the ground of sexual orientation in that the Supreme Court in its decision of 5 December 1996 denied him the status of “life companion” of the deceased W., within the meaning of section 14 of the Rent Act, as a consequence of which he was not entitled to take over W.’s tenancy. He invokes Article 14 of the Convention in conjunction with Article 8, which insofar as relevant provide as follows:


Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 8

“1.  Everyone has the right to respect for his private and family life [and] his home ...

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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

As regards the applicability of Article 14 of the Convention, the Government, referring to the case of Röösli v. Germany (No. 28318/95, Commission decision 15.5.96, D.R. 85, p. 149), submit that the subject matter of the present case does not fall within the ambit of Article 8 § 1 as regards the elements of “private and family life”. It may be left open whether it comes within the ambit of the element “home” because, in any event, there is no breach of Article 14 read in conjunction with Article 8 of the Convention.

The Government acknowledge that the applicant has been treated differently because of his sex since he would have been entitled to succeed to the tenancy if he or his partner had been female. They argue, however, that the difference in treatment was justified as it had an objective and reasonable justification, namely, the protection of the family in the traditional sense. In this respect the Government refer to the case-law of the Commission (No. 11716/85, S. v. United Kingdom, Decision 14.5.1986, D.R. 47, p. 274; No. 28318/95, Röösli v. Germany, loc. cit).

The applicant contests the Government’s view. He maintains that the Government did not furnish any criterion which would justify the difference in treatment of homosexual and heterosexual partners. The pertinent provision of the Austrian Rent Act merely aimed at providing social and financial protection from homelessness for a surviving cohabitee, but did not pursue any family or socio-political aims. In the light of this aim, the difference in treatment could not be justified.

The Court considers that this part of the application raises complex issues of law and fact under Article 14 in conjunction with Article 8 of the Convention, the determination of which should depend on an examination of the merits. It cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

2. The applicant also complains under Article 1 of Protocol No. 1 that the Supreme Court’s decision violated his right to the peaceful enjoyment of his property. Article 1 of Protocol No. 1, insofar as relevant, reads as follows,

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....”

The Court observes, however, that the applicant only raised this complaint for the first time in his letter of 25 July 2000 while the final decision in the case, for the purposes of Article 35 § 1 of the Convention, had been taken on 5 December 1996. It follows that this part of the application has been submitted out of time and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning alleged discrimination on account of his sexual orientation;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa 
 Registrar President