Stübing v Germany
| Judge | JUDGES JUNGWIERT (PRESIDENT),ZUPANCIC,VILLIGER,POWER-FORDE,YUDKIVSKA,NUßBERGER,POTOCKI |
| Judgment Date | 12 April 2012 |
Private and family life – Sexual self-determination – Incest – Consensual sexual intercourse between consanguine adult siblings – Applicant having consensual sexual relationship with biological sister – Relationship resulting in four children – Domestic law prohibiting consensual sexual intercourse between consanguine adult siblings – Applicant being convicted of incest – Whether applicant’s criminal conviction violating his right to respect for his private and family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant was born in 1976. At the age of seven he was adopted. In 2000, he re-established contact with his family of origin and discovered that he had a biological sister born in 1984. Following their mother’s death in 2000, the relationship between the two siblings intensified and, from 2001, the applicant and his sister had consensual sexual intercourse. They lived together for several years and had four children. In 2002, the district court convicted the applicant of 16 counts of incest, gave him a suspended sentence of imprisonment and put him on probation. The conviction was based on s 173(2) (set out at para 27, below) of the Criminal Code, which prohibited consensual sexual intercourse between consanguine adult siblings. In 2004 and 2005, the district court convicted the applicant of the same offence and on each occasion imposed a custodial sentence. With regard to the applicant’s sister, who had been charged with the same offence, the court, relying on an expert opinion, found that she had a serious personality disorder and mild learning disabilities which had led to her being only partially liable for her actions. Accordingly, the court did not impose a sentence on her. The Court of Appeal rejected the applicant’s appeal on points of law. The applicant lodged a constitutional complaint, arguing, in particular, that s 173(2) of the Criminal Code had violated his right to sexual self-determination, had discriminated against him and was disproportionate. In addition, he contended that it interfered with the relationship between parents and their children born out of incestuous relationships. A majority of the Federal Constitutional Court rejected the complaint as being unfounded. Having analysed the arguments put forward in favour of and against criminal liability and relying on an expert opinion, the court concluded that the imposition of criminal liability was justified by a combination of objectives, including the protection of self-determination, public health and the family, set against the background of a common
conviction that incest should be subject to criminal liability. The court considered that sexual relationships between siblings could seriously damage family structures and, as a consequence, society as a whole. The applicant complained to the European Court of Human Rights that his criminal conviction had violated his right to respect for his private and family life under art 8 (set out at para 31, below) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention). The respondent state did not contest that the applicant’s criminal conviction had interfered with his right to the enjoyment of his private and family life but contended that that interference was justified under art 8(2) as being necessary in a democratic society in the interest of the prevention of disorder and for the protection of morals.
Held – A number of factors had to be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the state when determining any case under art 8 of the Convention. Where a particularly important facet of an individual’s existence or identity was at stake, the margin allowed to the state would normally be restricted. Accordingly, there had to exist particularly serious reasons before interference on the part of public authorities concerning a most intimate aspect of private life, such as the manifestation of a person’s sexuality, could be legitimate for the purposes of art 8(2). Where, however, there was no consensus within the member states of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raised sensitive moral or ethical issues, the margin would be wider. A broad consensus between member states transpired that sexual relationships between siblings were neither accepted by the legal order nor by society as a whole. Conversely, there was no sufficient empirical support for the assumption of a general trend towards a decriminalisation of such acts. Moreover, the instant case concerned a question about the requirements of morals. Thus the domestic authorities enjoyed a wide margin of appreciation in determining how to confront incestuous relationships between consenting adults, notwithstanding the fact that that decision concerned an intimate aspect of an individual’s private life. The Federal Constitutional Court had concluded that the imposition of criminal liability was justified by a combination of objectives, including the protection of the family, self-determination and public health. Those aims were not unreasonable and were relevant in the instant case. Thus the applicant’s criminal conviction corresponded to a pressing social need. Having particular regard to the careful consideration with which the Federal Constitutional Court had approached the instant case and to the wide margin of appreciation enjoyed by the state in the absence of a consensus within the member states of the Council of Europe on the issue of criminal liability, the domestic courts had stayed within their margin of appreciation when convicting the applicant of incest. It followed that there was no violation of art 8 of the Convention (see paras 59–61, 63 and 65–67, below);
Dudgeon v UK (1981) 4 EHRR 149, Norris v Ireland [1988] ECHR 10581/83, Goodwin v UK (2002) 13 BHRC 120 and Evans v UK (2007) 22 BHRC 190 considered.
Cases citedA v Ireland[2011] 3 FCR 244, ECt HR.
Dudgeon v UK (1981) 4 EHRR 149, [1981] ECHR 7525/76, ECt HR.
Evans v UK (2007) 22 BHRC 190, ECt HR.
Gafgen v Germany (2010) 28 BHRC 463, ECt HR.
Goodwin v UK (2002) 13 BHRC 120, ECt HR.
Handyside v UK (1976) 1 EHRR 737, [1976] ECHR 5493/72, ECt HR.
Laskey v UK [1997] ECHR 21627/93, ECt HR.
Norris v Ireland [1988] ECHR 10581/83, ECt HR.
Oneryildiz v Turkey (2004) 18 BHRC 145, ECt HR.
Pretty v UK (2002) 12 BHRC 149, ECt HR.
Sommerfeld v Germany[2003] 2 FCR 647, ECt HR.
Zaunegger v Germany [2009] ECHR 22028/04, ECt HR.
ApplicationIn an application (no 43547/08) to the European Court of Human Rights against Germany on 3 September 2008 Patrick Stübing complained that his criminal conviction for the offence of incest had violated his right to respect for his private and family life protected by art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The facts are set out in the judgment of the court.
12 April 2012. The EUROPEAN COURT OF HUMAN RIGHTS (FIFTH SECTION) delivered the following judgment.
JUDGMENT. Procedure1. The case originated in an application (no 43547/08) against the Federal Republic of Germany lodged with the court under art 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969) by a German national, Mr Patrick Stübing (the applicant), on 3 September 2008.
2. The applicant was at first represented by Mr E Wilhelm, a lawyer practising in Dresden, and by Mr K Amelung, Mr S Breitenmoser and Mr J Renzikowski, university professors teaching in Dresden, Basel and Halle, respectively; subsequently, he was represented by Mr J Fromling, a lawyer practising in Zwenkau. The German government (the government) were represented by their agent, Mr H-J Behrens, of the Federal Ministry of Justice.
3. The applicant alleged that his criminal conviction had violated his right to respect for his private and family life.
4. On 17 June 2010 the President of the Fifth Section decided to give notice of the application to the government. It was also decided to rule on the admissibility and merits of the application at the same time (art 29(1)).
The facts I. The circumstances of the case5. The applicant was born in 1976 and lives in Leipzig.
6. At the age of three, the applicant was placed in a children’s home and later in the care of foster parents. At the age of seven, he was adopted by his foster parents and was given their family name. After that, he did not have any contact with his family of origin.
7. In 1984, the applicant’s biological sister, SK, was born. The applicant was unaware of his sister’s existence until he re-established contact with his family of origin in 2000. Following their mother’s death in December 2000, the relationship between the siblings intensified. As from January 2001, the applicant and his sister had consensual sexual intercourse. They lived together for several years.
8. In 2001, 2003, 2004 and 2005 four children were born to the couple. Following the birth of the fourth child, the applicant underwent a vasectomy. The three older children were placed in the care of foster families. The youngest daughter lives with her mother.
9. On 23 April 2002 the Borna District Court convicted the applicant of 16 counts of incest (s 173(2) of the German Criminal Code, see ‘Relevant domestic law’, below), gave him a suspended sentence of one...
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