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FIFTH
SECTION
CASE OF STÜBING v. GERMANY
(Application
no. 43547/08)
JUDGMENT
STRASBOURG
12
April 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Stübing v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Karel Jungwiert,
President,
Boštjan M. Zupančič,
Mark
Villiger,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 13 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43547/08) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Patrick Stübing (“the applicant”), on 3 September
2008.
- 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. Frömling, 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.
- The
applicant alleged that his criminal conviction had violated his right
to respect for his private and family life.
- 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 (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Leipzig.
- 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.
- In
1984, the applicant’s biological sister, S. K., 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.
- 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.
- On
23 April 2002 the Borna District Court (Amtsgericht) convicted
the applicant of sixteen counts of incest (Section 173 § 2 (2)
of the Criminal Code, see “Relevant domestic law”,
below), gave him a suspended sentence of one year’s
imprisonment and put him on probation.
- On
6 April 2004 the Borna District Court convicted the applicant of
another count of the same offence and sentenced him to ten months’
imprisonment.
- On
10 November 2005 the Leipzig District Court convicted the applicant
of two counts of incest and sentenced him to one year and two months’
imprisonment. Including the sentence of 6 April 2004 and one further
previous criminal conviction, the District Court imposed a summary
sentence of one year and four months’ imprisonment. The court
considered the fact that the applicant had suffered physical abuse by
his father during the decisive first three years of his childhood to
be a mitigating factor. Furthermore, he had made a confession and had
been affected by the media coverage of his case. Lastly, he had
previously been attacked during detention. On the other hand, the
court considered as aggravating factors the fact that the applicant
had reoffended in spite of his previous convictions and that he had
had unprotected intercourse with his sister even though he had to
have been aware of the risk of further pregnancies.
- With
regard to the applicant’s sister, S. K., who had been charged
with the same offence, the Leipzig District Court, relying on an
expert opinion, found as follows:
“The accused, K., has a very timid, withdrawn and
dependant personality structure. This personality structure, taken
together with [an] unsatisfying family situation, led to her being
considerably dependant on the applicant. In particular, after the
death of their mother, she experienced this dependency to an extent
that she felt that she could not live without him.”
The
District Court concluded that this serious personality disorder, seen
in conjunction with established mild learning disabilities, had led
to her being only partially liable for her actions. Accordingly, the
court did not impose a sentence on her.
- On
30 January 2007 the Dresden Court of Appeal rejected the applicant’s
appeal on points of law. The court considered that there were certain
doubts as to the constitutionality of the relevant provision.
However, it determined that these were not sufficient to call the
validity of the law into question.
- On
22 February 2007 the applicant lodged a constitutional complaint,
arguing, in particular, that Section 173 § 2 (2) of the Criminal
Code had violated his right to sexual self-determination, had
discriminated against him and was disproportionate. In addition, it
interfered with the relationship between parents and their children
born out of incestuous relationships.
- On
26 February 2008 the Federal Constitutional Court, by seven votes to
one, rejected the complaint as being unfounded. The decision was
based on the following considerations. With the criminal provision of
Section 173 § 2 (2) of the Criminal Code, the legislature had
restricted the right to sexual self-determination of biological
siblings by making sexual intercourse between them a punishable
offence. This limited the conduct of one’s private life by
penalising certain forms of expressions of sexuality between persons
close to one another. However, the provision did not infringe the
core area of private life. Sexual intercourse between siblings could
have effects on the family and society and carry consequences for
children resulting from the relationship. As the criminal law
prohibited only a narrowly defined scope of behaviour and only
selectively curtailed opportunities for intimate contact, the parties
concerned had not been placed in a position which would be
incompatible with respect for human dignity.
- The
legislator had pursued objectives that were not constitutionally
objectionable and that, in any event, in their totality legitimised
the limitation on the right to sexual self-determination. The primary
ground for punishment was the protection of marriage and the family.
Empirical studies had showed that the legislature was not
overstepping its margin of appreciation when assuming that incestuous
relationships between siblings could seriously damage the family and
society as a whole. Incestuous relationships resulted in overlapping
familial relationships and social roles and, thus, could damage the
structural system of family life. The overlapping of roles did not
correspond with the image of a family as defined by the Basic Law. It
seemed clear, and did not appear to be far fetched to assume,
that the children of an incestuous relationship might have
significant difficulties in finding their place within the family
structure and in building a trusting relationship with their closest
caregivers. The function of the family, which was of primary
importance for the community, would be decisively damaged if the
required family structures were shaken by incestuous relationships.
- Insofar
as the criminal provision was justified by reference to the
protection of sexual self-determination, this objective was also
relevant between siblings. The objection that this right was
sufficiently protected by the specific provisions on offences against
sexual self-determination overlooked the fact that Section 173 of the
Criminal Code addressed specific situations arising from the
interdependence and closeness of family relationships, as well as
difficulties in the classification of, and defence against,
transgressions of sexual self-determination in that context.
- The
legislature had additionally based its decision on eugenic grounds
and had assumed that the risk of significant damage to children who
were the product of an incestuous relationship could not be excluded.
In both medical and anthropological literature, which was supported
by empirical studies, reference had been made to the particular risk
of the occurrence of genetic defects.
- The
impugned criminal provision was justified by the sum of the
above-mentioned objectives against the background of a common
conviction that incest should be subject to criminal liability. This
conviction was also evident on the international level. As an
instrument for protecting self-determination, public health, and
especially the family, the criminal provision fulfilled a signalling,
norm-reinforcing and, thus, a general preventive function, which
illustrated the values set by the legislature and, therefore,
contributed to their maintenance.
- The
impugned provision complied with the principle of proportionality.
The criminalisation of sibling incest was suitable for promoting the
desired objective. This was not put into question by the exemption of
minors from criminal liability (Art. 173 § 3), as the
prohibition of acts of sexual intercourse encompassed a central
aspect of sexual relations between siblings which contravened the
traditional picture of the family and which was further justified by
its potential to produce descendants. Neither was this assessment put
into question by the fact that acts similar to sexual intercourse and
sexual intercourse between same-sex siblings were not subject to
criminal liability, while sexual intercourse between natural siblings
was punishable even in cases were conception was excluded. The same
applied to the objection that the criminal provision was unsuitable
for protecting the structure of the family because it first impacted
on siblings when they typically left the family circle upon reaching
the age of majority.
- The
provision was also necessary. It was true that in cases of sibling
incest guardianship and youth welfare measures came into
consideration. However, these measures did not achieve the same
objectives, as they were aimed at preventing and redressing
violations in specific cases, but did not have any general preventive
effect or reinforce societal norms in the manner achieved through the
law.
- Lastly,
the Federal Constitutional Court considered that the criminal
sanction had not been disproportionate, as the provision had also
allowed the courts to refrain from imposing punishment in cases in
which an accused’s share of the guilt was slight.
- Judge
Hassemer attached a dissenting opinion which was based on the
following considerations. Section 173 § 2 (2) of the Criminal
Code was incompatible with the principle of proportionality. The
provision did not pursue a legitimate aim. From the outset,
considerations of eugenic aspects were not a valid objective for a
criminal law provision. Likewise, neither the wording of the
provision nor the statutory context indicated that the provision was
aimed at protecting sexual self-determination. Lastly, the
prohibition on sibling incest was not justified by the protection of
marriage and the family, as it only prohibited the act of sexual
intercourse, but did not prohibit any other sexual acts between
siblings or sexual intercourse between siblings of the same sex or
between relatives who were not blood related. If the criminal
provision were actually aimed at protecting the family from sexual
acts, it would also extend to these acts that were likewise damaging
to the family. The evidence seemed to indicate that the provision as
set out did not protect any specific rights, but was solely aimed at
moral conceptions. However, it was not a legitimate aim for a
criminal provision to build or maintain common moral standards.
- Furthermore,
the provision was not suited to attain the objectives pursued. As
regards the protection of the family from the damaging effects of
incestuous sexual acts, it was not far-reaching enough, as it did not
encompass similarly damaging behaviour and, moreover, acts committed
by non-blood-related siblings. It was too far-reaching because it
encompassed behaviour that could not (any longer) have damaging
effects on the family because of children having reached the age of
majority and being about to leave the family circle.
- In
addition, there were other measures available that could have
similarly or even more effectively guaranteed the protection of the
family, such as youth welfare measures and measures taken by the
family courts. Finally, the impugned provision was excessive, at it
did not provide for a limitation of criminal liability resulting from
behaviour which did not endanger any of the possible objects of
protection.
- This
decision was served on the applicant’s counsel on 13 March
2008. On 4 June 2008 the applicant started serving his prison
sentence. He was released on probation on 3 June 2009.
II. RELEVANT DOMESTIC LAW
- Section 173 of the German Criminal Code reads as
follows:
Incest
“(1) Whoever performs an act of sexual
intercourse with a consanguine descendant shall be punished with
imprisonment for no more than three years or a fine.
(2) Whoever performs an act of sexual
intercourse with a consanguine relative in an ascending line shall be
punished with imprisonment for no more than two years or a fine; this
shall also apply if the relationship as a relative has ceased to
exist. Consanguine siblings who perform an act of sexual intercourse
with each other shall be similarly punished.
(3) Descendants and siblings shall not be
punished pursuant to this provision if they were not yet eighteen
years of age at the time of the act.”
Section 153 of the Code of Criminal Procedure reads as follows:
“(1) If a less serious criminal offence
is the subject of the proceedings, the public prosecution office may
dispense with prosecution with the consent of the ... court if the
perpetrator’s guilt is considered to be minor and [if] there is
no public interest in prosecution ...
(2) If charges have already been preferred,
the court, with the consent of the public prosecution office and the
accused, may terminate the proceedings at any stage thereof subject
to the requirements of subsection (1) ...”
III. COMPARATIVE LAW
- Out
of thirty-one Council of Europe Member States, sixteen States
(Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus,
Czech Republic, Finland, Greece, Iceland, Ireland, Liechtenstein,
Macedonia, Moldova, San Marino and Slovakia) the performance of
consensual sexual acts between adult siblings is considered a
criminal offence, while in fifteen of them (Armenia, Azerbaijan,
Belgium, Estonia, Georgia, Latvia, Lithuania, Luxembourg, Malta,
Monaco, Montenegro, Portugal, Serbia, Slovenia and Ukraine) it is not
punishable under criminal law. The fact that one of the siblings was
adopted or raised in another household does not in general seem to
have any impact on criminal liability as long as the siblings share
at least one biological parent. In a few countries (notably Iceland,
Moldova and Slovenia) the ban on incest extends also to adoptive
siblings.
- It
would appear that there are no plans to abolish the ban in the
countries concerned where the laws have generally been in force for
decades. In several countries there is even a tendency to widen the
existing notion of incest or to increase the penalties (e. g.
Belgium, Croatia and the Czech Republic). Conversely, incest
between adult siblings has been decriminalised in Portugal in 1983
and in Serbia in 2006.
- According
to an expert report prepared by the Max Planck Institute for Foreign
and International Criminal Law in November 2007 in the course of the
domestic proceedings, consensual sexual acts between siblings were
criminalised in eight further countries (Denmark, Italy, Poland,
Romania, Sweden, Switzerland, Hungary and the United Kingdom); and
were not subject to criminal liability in five further countries
(France, the Netherlands, the Russian Federation, Spain and Turkey).
The international political discussion on this issue was
characterised by a tendency to decriminalise the commitment of such
acts. The Max Planck Institute further observed that, even in those
countries in which consensual acts between siblings were not subject
to criminal liability, siblings were not allowed to marry.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that his criminal conviction had violated his
right to respect for his private and family life as provided in
Article 8 of the Convention, which reads 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.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the applicant
- The
applicant submitted that his criminal conviction had interfered with
his right to respect for his family life by preventing him from
participating in the upbringing of his children. Furthermore, the
impugned judgment and the underlying criminal liability had
interfered and continued to interfere with his sexual life, which
formed a central element of his private life.
- There
had been no pressing social need justifying his criminal conviction.
A majority of legal scholars in Germany had advocated the repeal of
Section 173 of the Criminal Code. In a number of State Parties to the
Convention, sexual intercourse between consanguine siblings was not
subject to criminal liability.
- The
reasons adduced by the Federal Constitutional Court had not sufficed
to assume the existence of a pressing social need justifying the
applicant’s conviction in this individual case. The criminal
liability imposed on incest was not suited to protect society as a
whole from genetic diseases, as scientific research had demonstrated
that incestuous relationships did not lead to a spreading of genetic
diseases within society. Furthermore, other individuals, who ran a
much higher risk of transferring genetic defects – such as
women past the age of forty or known carriers of a genetic defect –
were not forbidden to procreate. The eugenic motivation had its roots
in the racist ideology of National Socialism. Neither could the ban
be justified by relying on the interests of potential offspring, as
it was impossible to assess the interest of potential offspring in
not being born.
- The
criminal ban on incest was not suited to protect the family unit, as
it was inconsistent. There was no valid reason to limit criminal
liability to adult siblings, who were generally about to leave the
family circle, even though the potential harm done by incestuous
relationships depended on the intensity of the family relationship.
On the other hand, there was no valid reason to exempt step-, foster-
or adoptive children from liability. The same applied for the
exclusion from liability of forms of sexual contact other than sexual
intercourse.
- Contrary
to the Government’s submissions, incest between siblings was
not liable to jeopardise or destroy the family unit, but had to be
regarded as a symptom of already existing chaotic and dysfunctional
family structures. In the instant case, the applicant had been
separated from his family of origin as a young child. As the siblings
had not been raised together, the biological inhibition against
incest could not have developed. There were no other existing family
members who could have been harmed by the incest – on the
contrary, the incestuous relationship created a new family unit which
had not existed before. Furthermore, the Federal Constitutional Court
had failed to take into account the fact that the family relationship
between the applicant and his biological sister had been dissolved by
the former’s adoption and by their long-standing separation.
- Neither
was the imposition of criminal liability suited to protect the
interests of prospective offspring, as incest between siblings –
in contrast with incest between parent and descendant – did not
lead to overlapping family roles.
- The
applicant’s conviction had not been suited to protect his
sister’s right to sexual self-determination. There was no
indication that Section 173 of the Criminal Code was aimed at
protecting the weaker party in a relationship. On the contrary, such
cases fell within the range of criminal provisions protecting sexual
self-determination. In the instant case, the sexual intercourse had
been consensual and there had been no indication of any form of
sexual abuse. The courts had not considered the case in question to
be an impairment of the applicant’s sister’s right of
sexual self determination. Neither had the applicant taken
advantage of a stronger position, which was demonstrated by the fact
that his sister had also been found to be guilty. It followed that
she could not be regarded as having been the victim of a punishable
act.
- Finally,
the criminal conviction could not be justified by the protection of
morals. Relying on the Court’s rulings in the cases of Dudgeon
(Dudgeon v. the United Kingdom, 22 October 1981, §
52, Series A no. 45) and Norris (Norris v. Ireland, 26
October 1988, § 46, Series A no. 142), the applicant pointed out
that particularly serious reasons had to be put forward to justify
interference into a most intimate aspect of one’s private life.
The applicant’s punishment had not been necessary to maintain
society’s taboo about incest. It could not be expected that
this taboo would weaken if the applicant had not been punished for
having had sexual intercourse with his sister. The applicant and his
sister had constantly avoided drawing public attention to themselves.
Moral indignation from certain individuals as regards the commitment
of an incestuous act could not on its own warrant the application of
penal sanctions. The removal of criminal liability would not imply
that the State approved of the commitment of such acts.
- The
applicant’s conviction had been disproportionate having regard
to the circumstances of this particular case, in particular, the fact
that the applicant and his sister had not been raised together and
had thus been prevented from developing sexual inhibitions; that the
applicant had been punished before; that the siblings had developed a
loving relationship; the considerable burden the applicant’s
conviction had imposed on his four children; and the applicant’s
infertility, which prevented further procreation.
- The
applicant finally submitted that the legislator, when enacting the
pertinent legislation, had considered that cases such as the present
one could be dealt with by dispensing with prosecution pursuant to
Section 153 of the Code of Criminal Procedure, an option which the
authorities had failed to consider in the instant case.
2. Submissions by the Government
- The
Government did not contest that the applicant’s criminal
conviction had interfered with his right to the enjoyment of his
private and family life. They considered, however, that this
interference had been justified under paragraph 2 of Article 8 as
being necessary in a democratic society in the interest of the
prevention of disorder and for the protection of morals.
- The
domestic authorities had stayed within their margin of appreciation
when sanctioning consensual sexual intercourse amongst consanguine
siblings, as well as when punishing the applicant in the instant
case. Referring to the expert report prepared by the Max Planck
Institute (see paragraph 30, above), the Government submitted that
the differing approach to liability for sexual intercourse between
siblings within the Convention’s area of application clearly
showed that the national margin of appreciation should be broad with
regard to this issue, which was strongly influenced by moral and
cultural traditions. It followed that the Court should restrict
itself to deciding whether the interference with Convention rights
had exceeded every acceptable margin of appreciation.
- When
the German legislator, in the early 1970s, had considered a reform of
the impugned legislation, a special committee set up by the Bundestag
had reached the conclusion that the provision should be maintained in
the interests of the protection of marriage and the family, of the
protection of the weaker partner in a relationship and of the
prevention of genetic damage. All of these aims remained relevant and
had justified criminal liability being imposed on the applicant.
- The
risk for the family structure was primarily created by the inversion
of social roles within the family, which existed independently of
whether and how closely the family actually lived together. The
report by the Max Planck Institute had confirmed that incestuous
relationships were liable to deepen and exacerbate existing
problematic socio-psychological relationships within a family. The
damaging effect on the family structure would have a direct negative
effect on society. The legislator had thus been entitled to assume
that sexual intercourse between siblings, although consensual,
created knock-on effects which damaged the family and society as a
whole.
- Section
173 of the Criminal Code had been targeted at protecting those
persons who became involved in a relationship due to the specific and
typical interdependence which was rooted in the family structure, and
their resulting difficulty in asserting and defending themselves from
a stronger partner. This aim was not fully coterminous with the aim
of protecting sexual self-determination, but rather dealt with a
structural imbalance regularly present in such relationships. This
had been demonstrated by the instant case, in which the Leipzig
District Court, in its judgment dated 10 November 2005, and
relying on an expert opinion, had established that the applicant’s
sister was already dependent on him to an extent that diminished her
criminal liability. The fact that the vulnerable person in the
relationship had also been subject to criminal liability did not call
this into question, as long as that circumstance had been
appropriately taken into account during the criminal proceedings.
- There
was empirical evidence that the risk of genetic damage among children
from an incestuous relationship was significantly increased. This
aspect alone would not justify criminalisation of consensual incest
between siblings, but could serve as supporting justification for
imposing criminal liability.
- Finally,
Section 173 of the Criminal Code had served to maintain the taboo
against incest, which had cultural and historical roots and thus
served to protect morals within society as a whole. Relying on the
reasoning delivered by the Federal Constitutional Court, the
Government submitted that imposing criminal liability for incest was
a suitable means of reflecting societal convictions. It was such
considerations, in particular, which allowed criminal sanctions to be
defined as a pressing social need and which justified interference
with the rights protected in Article 8 of the Convention.
- The
design of the criminal provision had not exceeded what was necessary
in a democratic society. The prohibition of sexual intercourse
between consanguine siblings was not contrary to the protective goals
of the legislature. This type of conduct endangered family structures
in a different way than other conduct of a sexual nature, or sexual
intercourse between step- or adoptive siblings. Likewise, the
exclusion of minors from criminal liability was justified by the fact
that these cases regularly involved difficult personal situations
resulting from the development of those minors, which justified the
decision to waive criminal proceedings.
- In
general, criminal proceedings could have a positive effect within the
scope of therapeutically addressing the effect of incest. Other
measures at the authorities’ disposal, such as measures taken
by the family courts or youth offices, did not go far enough compared
with criminal sanctions, as they lacked a general preventive effect
or ability to reinforce societal norms.
- Furthermore,
the range of penalties for sexual intercourse between siblings was
moderate. Public prosecutors had a number of instruments available to
them to react to specific situations, which ranged from the
dispensing with a prosecution pursuant to Section 153 of the Code of
Criminal Procedure to waiving the application of any penalty imposed
by a court.
- The
applicant’s criminal conviction had also been justified by the
circumstances of this individual case. The Leipzig District Court had
dealt extensively with the facts that spoke in favour of the
applicant. That court had given detailed reasons why it found it
necessary to impose a prison sentence on the applicant. In this
respect, the court had been allowed to take into account the fact
that the applicant had reoffended in spite of his previous
convictions for the same offence.
3. Assessment by the Court
- The
Court does not exclude that the applicant’s criminal conviction
had an impact on his family life and, possibly, attracted protection
under Article 8 of the Convention, as he was forbidden to have sexual
intercourse with the mother of his four children. In any event, it is
common ground between the parties that the applicant’s criminal
conviction interfered with his right to respect for his private life,
which includes his sexual life (see Dudgeon, cited
above, § 41 and Norris, cited above, § 38; also
compare Laskey, Jaggard and Brown v. the United
Kingdom, 19 February 1997, § 36, Reports of
Judgments and Decisions 1997 I). The Court considers that
there is no reason to hold otherwise and endorses this assessment.
The applicant’s criminal conviction thus interfered with the
applicant’s right to respect, at least, for his private life.
- An
interference with the exercise of the right to respect for an
applicant’s private life will not be compatible with Article 8
§ 2 unless it is “in accordance with the law”, has
an aim or aims that is or are legitimate under that paragraph and is
“necessary in a democratic society” for the aforesaid aim
or aims (see, among many other authorities, Pretty v. the United
Kingdom, no. 2346/02, § 68, ECHR 2002 III).
- The
Court notes that the applicant’s criminal conviction was based
on Section 173 § 2 (2) of the German Criminal Code, which
prohibits consensual sexual intercourse between consanguine adult
siblings and which is aimed at the protection of morals and of the
rights of others. It follows that the measure in question pursued a
legitimate aim within the meaning of paragraph 2 of Article 8.
- It
thus remains to be determined whether the applicant’s
conviction was necessary in a democratic society. In this respect,
the Court must examine whether there existed a pressing social need
for the measure in question and, in particular, whether the
interference was proportionate to the legitimate aim pursued, regard
being had to the fair balance which has to be struck between the
relevant competing interests at stake and the margin of appreciation
enjoyed by the State (see, among many other authorities, A, B and
C v. Ireland [GC] no. 25579/05, § 230, ECHR
2010).
- The
Court reiterates that a number of factors must be taken into account
when determining the breadth of the margin of appreciation to be
enjoyed by the State when determining any case under Article 8 of the
Convention. Where a particularly important facet of an individual’s
existence or identity is at stake, the margin allowed to the State
will normally be restricted (see, for example, Dudgeon, cited
above, § 52; Christine Goodwin v. the United Kingdom
[GC], no. 28957/95, § 90, ECHR 2002-VI; and Evans v.
the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 IV).
Accordingly, the Court has found that there must 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, can be legitimate for
the purposes of paragraph 2 of Article 8 (see Dudgeon and
Norris, both cited above, §§ 52 and 46,
respectively).
- Where,
however, there is 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 raises sensitive moral or ethical issues,
the margin will be wider. By reason of their direct and continuous
contact with the vital forces of their countries, the State
authorities are, in principle, in a better position than the
international court to give an opinion, not only on the “exact
content of the requirements of morals” in their country, but
also on the necessity of a restriction intended to meet them (see,
among other authorities, A, B and C, cited above, § 232,
and Handyside v. the United Kingdom, 7 December 1976, §
48, Series A no. 24 ).
- Applying
the principles set out above to the instant case, the Court observes
that there is no consensus between the member States as to whether
the consensual commitment of sexual acts between adult siblings
should be criminally sanctioned (see paragraphs 28-30, above). Still,
a majority of altogether twenty-eight out of the forty-four States
reviewed provide for criminal liability. The Court further notes that
all the legal systems, including those which do not impose criminal
liability, prohibit siblings from getting married. Thus, a broad
consensus transpires that sexual relationships between siblings are
neither accepted by the legal order nor by society as a whole.
Conversely, there is no sufficient empirical support for the
assumption of a general trend towards a decriminalisation of such
acts. The Court further considers that the instant case concerns a
question about the requirements of morals. It follows from the above
principles that the domestic authorities enjoy a wide margin of
appreciation in determining how to confront incestuous relationships
between consenting adults, notwithstanding the fact that this
decision concerns an intimate aspect of an individual’s private
life.
- The
Court reiterates that in cases arising from individual applications
it is not the Court’s task to examine domestic legislation in
the abstract. Rather, it must examine the manner in which the
relevant legislation was applied to the applicant in the particular
circumstances of the individual case (see Pretty, cited
above, § 75, ECHR 2002 III; Sommerfeld v. Germany [GC],
no. 31871/96, § 86, ECHR 2003-VIII; and Zaunegger v.
Germany, no. 22028/04, § 45, 3 December 2009). Furthermore,
it is not the Court’s task to rule on the degree of individual
guilt or to determine the appropriate sentence of an offender, those
being matters falling within the exclusive jurisdiction of the
national criminal courts (see Gäfgen v. Germany [GC], no.
22978/05, § 123, ECHR 2010 ..., and Öneryıldız
v. Turkey [GC], no. 48939/99, § 116, ECHR 2004 XII).
The Court will therefore limit its examination to the question of
whether the applicant’s criminal conviction in this individual
case corresponded to a pressing social need, as required by Article 8
§ 2 of the Convention.
- The
Court observes that the Federal Constitutional Court, having analysed
the arguments put forward in favour of and against criminal liability
and relying on an expert opinion, 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, set against the background of a common conviction that incest
should be subject to criminal liability. The Federal Constitutional
Court considered that sexual relationships between siblings could
seriously damage family structures and, as a consequence, society as
a whole. According to the court, criminal liability was further
justified by reference to the protection of sexual
self determination. By addressing specific situations arising
from the interdependence and closeness of family relationships,
section 173 of the Criminal Code could avoid difficulties in the
classification of, and defence against, transgressions of sexual
self-determination in that context.
- The
Court notes that according to the findings of the Leipzig District
Court, the applicant’s sister first entered into a sexual
relationship with the applicant following their mother’s death.
At that time, the sister was sixteen years of age; the applicant was
her senior by seven years. According to an expert opinion prepared
before the District Court, the sister suffered from a serious
personality disorder which, together with an unsatisfying family
situation and mild learning difficulties, led to her being
considerably dependent on the applicant. The District Court concluded
that the sister was only partially liable for her actions. These
findings were confirmed by the Dresden Court of Appeal and by the
Federal Constitutional Court.
- The
Court considers that the above-mentioned aims, which had been
expressly endorsed by the democratic legislator when reviewing the
relevant legislation in the 1970s (see paragraph 46 above), appear
not to be unreasonable. Furthermore, they are relevant in the instant
case. Under these circumstances, the Court accepts that the
applicant’s criminal conviction corresponded to a pressing
social need.
- Having
particular regard to the above considerations and to the careful
consideration with which the Federal Constitutional Court approached
the instant case, which is demonstrated by the thoroughness of the
examination of the legal arguments put forward by the applicant and
further highlighted by the fact that a detailed dissenting opinion
was attached to the text of the decision, 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 Court concludes that the domestic courts
stayed within their margin of appreciation when convicting the
applicant of incest.
- There
has accordingly been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 12 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Karel Jungwiert Registrar President
