Johanna Westeson - The ICHRP

efused to let him see his children. He argued that the decision of the Court of Appeal had
been based on his sexual orientation, which both violated his right to respect for family life
and constituted unlawful discrimination under the Convention.
The Court found that there had been a difference in treatment of the father and the mother,
which was based on the applicant’s sexual orientation. It established that ‘sexual
orientation’ is “a concept which is undoubtedly covered by Article 14 of the Convention”
(para 28). The father’s homosexuality had been a decisive factor in the decision of the
Portuguese court. While the decision pursued a legitimate aim – the protection of the rights
and health of the child – the differentiated treatment lacked objective or reasonable
justification. The Court accordingly found that there had been a violation of Article 8 taken
together with Article 14. 39
Four years later the issue of sexual orientation discrimination arose in a different situation.
In Karner v. Austria 40 the applicant had survived his partner, Mr. W, who died in 1994.
The couple had lived together in a flat which was rented in W’s name, and upon W’s death
the landlord brought proceedings against the applicant for termination of the tenancy. The
applicant contested the claim, arguing that he had the right to succeed to the tenancy in
accordance with Austrian law which provided for this right to unmarried life companions.
The Austrian Supreme Court found that the notion ‘life companion’ did not include samesex
partners and that the landlord therefore could terminate the lease. The applicant
claimed to have been the victim of discrimination on the basis of his sexual orientation and
that Austria therefore had violated Article 14 in conjunction with Article 8. The Court
agreed. It found that even though protection of the traditional family as such may justify
different treatment, the measure has to be proportional to the aim sought. The Court stated
in this regard:
In cases in which the margin of appreciation afforded to States is narrow, as is the position
where there is a difference in treatment based on sex or sexual orientation, the principle of
proportionality does not merely require that the measure chosen is in principle suited for
realising the aim sought. It must also be shown that it was necessary in order to achieve that
aim to exclude certain categories of people – in this instance persons living in a homosexual
relationship – from the scope of application of [the relevant rule]. (para 41)
The Court did not find that Austria had presented legitimate reasons to exclude the group
same-sex partners from the right to succeed to tenancy and therefore, Article 14 taken
together with Article 8 had been violated.
In 2010, the Court came to the same conclusion in a case with similar circumstances. In
Kozak v. Poland, 41 the applicant had been denied succession to the tenancy after his
deceased same-sex partner on grounds specifically related to his sexual orientation. Poland
was found by the Court to have violated Article 8 in conjunction with Article 14.
39 Worth noting is that the Court did not discuss or explore whether sexual orientation actually constitutes a
ground for discrimination as prohibited by Article 14 but simply stated that this is the case. Due to the fact
that this was the first time that the Court made clear that sexual orientation is covered by the protection under
Article 14, the case is referred to as an important precedent in this regard.
40 Application no. 40016/98, decided on 24 July 2003.
41 Application no. 13102/02, decided on 2 March 2010.
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