PROCEDURE

The case originated in an application (no. 40016/98) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Siegmund Karner (“the applicant”), on 24 July 1997.

The applicant was represented by Lansky and Partner, a law firm in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Winkler.

The applicant alleged, in particular, that the Supreme Court's decision not to recognise his right to succeed to a tenancy after the death of his companion amounted to discrimination on the ground of his sexual orientation in breach of Article 14 of the Convention taken in conjunction with Article 8.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).

By a decision of 11 September 2001 the Chamber declared the application partly admissible.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 7 December 2001 the President of the Chamber granted ILGA-Europe (The European Region of the International Lesbian and Gay Association), Liberty and Stonewall leave to intervene as third parties (Article 36 § 2 of the Convention and Rule 61 § 3). The third parties were represented by Mr R. Wintemute.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1955 and lived in Vienna.

From 1989 the applicant lived with Mr W., with whom he had a homosexual relationship, in a flat in Vienna, which the latter had rented a year earlier. They shared the expenses on the flat.

In 1991 Mr W. discovered that he was infected with the Aids virus. His relationship with the applicant continued. In 1993, when Mr W. developed Aids, the applicant nursed him. In 1994 Mr W. died after designating 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 action. It considered that section 14(3) of the Rent Act (Mietrechtsgesetz), which provided that family members had a right to succeed to a tenancy, was also applicable to a homosexual relationship.

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

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 at the time it was enacted, and the legislature's intention in 1974 was not to include persons of the same sex.

On 26 September 2000 the applicant died.

On 11 November 2001 the applicant's lawyer informed the Court of the applicant's death and that his mother had waived her right to succeed to the estate. He asked the Court not to strike the application out of its list before the public notary handling the applicant's estate had traced other heirs.

On 10 April 2002 the applicant's lawyer informed the Court that the public notary had instigated enquiries in order to trace previously unknown heirs who might wish to succeed to the estate.