Stubing v Germany [2012]

1. Facts:

• The case involved a consensual sexual relationship between Patrick Stubing and his biological sister, who were raised separately and reunited as adults.

• The siblings had four children together, two of whom were born with disabilities.

• Patrick Stubing was convicted of incest under Section 173 of the German Criminal Code, which prohibits sexual intercourse between siblings.

• The applicants argued that this conviction violated their right to respect for family life under Article 8 of the European Convention on Human Rights (ECHR).

2. Outcome:

• The European Court of Human Rights (ECtHR) upheld the conviction, ruling that Section 173 of the German Criminal Code did not violate Article 8 of the ECHR.

• The Court found that the law served legitimate aims, including the protection of public health, the protection of vulnerable individuals (such as the younger sister, who had a personality disorder and learning difficulties), and the prevention of inbreeding.

• The Court concluded that the state has a margin of appreciation in determining whether and how to regulate such matters of private morality, and that the prohibition on incest was within Germany’s discretion to protect societal interests.

3. Impact and Analysis:

• Protection of Vulnerable Individuals: The Court’s ruling emphasised the importance of protecting individuals who may be vulnerable within intimate relationships. The age difference between the siblings, Patrick being seven years older, and the sister’s mental health issues, were significant factors that justified the legal intervention under Section 173.

• Public Health and Prevention of Inbreeding: The decision highlighted the state's interest in preventing inbreeding due to the increased likelihood of genetic disorders in children born to close relatives. The fact that two out of the couple’s four children were born with disabilities reinforced the legitimacy of the state’s concern in this regard.

• Private Morality and Legal Limits: The case underscores the ECtHR's recognition of the state’s role in regulating private morality to protect broader societal values. The ruling affirmed that while individuals have rights to family life, these rights are not absolute and can be limited in cases where public health or the welfare of vulnerable individuals is at stake.

• Dissenting Opinion: Judge Hassemer of the German Federal Constitutional Court dissented, questioning the coherence of the law that prohibits sexual intercourse between siblings but does not address other sexual acts that could also undermine family structures. This dissent raises important questions about the consistency and scope of laws regulating sexual behaviour within families.

• Legal Precedent: Stubing v Germany serves as a precedent for the permissible limits of state intervention in private relationships under the ECHR, particularly when public health and the protection of vulnerable individuals are at issue. The ruling reinforces the idea that certain relationships, even if consensual, may be subject to legal restrictions for the greater good of society.