RKL’s application to the European Court of Human Rights (ECHR) made an impact. From 1 January 2012 after long struggle also lesbians, gays and bisexuals will be protected against incitement to hatred. The conservative coalition partner, ÖVP, however also connected this progress to pinprick. The price for extending the offence was it´s castration.

Up to now the Austrian Criminal Code has protected against incitement to hatred only ethnic and religious groups. Who denounced Mohammed as child molester got convicted. To write in a paper or to say in TV, for instance, that homosexuals should be detained or executed however was no offence.

Rechtskomitee LAMBDA (RKL) took action against this lack of protection and supported an application of eight lesbians and gays to the Constitutional Court (see http://www.rklambda.at/dokumente/news_2011/News-en_PA-110311-E-Constitutional_Court.pdf). Before that, in spring 2010, the federal government had introduced a bill into federal parliament extending the offence to sexual orientation. But conservative MP’s exerted vigorousa opposition and the project failed.

The Constitutional Court in December 2010 declared the application inadmissible. Noone, the 13 judges said, has the right to complain against privileges of another group (VfGH 15.12.2010, G 68, 69/10). So lesbians, gays and bisexuals even lack the right to complain against their lack of protection.

The eight plaintiffs then, supported by RKL, in August 2011, applied to the European Court of Human Rights. And just two months later, in October 2011, federal parliament voted for the extension of the incitement-to-hatred law to sexual orientation.



Pinprick again and again

Like in 2002 with infamous Art. 209 and in 2009 with registered partnership applications to the European Court of Human Rights made an impact. Also anti-discrimination legislation for the workplace we got only due to an EU-directive.

And it is not only in this respect that history repeats. 2002 infamous Art. 209 has been repealed but substituted in part with a new (gender-neutral) offence (Art. 207b). 2009 registered partnership has been enacted but only with more than 60 differences to marriage.

Like back then also this time the incitred-to-hatred offence has been extended to sexual orientation (as to age, disability and sex) but at the same time the level of protection has been watered down.

The federal government bill even had proposed to make the protection more effective and this proposal even passed the federal parliament´s justice committee. The offence should protect not only groups but also their members. It was intended in future not only to outlaw to propagate „don’t buy from Jews“ but also „don’t buy from this one as he is a jew“.

In the last moment however, in the final plenary vote, the governing coalition parties (social-democrat SPÖ and christian-conservative ÖVP) surprisingly massively watered down the law. They not only dropped the improvements already passed by the justice committee but even lowered protection down below the current level.



Incitement to hatred legalized to a large degree

Up to now incitement to hatred and calling names have been an offence if committed „in public“, what means recognizable for around 10 people. From 1 January 2012 the offence requires „broad public“, which is a mass of (uncounted) people. This is fulfilled if someone agitates in the internet or in a broadcast, but not in a pub´s backroom and not even in a mass event if the public is not admitted to it.

This not enough, the offence has been watered down even more. As of 1 January perpetrators can only be prosecuted if it can be established that he/she acted with the intent to slur the group of homosexuals, Christians, jews, muslims etc. Incitement to hatred or calling names in a broad public do not suffice.

Finally slurring (of a protected group) on it´s own has been totally decriminalized.

So it will continue to be an offence to propagate „don’t buy from Jews“ but it will still be no offence to say „don’t buy from this one as he is a Jew“. Furthermore, different than up to now, incitement to hatred against jews, christians, muslims etc. will be decriminalized as of 1 January 2012, if it takes place in small or medium sized events, or even in closed mass events. And perpetrators will be offered the opportunity to escape prosecution for inciting to hatred or calling whole groups names (in a way violating human dignity) by alleging that they did not intend to slur all homosexuals or jews but (for instance) just acted out of frustration over some unpleasant experience and had not meant what they said.

Finally mockery and slurring of christians, jews, muslims etc. (as a group) will be decriminalized totally from 1 January 2012; even if the mockery or the slurring violate human dignity and even if committed in a broadcast, in the internet or in a mass event open to the general public.

„Is this how credible combat of hate preachers does look like?“, asks RKL-president and counsel of the applicants before the ECHR Dr. Helmut Graupner.

Press release on the incitement-to-hatred (and anti-discrimination) case (Dietz et. al. v Austria) before the ECHR: www.rklambda.at/dokumente.

www.rklambda.at