Years after repeal by the Constitutional Court the Vienna Appeals Court justified former anti-homosexual Art. 209 of the Austrian Criminal Code as “morally understandable” (OLG Wien 13.06.2006, 20 Bs 155/06z). The European Court of Human Rights now communicated six cases concerning the nationwide criminal record and the use of prior homophobic convictions still listed there to the Austrian government.

The Vienna Appeals Court in the case mentioned above had to decide if prior convictions under Art. 209 in a latter conviction can be used to the detriment of a defendant. The Upper Regional Court of Vienna said yes, because Art. 209 “did not lack general moral understanding, but only criteria of equal treatment”. So offenders who have a criminal record under Art. 209 are to be sentenced more severe then the ones without. This way the court lets Art. 209 unfold negative consequences long after its abolishment.

Art. 209 of the Criminal Code stipulated a special minimum age limit of 18 years for homosexual contacts between men while for heterosexuals and for lesbians the age limit was 14 years.

In 2002 the Austrian Constitutional Court turned down Art. 209 (VfGH 21.06.2002, G 6/02). Soon after the European Court of Human Rights found convictions on the basis of Art. 209 to be serious violations of human rights (L. & V. vs. Austria 2003; S.L. vs. Austria 2003, Woditschka & Wilfling vs. Austria 2004; Thomas Wolfmeyer vs. Austria 2005; Franz Ladner vs. Austria 2005, H.G. & G.B. vs. Austria 2005; R.H. vs. Austria 2006; for the text of these jugdments click here). Since then the age limit for all sexual contacts has been 14 years, no matter if heterosexual or homosexual relations.

This had no effect on prior convictions under Art. 209. Those convictions are still standing and they are kept listed in the nationwide Criminal Record. As late as 2006 Federal President Fischer, upon a proposal of then Minister of Justice Gastinger, by way of pardon deleted a big deal of those convictions from the Criminal Record.

Rehabilitation-Bill not yet reintroduced

Parts of the administration successfully opposed the repeal of all convictions based (solely) on Art. 209 from the Criminal Record. Those who, in their eyes, did not deserve the mercy of deletion of their conviction from the registry, were refused. Despite the fact that their convictions under Art. 209 without doubt constituted serious human rights violations; no matter what these victims of Art. 209 have done during the rest of their lives.

Some Art. 209-victims, who did not succeed in getting their convictions (based solely on Art. 209) deleted from the registry, went to the courts. In Austria they did not find justice, neither in the Constitutional Court, nor in the Administrative Court, nor in the Supreme Court.

The European Court of Human Rights however accepted their applications and asked the Austrian federal government to justify, first, the ongoing inclusion of Art. 209-convictions in the Criminal Record (A.V. vs. Austria, 48779/07; A.S. vs. Austria, 48777/07; E.B. vs. Austria, 31913/07; H.G. vs. Austria II, 38357/07; H.G. vs. Austria III, 48098/07; for the statement of facts see under documents) and, second, the use of such prior convictions as an aggravating factor in later criminal proceedings for other offences (E.B. vs. Austria III, 27783/09). The government has been granted time for their submissions until 20 January 2010.

“These proceedings are of utmost importance”, says Dr. Helmut Graupner, president of Rechtskomitee LAMBDA (RKL) and counsel of the applicants, “Federal parliament could spare our country the disgrace of repeated conviction, but a bill for rehabilitation and compensation of Art. 209-victims has not yet been brought again in parliament after last year’s elections”.