The European Court of Human Rights (ECtHR) has convicted Austria last year for continuously keeping criminal records of persons convicted under former homophobic criminal offences. Nevertheless the Austrian Supreme Court refuses to bring about the deletion of these criminal records. And Austrian politics remains equally inactive. Rechtskomitee LAMBDA, Austria´s LGBT-rights organisation is outraged.

Art. 209 of the Criminal Code was one of four homophobic criminal offences which in 1971 had replaced the total ban. The other three had criminalized male homosexual prostitution (“commercial same-sex lewdness”) (Art. 210), “public approval of lewdness between persons of the same sex” (or with animals) (Art. 220) and “associations promoting lewdness between persons of the same sex” (Art. 221). Art. 209 established a special minimum age limit of 18 years for male same-sex contacts as opposed to 14 years for lesbian and heterosexual contacts.

2002 the Austrian Constitutional Court finally had repealed Art. 209 (VfGH 21.06.2002, G 6/02). Some months later the European Court of Human Rights found that Art. 209 violated the European Convention of Human Rights (L. & V. v. Austria 2003). Since then Austria establishes a uniform minimum age limit of 14 years of age regardless of sex and sexual orientation.

The repeal of Art. 209 however had no impact on the convictions under this offence. These convictions are still in force and remained on the criminal records (accessible in the whole Schengen-area). 2006 still 1.500 convictions under former homophobic offences have been kept on criminal records, 500 of them even convictions under the old (pre 1971) total ban.


2006 still 1.500 convictions on the criminal records

As late as 2006 Federal President Heinz Fischer, acting upon a proposal by Justice Minister Karin Gastinger, exercising his right to pardon ordered the deletion of a good deal of these convictions from the criminal records. Deletion of all such convictions from the criminal records failed due to resistance from parts of justice-ministry-bureaucracy. The criminal records of those not having been viewed as worth of a pardon stayed. Despite the fact that these convictions seriously violated human rights, no matter what the convicts have done during the rest of their lives.

Some of those Art. 209-victims whose criminal record has not been cleared of their homophic convictions turned to the courts. Austrian courts however provided no relieve, neither the Constitutional Court nor the Administrative Supreme Court and neither the Supreme Court.

The men (two of them had already challenged other Art. 209-convictions in European Court of Human Rights back in 2003 and 2005) asked the Minister of Interior (administrating the federation wide criminal record database) to delete their convictions. They made clear in their applications that they did not ask for an annulment of their convictions but solely the deletion of theses convictions from their criminal records.



Art. 209-victims eked out historic judgment and fell by the wayside

Nevertheless the Austrian Constitutional Court confirmed the Minister of Interior´s rejection of the men´s applications stating that it could not be in the competence of an administrative authority to annul convictions. Only a court could establish that a conviction violated human rights (VfGH 04.10.2006, B 742/06).

The convicts thus turned to the Supreme Court and applied for the renewal of their criminal proceedings. In a historic judgment the Supreme Court decided that it may order the renewal of criminal proceedings not only after a conviction by the European Court of Human Rights (as the Austrian Code of Criminal Procedure establishes) but in all cases of violation of human rights by criminal courts, regardless if a victim had previously turned to the ECtHR and regardless of established Strasbourg case-law (OGH 01.08.2007, 13 Os 135/06m, u.a.).

The Art. 209-victims therefore had eked out a historic extension of judicial human rights protection. Nevertheless they fell by the wayside, as the Supreme Court excluded this newly created remedy for all human rights violations dating back more than six months.

Art. 209-convictions thus are still kept on the criminal records and continue to stigmatize victims of former homophobic criminal laws. The Austrian Supreme Court has decided that convictions under Art. 209 CC are still an aggravating factor in sentencing (OGH 22.03.2005, 12 Os 25/05a).


Austrian Courts are fooling Art. 209-victims

The European Court of Human Rights in November 2013 gave way to the men´s applications, convicted Austria and found it seriously discriminatory to treat homophobic convictions the same way as convictions for real criminal offences (E.B. v Austria, judg. 07.11.13, 31913/07 et.al.). The judgment was unanimous.

After their victory the men applied again for a renewal of their criminal procedures. Despite the Strasbourg-judgment the Supreme Court refused again saying that the entry of a conviction in the criminal record is just a compelling statutory effect of the conviction (OGH 11.09.2014, 14 Os 47/14i) (?). Since the Constitutional Court and the Administrative Supreme Court had ruled that convictions could only be deleted from a criminal record after an annulment of the conviction by the Supreme Court, the convicts – despite Strasbourg´s judgment – have no domestic remedy whatsoever available to get the convictions deleted from their criminal records.

Also the Austrian legislator remains inactive. Last spring the Ministry of Justice promised to RKL a bill but has never presented one.

To date still 211 convictions under the former homophobic offences are kept on criminal records. 122 convictions under Art. 209 CC (or its predecessor § 129 I Penal Act 1852), 38 convictions under Art. 210 CC (or its predecessor § 500a PA), and even 51 convictions under the pre-1971 total ban (§ 129 I b PA) (answer by Minister of Justice Dr. Wolfgang Brandstetter to a parliamentary question by RKL-honorary-board-member Senator Marco Schreuder 2789/AB-BR/2014, 25 July 2014, http://www.parlament.gv.at/PAKT/VHG/BR/AB-BR/AB-BR_02789/index.shtml).

“It is really scandalous: despite the binding force of Strasbourg-judgments Austria is ignoring the judgment of the European Court of Human Rights“, says Dr. Helmut Graupner, president of Austria´s LGBTI-rights-association Rechtskomitee LAMBDA and the applicants´ counsel, „Federal parliament must act immediately“.