Discrimination: Administrative Supreme Court turns to EU-Court
17 May 2017
Dismissed Gay Policeman
Back in 1975 a long-serving and highly decorated constable had been discharged on the basis of having been convicted under Austria’s infamous homophobe offence, Art. 209 Criminal Code. The disciplinary sanction continues to perpetuate even today: the pension of the man is still cut by 25%. The Federal Administrative Court even in 2016 refused compensation saying the contacts, back then legal for heterosexuals (and today for all), would constitute "one of the most serious violations of duty" and the dismissal therefore not constiutute discrimination. The Administrative Supreme Court just announced that it has asked the Court of Justice of the European Union (CJEU) for a preliminary ruling (E.B. v BVA). Rechtskomitee LAMBDA (RKL), Austria’s LGBTI civil rights organisation, now hopes for final justice in this case started already eight years ago.
The Regional Criminal Court of Vienna in 1974, on the sole basis of the homophobe offence, had convicted E.B. to 3 months of dungeon, aggravated by one day of abstinence per month. The Upper Regional Court of Vienna confirmed the sentence. At that time the then 32 year-old man had already served in the police-forces for more then 10 years and had been highly decorated for his merits.
„One of the most serious violations“
On the basis of the conviction E.B. had been discharged in 1975 from active service in the police forces. The Disciplinary Commission mentioned his “devious inclinations” and that the man had committed “one of the most serious violations of duty” (!). It would be out of question “that homosexuals in the police forces already as such are presenting a bad burden on these forces”. “A man however whose homosexual inclinations are already known would hardly ever be accepted to the police corps!”.
Would the constable have been a woman or would his partner or both of them have been female, he would never have been reported to the police, he would never have been prosecuted, he would never have been convicted and he would never have received a disciplinary sanction. Because he is a man and because his partners were male, he had been convicted as a sex-offender and discharged from the police forces.
The disciplinary sanction perpetuates today. The man still suffers from it. He had never been accepted to the police forces again and his (due to the early discharge: very small) pension still is cut by 25%; until his death.
The man relied on the European Convention on Human Rights and on the Antidiscrimination-Directive of the European Union (2000/78/EC) and in 2009 claimed compensation for loss of earnings, for loss of pension and for non-pecuniary damage.
Court counters disdainful rejection T
The insurance agency for civil servants and (on appeal) the Minister of Finance in 2010/2011 rejected his claim for having no basis in the law. The former policeman took his case to the Supreme Administrative Court and this court quashed both decisions for violation of material and procedural law (VwGH 10.10.2012, 2011/12/0007, 0008). The insurance agency had to decide anew on compensation for loss of pension. It did so in 2015. But it calculated the pension much to low by ignoring 26 years (from 1976 to 2002).
Federal Administrative Court: dismissal was no discrimination
E.B. appealed to the Federal Administrative Court and this even outright denied discrimination. The acts, back then legal for heterosexuals and legal for all today, would constitute "one of the most serious violations of duty", the judge said in 2016 (!). The judge even presumed to assert that the acts "would have lead to the same disciplinary sanctions forany other police officer". She therefore held that there was no discrimination; without an oral hearing, without ever heaving seen the man. She even denied a regular appeal to the Administrative Supreme Court.
Upon an irregular appeal by the victim the Administrative Supreme Court now has referred the case to the Court of Justice of European Union (CJEU) (VwGH 27.04.2017, EU 2017/0001, Ra 2016/12/0072). The CJEU will have to decide if the union law´s prohibition of discrimination bans upholding the legal effects of the disciplinary sanction imposed back in 1975. And it will have to say, if compensation has to be caclulated as if the man would never have been dismissed from the police forces, or if it suffices to end the 25% cut in his (small) pension (from which date?).
„As a matter of course corresponding heterosexual acts would never have lead to a dismissal from active service, and the Disciplinary Commission even based the dismissal on the "devious inclination" homosexuality“, says Dr. Helmut Graupner, president of RKL and counsel of the policeman, „My client is 75 years of age and I very much hope for his soon rehabilitation now by the Court of Justice of the European Union“.
The referral decision