CASE OF WOLFMEYER v. AUSTRIA
Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Christos Rozakis
4. The applicant was born in 1968 and lives in Bludenz. 5. In May 2000 the Feldkirch Regional Court (Landesgericht) opened criminal proceedings against the applicant on suspicion of having committed homosexual acts with adolescents contrary to Article 209 of the Criminal Code. 6. On 23 November 2000 the Regional Court, after having held a trial, convicted the applicant under Article 209 of the Criminal Code and sentenced him to six months' imprisonment suspended on probation. It found that, in 1997, he had performed homosexual acts with two adolescents. 7. Upon the applicant's appeal, the Innsbruck Court of Appeal (Oberlandesgericht) requested the Constitutional Court (Verfassungs-gerichtshof) to review the constitutionality of Article 209. 8. On 29 November 2001 the Constitutional Court dismissed this request (see paragraph 22 below). 9. On 20 December 2001 the Innsbruck Court of Appeal filed a new request for review of the constitutionality of Article 209. 10. On 21 June 2002 the Constitutional Court gave a judgment holding that Article 209 of the Criminal Code was unconstitutional (see paragraph 23 below). 11. The amendment repealing Article 209 entered into force on 14 August 2002. While, according to the transitional provisions, Article 209 remained applicable in all cases in which the judgment at first instance had already been given before the entry into force of the amendment, it could no longer be applied in the applicant's case since it had been the case in point (Anlaßfall) before the Constitutional Court. 12. On 17 July 2002 the Innsbruck Court of Appeal, noting that the Constitutional Court had repealed Article 209 as unconstitutional, acquitted the applicant. This decision was served on him on 12 August 2002. 13. On 20 September 2002 the Feldkirch Regional Court dismissed the applicant's request for reimbursement of his defence costs holding that under Article 393a (3) of the Code of Criminal Procedure (Strafprozeßordnung) no right to compensation existed if the accused was not punishable on grounds which occurred after the indictment was filed. 14. On 12 November 2002 the Innsbruck Court of Appeal partly granted the applicant's appeal, awarding him reimbursement of a total amount of 1,839.38 euros (EUR) for costs and expenses. It found that the Regional Court had wrongly applied Article 393a (3) of the Code of Criminal Procedure. The applicant's case had been the case in point before the Constitutional Court leading to the repeal of Article 209 of the Criminal Code. His case had to be treated as if Article 209 had never existed. Consequently, it could not be said that he was acquitted on grounds which occurred after the indictment. 15. The court found that the applicant's defence costs including the costs relating to the proceedings before the Constitutional Court, in which the applicant, as an interested party (mitbeteiligte Partei), had made detailed submissions, had been necessarily incurred. However, the law provided that only a maximum amount of EUR 1,091 was to be reimbursed as contribution to the defence costs. In addition EUR 748,38 were awarded for cash expenses. 16. Any sexual acts with persons under 14 years of age are punishable under Articles 206 and 207 of the Criminal Code. 17. Article 209 of the Criminal Code, in the version in force at the material time, read as follows: “A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.” 18. This provision was aimed at consensual homosexual acts, as any sexual act of adults with persons up to 19 years of age are punishable under Article 212 of the Criminal Code if the adult abuses a position of authority (parent, employer, teacher, doctor, etc.). Any sexual acts involving the use of force or threats are punishable as rape, pursuant to Article 201, or sexual coercion pursuant to Article 202 of the Criminal Code. Consensual heterosexual or lesbian acts between adults and persons over 14 years of age are not punishable. 19. On 10 July 2002, following the Constitutional Court's judgment of 21 June 2002 (see paragraph 23 below), Parliament decided to repeal Article 209. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002. 20. In a judgment of 3 October 1989, the Constitutional Court found that Article 209 of the Criminal Code was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein. 21. The relevant passage of the Constitutional Court's judgment reads as follows: “The development of the criminal law in the last few decades has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders, which have become known under the general heading of 'decriminalisation'. This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied. The criminal provision which has been challenged relates to the group of acts declared unlawful in order to protect – in so far as strictly necessary – a young, maturing person from developing sexually in the wrong way. ('Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ...' Pallin, in Foregger/Nowakowski (publishers), Wiener Kommentar zum Strafgesetzbuch, 1980, paragraph 1 on Article 209 ...) Seen in this light, it is the conviction of the Constitutional Court that from the point of view of the principle of equality contained in Article 7 § 1 of the Federal Constitution and Article 2 of the Basic Law those legislating in the criminal sphere cannot reasonably be challenged for taking the view, by reference to authoritative expert opinions coupled with experience gained, that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age, and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males, as provided for under Article 209 of the Criminal Code. This conclusion was also based on their views of morality, which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences (while carefully weighing up all the manifold advantages and disadvantages). Taking everything into account, we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of Article 7 § 1 of the Federal Constitution read in conjunction with Article 2 of the Basic Law.” 22. On 29 November 2001 the Constitutional Court dismissed the Innsbruck Regional Court's request to review the constitutionality of Article 209 of the Criminal Code. The Regional Court had argued, inter alia, that Article 209 violated Articles 8 and 14 of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which the Constitutional Court had relied in its previous judgment had since been refuted. The Constitutional Court found that the issue was res judicata. It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew, if there was a change in the relevant circumstances or different legal argument. However, the Regional Court had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age-limit for consensual homosexual relations than for consensual heterosexual or lesbian relations. 23. On 21 June 2002, upon a further request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional. The Regional Court had argued, firstly, as it had done previously, that Article 209 of the Criminal Code violated Articles 8 and 14 of the Convention and, secondly, that it was incompatible with the principle of equality (Gleichheitsgrundsatz) as guaranteed by Article 7 § 1 of the Federal Constitution, as a relationship between male adolescents aged between 14 and 19 was first legal, but became punishable as soon as one reached the age of 19 and became legal again when the second one reached the age of 18. The Constitutional Court held that the second argument differed from the arguments which it had examined in its judgment of 3 October 1989 and that it was therefore not prevented from considering it. It noted that Article 209 concerned consensual homosexual relations between men aged over 19 and adolescents between 14 and 18. In the 14 to 19 age bracket homosexual acts between persons of the same age (for instance two 16-year-olds) or of persons with a one- to five-year age difference were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209 of the Criminal Code. They became legal again when the younger partner reached the age of 18. Given that Article 209 did not only apply to occasional relations but also covered ongoing relationships, it led to rather absurd results, namely a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again and could therefore not be considered to be objectively justified.