WODITSCHKA AND WILFLING v. AUSTRIA

• Judgment Date: 21 October 2004
• ECLI: ECLI:CE:ECHR:2004:1021JUD006975601
• Respondent State: Austria
• Date: 21 October 2004
• Application Number: 69756/01;6306/02
• Court: First Section (European Court of Human Rights)
• Counsel: GRAUPNER H.
• Applied Rules: 8;14+8;14;29;29-3;34;41

FIRST SECTION

CASE OF WODITSCHKA and WILFLING v. AUSTRIA

(Application nos. 69756/01 and 6306/02)

JUDGMENT

STRASBOURG

21 October 2004

FINAL

21/01/2005

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Woditschka and Wilfling v. Austria,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

and MrC.L. Rozakis, President,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrV. Zagrebelsky,
MrsE. Steiner,
MrK. Hajiyev, judges,
MrS. Quesada, Deputy Section Registrar,

Having deliberated in private on 30 September 2004,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (no. 69756/01 and no. 6306/03) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Austrian nationals, Mr Michael Woditschka (“the first applicant”) and Mr Wolfgang Wilfling (“the second applicant”), on 13 May 2001 and on 23 January 2002, respectively.

2. The applicants were represented by Mr H. Graupner, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

3. On 10 October 2002 and 21 March 2002, respectively, the Court decided to communicate the applications to the Government. On 12 June 2003 it decided to examine the merits of the applications at the same time as its admissibility pursuant to Article 29 § 3 of the Convention.

THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

A. The first applicant

4. The first applicant was born in 1979 and lives in Vienna.

5. On 19 July 2000 the Vienna Regional Court (Landesgericht für Strafsachen) convicted the first applicant under section 209 of the Criminal Code of having committed homosexual acts with an adolescent and sentenced him to a fine of ATS 4,500 (approximately EUR 330) with 75 days’ imprisonment in default. The sentence was suspended on probation. The Regional Court found that, in September 1999, the first applicant, who was then twenty years old, had had about ten homosexual contacts with a sixteen-year-old. In determining the sentence the court had regard to the applicant’s confession and his young age as a mitigating circumstance, as well as to the repetition of the offence as an aggravating circumstance.

6. On 13 November 2000 the Vienna Court of Appeal (Oberlandesgericht) dismissed the first applicant’s appeal on points of law, in which he had complained that section 209 of the Criminal Code was discriminatory and violated his right to respect for his private life, and in which he had also suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision.

B. The second applicant

7. The second applicant was born in 1964 and lives in Traiskirchen.

8. On 7 August 2001 the Wiener Neustadt Regional Court ordered the second applicant’s detention on remand on suspicion of having committed homosexual acts with an adolescent contrary to section 209 of the Criminal Code.

9. On 24 August 2001 the Wiener Neustadt Regional Court convicted the second applicant under section 209 of the Criminal Code and sentenced him to fifteen months’ imprisonment, fourteen of which were suspended on probation. It found that, from March 2001 until his arrest, the second applicant had a homosexual relationship with a seventeen-year-old. In determining the sentence the court had regard to the applicant’s confession as a mitigating circumstance, as well as to the repetition of the offence and a previous conviction as aggravating circumstances.

10. On 7 September 2001 the second applicant was released from detention on remand.

11. On 23 October 2001 the Vienna Court of Appeal (Oberlandesgericht) dismissed the second applicant’s appeal on points of law, in which he had complained that section 209 of the Criminal Code was discriminatory and violated his right to respect for his private life, and in which he had also suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. Upon the Public Prosecutor’s appeal it changed the sentence to the effect that only ten out of fifteen months of imprisonment were suspended on probation.

12. Subsequently the second applicant was granted a stay of the execution of his sentence. On 7 July 2002 he requested a pardon and a further stay of execution pending the decision on his request for pardon. On 11 July 2002 the Wiener Neustadt Regional Court granted a further stay of execution.

13. On 23 September 2002 the Federal President, upon the second applicant’s request, granted him a remission of the remaining sentence.

II. RELEVANT DOMESTIC LAW

14. 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.”

15. On 21 June 2002, upon a request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional.

16. On 10 July 2002 Parliament decided to repeal Article 209. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002.

17. The Court notes that the legal situation has remained unchanged since 9 January 2003, when it gave its L. and V. v. Austria judgment (nos. 39392/98 and 39829/98, ECHR 2003-I). For a more detailed description of the law, the Constitutional Court’s judgments concerning Article 209 of the Criminal Code and the parliamentary debate relating to the issue, it therefore refers to the said judgment (§§ 17-33).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14

18. The applicants complained of the maintenance in force of Article 209 of the Criminal Code, which criminalised homosexual acts of adult men with consenting adolescents between the ages of 14 and 18, and of their convictions under that provision. Relying on Article 8 of the Convention taken alone and in conjunction with Article 14, they alleged that their right to respect for their private life had been violated and that the contested provision was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable.

Article 8 of the...