Austria’s minister of justice has proposed a new law pardoning homosexual men and women sentenced under former anti-homosexuality laws – if they apply for it and a court finds them not guilty.
The proposal published on Monday (14 September) comes two years after the European Court of Human Rights accused Austria – among other countries – of violating the European Convention on Human Rights by not clearing their criminal records.
In 1971, Austria legalized homosexuality and at the same time introduced special legislation: the age of protection for homosexual relationships was set at 18 years, while it was 14 for heterosexual couples. It was lowered to 14 for everyone in 2002.
The 1971 legislation also made it illegal to be a gay male prostitute and to endorse homosexuality (‘sodomy between people of the same gender’) or be part of an LGBTI group or association. Those laws were scrapped in 1989 and 1997.
But the proposed new law doesn’t mean every one of the 200 people whose criminal register carries a sentencing under one of these laws will automatically be pardoned.
The current draft requires anyone carrying one of those sentences to apply for a pardon; a relative or the district attorney’s office can also apply for someone to be pardoned.
Their case will then be taken to a court, in a non-public hearing, and it will be decided if their conviction will be deleted.
According to LGBTI group Rechtskomittee LAMBDA (legal committee LAMBDA, RKL) a decision would based on whether their actions would be legal today.
This would mean a gay man of legal age, convicted of having sexual contact with an underage male prostitute before 2002, would potentially not have his record deleted – although the same act would have been legal if he had met with an underage female sex worker – as underage prostitution is now banned under Austrian law.
Some LGBTI groups, including the RKL, have voiced their concerns over the proposal, saying its policy of basing a pardon on today’s legal situation is still discriminatory and in breach of the convention.
Others, including the Homosexuelle Initiative Wien (homosexual initiative of Vienna), have welcomed the proposal, calling it important and agreeing with the ministry’s plan to check certain convictions.
A spokesperson for the Ministry of Justice told GSN they could not comment on every question raised about the proposal, as the appraisal deadline is next week, but the law would not seek to open new court cases when someone applies for pardon.
The proposed new legislation is formally called The New Federal Law for the Acquitance of Sentences Under Sections 129 I, 129 I lit. b, 500 or 500a Criminal Law 1945 and §§ 209 or 210 Criminal Code.
It is currently open for appraisal, meaning relevant groups can give statements on the proposals, which will then be closely considered by the Ministry of Justice before a proposed law goes before Parliament; the deadline for appraisals is 18 September.