Letter to EU ministers, 4 February 2000

SERIOUS AND PERSISTENT HUMAN RIGHTS VIOLATIONS IN AUSTRIA

Dear ………,

We are writing to you concerning the debate about the new government and human rights violations in Austria. We would like to inform you that Austria is seriously and persistently violating the human rights of homosexuals by upholding a higher age of consent provision for homosexual relations (18 years) than for heterosexual relations (14 years). In 1997, the European Human Rights Commission in Strasbourg ruled that such a discriminatory provision is a breach of the European Human Rights Convention. Attempts to repeal this law, Article 209 of the Austrian penal code, have failed on two occasions in the previous Parliament (in 1996 and 1998) due to the opposition of the People’s Party (ÖVP) and the Freedom Party (FPÖ) who also held a majority in the last legislative period. Therefore, Article 209 continues to be applied. Every year, there are, on an average, 50 investigations and approximately 20 convictions. The sentences provided for in Article 209 range from 6 months to 5 years imprisonment.

Austria has, however, not only ignored the opinion of the European Human Rights Commission but also a request to repeal Article 209 issued by the UN Human Rights Committee and four resolutions adopted by the European Parliament in 1997 and 1998. Please, find the relevant details in the fact sheet enclosed.

Austria definitely has a very bad record of guaranteeing full human rights to its lesbian and gay citizens. It was only in 1996 that two other provisions in the penal code violating fundamental human rights were repealed: the ban on gay and lesbian associations (against the opposition of the ÖVP), and the ban on positive information on homosexuality. The latter reform was opposed by both the ÖVP and the FPÖ but adopted because not all FPÖ deputies were present in the plenary.

Austria is known for having addressed its role during the nazi era only very late and very reluctantly. And it always had difficulties to come to terms with this past. However, this process is far from being completed. The gay and lesbian victims who survived the concentration camps have never received compensation on equal footing with other victim groups. As you certainly know, homosexuals were a distinct group persecuted by the nazis and marked in the camps with a distinct sign, the pink triangle. In 1995, when the Federal Nazi Victim Compensation Act (Opferfürsorgegesetz) of 1947 was last amended, the proposed bill to broaden the scope of the law to also cover persons persecuted on grounds of their sexual orientation was voted down by the ÖVP/FPÖ majority in Parliament.

These two parties not only have now again a majority in Parliament but also form the new government. This will mean that the serious human rights violations against homosexuals will persist. There is no perspective of compensation for the gay and lesbian nazi victims, let alone of any positive development such as enacting anti-discrimination or same-sex partnership legislation. The already precarious situation of gays and lesbians may even deteriorate. Although, when forming the government, the ÖVP and the FPÖ have signed a solemn declaration to respect human rights, we are very concerned that this will exclude the human rights of lesbians and gay men. The past experience with these two parties, as presented above, clearly shows that they simply lack any awareness that human rights also have to apply to homosexuals.

We, however, consider the maintenance and continuous application of Article 209 to be „a serious and persistent breach by a Member State of principles mentioned in Article 6(1)“ of the Treaty on European Union. Therefore, we request that a procedure, as provided for by Article 7 TEU, be launched against Austria.

The European Union will have a huge credibility problem if it demands high human rights standards from accession countries while serious and persistent human rights violations occur in one Member State. When Austria joined the EU, there were no Copenhagen criteria for accession countries nor a provision such as Article 7 TEU of the Amsterdam Treaty. If Austria was a candidate country today, it clearly would not meet these criteria.

In the past, human rights of lesbians and gay men were always put aside, neglected, ridiculed and not taken serious. However, this has changed in recent years by decisions both of the UN Human Rights Committee, the European Court of Human Rights and the European Union. Article 13 TEC recognises that discrimination based on sexual orientation must be combated within the European Union.

Therefore, we appeal to you to, together with the other governments of the EU Member States, exert pressure on Austria to repeal Article 209 in order to bring its legislation in line with the European Human Rights Convention, to immediately release from prison all persons jailed under this law, and to enact legal compensation arrangements for the gay and lesbian victims of the nazi regime. We have sent similar letters to your colleagues in the other 13 Member States.

We hope that human rights of lesbians and gay men are important enough for you to act in this case of these being violated. It would be disappointing if human rights abuses in a Member State were seen over because they effect only homosexuals.

Please, contact us for any further information you may need.

We thank you very much for your attention and support and look forward to your reply.

Sincerely,

Christian Högl
<small>president</small>