Success for Gay Policeman in Austrian Supreme Administrative Court
Compensation for 36 years of discrimination - Rechtskomitee LAMBDA (RKL) urges quick resolution of the case
Back in 1976 a long-serving and highly decorated constable had been discharged on the basis of having been convicted under Austria’s infamous anti-homosexual offence, Art. 209 Criminal Code. The disciplinary sanction continues to perpetuate: the pension of the man is still cut by 25%. The Ministers of Interior and of Finance flatly denied his claim for compensation. The Administrative Supreme Court just quashed their decisions. Rechtskomitee LAMBDA (RKL), Austria’s civil rights organisation for homo- and bisexual as well as transgender women and men, now hopes for a speedy resolution of the case.
The Regional Criminal Court of Vienna, on the sole basis of the anti-homosexual offence, convicted U.H. 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 U.H. was discharged from the police forces. The Disciplinary Commission mentioned his “devious inclinations” and that the man had committed “one of the most serious violations of obligations” (!). 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 even perpetuates today. The man still suffers from it. He had never been accepted to the police forces again and his 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
The Ministers of Interior and of Finance rejected his claim for having no basis in the law. The former policeman took his case to the Supreme Administrative Court and won.
The Court quashed both decisions for violation material and procedural law. The Minister of Interior now has to decide on compensation for loss of earnings and the Minister of Finance for compensation for loss of pension. And both will have to take a decision on non-pecuniary damage.
„We are delighted and do hope that this case will be finally resoluted quickly“, says Dr. Helmut Graupner, president of RKL and counsel of the policeman, „My client is 70 years of age and would like to live to see his rehabilitation“.