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URL: http://www.bailii.org/eu/cases/ECHR/2009/2274.html
Cite as: [2009] ECHR 2274

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Resolution CM/ResDH(2009)146^¹

Execution of the judgments of the European Court of Human Rights

Woditschka and Wilfing, Ladner, H.G. and G.B., Wolfmeyer, and R.H. against Austria

(Woditschka and Wilfing, Application No. 69756/01, judgment of 21 October 2004, final on 21 January 2005,

Ladner, Application No. 18297/03, judgment of 3 February 2005,

final on 3 May 2005,

H.G. and G.B., Application No. 11084/02, judgment of 2 June 2005,

final on 2 September 2005,

Wolfmeyer, Application No. 5263/03, judgment of 26 May 2005,

final on 12 October 2005,

R.H., Application No. 7336/03, judgment of 19 January 2006,

final on 19 April 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern a discriminatory restriction of the applicants' right to private life (violations of Article 14 combined with Article 8), (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- general measures preventing, similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2009)146

Information on the measures taken to comply with the judgments in the cases of

Woditschka and Wilfing, Ladner, H.G. and G.B., Wolfmeyer, and R.H. against Austria

Introductory case summary

The cases concern the fact that former Article 209 of the Austrian Criminal Code incriminated consensual male homosexual acts by adults with teenagers aged between fourteen and eighteen years old whereas, at the material time, consensual heterosexual or lesbian acts between adults and persons over fourteen were not punishable.

The European Court found that the fact of keeping Article 209 in force and the sentencing of the applicants to a fine (Woditschka in 2000) or a (suspended) prison sentence (Wilfing, H.G. and G.B. in 2001; Ladner and R.H. in 2002) under this article constituted a discriminatory interference with their right to private life (violations of Article 14 combined with Article 8).

In the case of Wolfmeyer, the Court found a violation of the same provisions. It considered that the applicant had not lost his victim status following his acquittal in July 2002 as it did not acknowledge the breach of the Convention and was not accompanied by adequate redress.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number	Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
Woditschka and Wilfing (69756/01)	-	35 000 EUR	26 366 EUR	61 366 EUR
				Paid on 2/03/2005
Ladner (18297/03)	-	17 500 EUR	13 000 EUR	30 500 EUR
				Paid on 27/05/2005
H.G. and G.B. (11084/02)	-	90 000 EUR	16 532,27 EUR	116 532,27 EUR
H.G.: 24 424,37 EUR				Paid on 06/10/2006
G.B.: 80 107,90 EUR				Paid on 17/11/2006
Wolfmeyer (5263/03)	-	10 000 EUR	18 000 EUR	28 000 EUR
				Paid on 19/12/2005
R.H. (7336/03)	-	35 000 EUR	8 851,10 EUR	43 851,10 EUR
				Paid on 19/05/2006

b) Individual measures

Under Section 363a of the Code of Criminal Procedure the applicants may ask for the reopening of the proceedings in order to have the consequences of their conviction erased.

II. General measures

The cases present similarities to those of L. and V., and S.L. (see Final Resolution CM/ResDH(2007)111, adopted on 31/10/2007) which were closed as Article 209 of the Austrian Criminal Code had been repealed on 10/07/2002. The legislative amendment entered into force on 14/08/2002. The new Article 207b of the Criminal Code penalises sexual acts between adults and adolescents in certain specific circumstances and is applicable irrespective of whether the sexual acts at issue are heterosexual or homosexual (male or female).

All judgments of the European Court against Austria concerning criminal cases are automatically transmitted to the competent Higher Regional Courts with the request to inform all subordinate judicial authorities as appropriate. Furthermore, judgments of the European Court are accessible to all judges and state attorneys on the internal database of the Austrian Ministry of Justice (RIS). A summary version in German is habitually published in the Human Rights Newsletter, available online at www.menschenrechte.ac.at together with a link to the Court's judgments in English.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent new, similar violations and that Austria has thus complied with its obligations under Article 46 paragraph 1 of the Convention.

1 Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies