| 30.12.2011 |
Austria 
Austria Extends
Incitement-to-Hatred-Law to Sexual Orientation
RKL’s
application to the European Court of Human Rights (ECHR)
made an impact. From 1 January 2012 after long struggle also
lesbians, gays and bisexuals will be protected against
incitement to hatred. The conservative coalition partner,
ÖVP, however also connected this progress to pinprick. The
price for extending the offence was it´s castration.
Up to now the Austrian Criminal Code has protected against
incitement to hatred only ethnic and religious groups. Who
denounced Mohammed as child molester got convicted. To write
in a paper or to say in TV, for instance, that homosexuals
should be detained or executed however was no offence.
Rechtskomitee LAMBDA (RKL) took action against this lack of
protection and supported an application of eight lesbians
and gays to the Constitutional Court (see
http://www.rklambda.at/dokumente/news_2011/News-en_PA-110311-E-Constitutional_Court.pdf).
Before that, in spring 2010, the federal government had
introduced a bill into federal parliament extending the
offence to sexual orientation. But conservative MP’s exerted
vigorousa opposition and the project failed.
The Constitutional Court in December 2010 declared the
application inadmissible. Noone, the 13 judges said, has the
right to complain against privileges of another group (VfGH
15.12.2010, G 68, 69/10). So lesbians, gays and bisexuals
even lack the right to complain against their lack of
protection.
The eight plaintiffs then, supported by RKL, in August 2011,
applied to the European Court of Human Rights. And just two
months later, in October 2011, federal parliament voted for
the extension of the incitement-to-hatred law to sexual
orientation.
Pinprick again and again
Like in 2002 with infamous Art. 209 and in 2009 with
registered partnership applications to the European Court of
Human Rights made an impact. Also anti-discrimination
legislation for the workplace we got only due to an
EU-directive.
And it is not only in this respect that history repeats.
2002 infamous Art. 209 has been repealed but substituted in
part with a new (gender-neutral) offence (Art. 207b). 2009
registered partnership has been enacted but only with more
than 60 differences to marriage.
Like back then also this time the incitred-to-hatred offence
has been extended to sexual orientation (as to age,
disability and sex) but at the same time the level of
protection has been watered down.
The federal government bill even had proposed to make the
protection more effective and this proposal even passed the
federal parliament´s justice committee. The offence should
protect not only groups but also their members. It was
intended in future not only to outlaw to propagate „don’t
buy from Jews“ but also „don’t buy from this one as he is a
jew“.
In the last moment however, in the final plenary vote, the
governing coalition parties (social-democrat SPÖ and
christian-conservative ÖVP) surprisingly massively watered
down the law. They not only dropped the improvements already
passed by the justice committee but even lowered protection
down below the current level.
Incitement to hatred legalized to a large degree
Up to now incitement to hatred and calling names have been
an offence if committed „in public“, what means recognizable
for around 10 people. From 1 January 2012 the offence
requires „broad public“, which is a mass of (uncounted)
people. This is fulfilled if someone agitates in the
internet or in a broadcast, but not in a pub´s backroom and
not even in a mass event if the public is not admitted to
it.
This not enough, the offence has been watered down even
more. As of 1 January perpetrators can only be prosecuted if
it can be established that he/she acted with the intent to
slur the group of homosexuals, Christians, jews, muslims
etc. Incitement to hatred or calling names in a broad public
do not suffice.
Finally slurring (of a protected group) on it´s own has been
totally decriminalized.
So it will continue to be an offence to propagate „don’t buy
from Jews“ but it will still be no offence to say „don’t buy
from this one as he is a Jew“. Furthermore, different than
up to now, incitement to hatred against jews, christians,
muslims etc. will be decriminalized as of 1 January 2012, if
it takes place in small or medium sized events, or even in
closed mass events. And perpetrators will be offered the
opportunity to escape prosecution for inciting to hatred or
calling whole groups names (in a way violating human
dignity) by alleging that they did not intend to slur all
homosexuals or jews but (for instance) just acted out of
frustration over some unpleasant experience and had not
meant what they said.
Finally mockery and slurring of christians, jews, muslims
etc. (as a group) will be decriminalized totally from 1
January 2012; even if the mockery or the slurring violate
human dignity and even if committed in a broadcast, in the
internet or in a mass event open to the general public.
„Is this how credible combat of hate preachers does look
like?“, asks RKL-president and counsel of the applicants
before the ECHR Dr. Helmut Graupner.
Press
release on the incitement-to-hatred (and
anti-discrimination) case (Dietz et. al. v Austria) before
the ECHR:
http://www.rklambda.at/dokumente/news_2011/News-en_PA-110311-E-Constitutional_Court.pdf. |
