Back in 1976 a long-serving and highly decorated constable had been discharged on the basis of having been convicted under Austria’s infamous homophobe offence, Art. 209 Criminal Code. The disciplinary sanction continues to perpetuate: the pension of the man is still cut by 25%. The Federal Administrative Court even in 2016 refused compensation saying the contacts, back then legal for heterosexuals (and today for all), would constitute one of the most serious violations of duty" and the dismissal would therefore not constiutute discrimination. The Court of Justice of the European Union (CJEU) now ruled that Austria must compensate the man, represented by ECSOL-member Helmut Graupner for his longstanding discrimination (E.B. v BVA). Rechtskomitee LAMBDA (RKL), Austria’s LBTI civil rights organisation, expresses delight that the man finally experienced justice after ten years of court proceedings.
The Regional Criminal Court of Vienna, on the sole basis of the homophobe offence, convicted E.B. 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 E.B. had been 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 duty” (!). 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 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 insurance agency for civil servants and (on appeal) the Minister of Finance in 2010/2011 rejected his claim for having no basis in the law. The former policeman took his case to the Supreme Administrative Court and this court quashed both decisions for violation of material and procedural law (VwGH 10.10.2012, 2011/12/0007, 0008). The insurance agency had to decide anew on compensation for loss of pension. It did so in 2015. But it calculated the pension much to low by ignoring 26 years (from 1976 to 2002).
Federal Administrative Court: dismissal was no discrimination
E.B. appealed to the Federal Administrative Court and this even outright denied discrimination. The acts, back then legal for heterosexuals and legal for all today, would constitute "one of the most serious violations of duty", the judge said in 2016 (!). The judge even presumed to assert that the acts "would have lead to the same disciplinary sanctions forany other police officer". She therefore held that there was no discrimination; without an oral hearing, without ever heaving seen the man. The Supreme Administrative Court submitted the case to the European Court of Justice (CJEU). The CJEU´s Grand Chamber just ruled that the ongoing reduction of the pension constitutes discrimination which the policeman has to be compensated for.
„We are delighted that the man finally received justice“, says Dr. Helmut Graupner, president of RKL and counsel of the policeman, „My client is 77 years of age and sees his rehabilitation after ten years of court proceedings“.
The judgment (E.B. v Versicherungsanstalt öffentlich Bediensteter BVA C-258/17 15.01.2019)