Category Archives: Uncategorized

Pink Triangle of Austria´s Law of Names Goes to Strasbourg

Registered Partnership: Pink Triangle of Austria´s Law of Names Goes to Strasbourg

The Austrian Supreme Administrative Court just has decided not (!) to end the labelling of same-gender couples by a special category of names. Rechtskomitee LAMBDA (RKL), Austria´s LGBT-rights organization, now takes the case to the European Court of Human Rights.

RKL - Rechtskomitee Lambda
 
 
 

2010 Austria introduced registered partnership but combined this progress for same-gender couples with extraordinary maliciousness. Who enters registered partnership, the Registered Partnership Bill established, loses his family name and receives a second name instead. “Second names” (“Nachname”) are a new name category. It has been introduced solely for persons in a registered, thus same-gender, partnership. A second name therefore labels a person as homosexual. Second names thus work as the Pink Triangle of Austria´s law of names.

The last time before when a particular social group had been labelled with a special category of names was by the “Second Decree on the Implementation of the Act on the Change of Family Names and First Names” of the year 1939. This decree had ordered the labelling of Jews by the obligatory first names Israel and Sara …

Constitutional Court not interested

Christina Bauer had registered her partnership with Daniela Bauer in Germany. Daniela Bauer, as a German citizen still has a family name, as her name is determined by German law. Christina Bauer is an Austrian citizen and therefore applied to the civil registry office to establish that she still has a family name. The office rejected her application and she turned to the high courts.

The Constitutional Court declined to hear the case (VfGH 23.06.2010, B 582/10).

And the Administrative Supreme Court declared the application inadmissible on the ground that she should have used another remedy (to get a decision on whether she still has a family name), namely to ask the civil registry to issue a partnership-certificate displaying her name as a family name instead of a second name (VwGH 29.11.2010, 2010/17/0080).

Christina Bauer did as the Administrative Supreme Court told her and applied to the City of Vienna to issue such a partnership-certificate. The magistrate refused on the basis that she already had a German partnership-certificate. The Vienna governor dismissed the appeal, stressed that Miss Bauer had lost her family name due to the registration of her partnership and denied that this violated her human rights.

Supreme Administrative Court fools the applicant

Christina Bauer again turned to the high courts. The Constitutional Court again declined to hear the case (VfGH 26.11.2012, B 1253/11). And the Administrative Supreme Court – despite its prior judgment (see above) – now ruled that Miss Bauer cannot claim an Austrian partnership-certificate (VwGH 23.09.2014, 2012/01/0005). Its judgment of 2010 to the opposite the court declared irrelevant. The court stressed that it changed its mind …

„This is clear denial of justice. Same-gender couples not just get labelled by a special name category but the courts even refuse to issue a decision on the lawfulness of this labelling“, says RKL-president and counsel of applicant Dr. Helmut Graupner, „But the fight is not over yet. We are taking the case to the European Court of Human Rights“.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes so prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, former Federal Ombudsman and MP Mag. Terezija Stoisits, MP Petra Bayr, former MP Gerald Grosz, senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Manfred Nowak and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Hannes Tretter, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, legal gender studies experts aoProf. Dr. Elisabeth Holzleithner und Univ.-Prof. Dr. Nikolaus Benke, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).

More information:
Rechtskomitee LAMBDA,
+43 1 876 61 12
+43 676 309 47 37
office@RKLambda.at
www.RKLambda.at

2014-11-13

Constitutional Court Turns Down Insemination-Ban for Lesbian Couples

Austria
Constitutional Court Turns Down Insemination-Ban for Lesbian Couples
Rechtskomitee LAMBDA (RKL): “A great day for human rights”

RKL - Rechtskomitee Lambda
 
 
 

Rechtskomitee LAMBDA (RKL), Austria’s civil rights organisation for homo-, bisexual and transgender people, celebrates the fifth victory of its registered-partnership-litigation-offensive. As the first supreme court in the world doing so the Austrian Constitutional Court (the world´s oldest constitutional court) turned down the statutory ban on donor insemination for lesbian couples as violating human rights.

After hyphens in double-barrelled names, the adoption of a double-barrelled name after performance of registered partnership, after wedding vows and best men and after the office-room-compulsion the Austrian Constitutional Court for the fifth time now orders equal rights for registered partnerships and marriages in a case represented by RKL-president Dr. Helmut Graupner as part of RKL´s registered-partnership-litigation-offensive. The court found no valid reasons for the ban on donor insemination for lesbian couples. The judges saw the traditional family not affected by realizing a lesbian couple´s wish for a child. And the Constitutional Court took its ground-breaking judgment, delivered today, on the highly symbolic date of 10 December 2013, the International Day of Human Rights.

Christina Bauer, an Austrian citizen, and Daniela Bauer, a German citizen, in 2008 entered into registered partnership in Germany and then moved to the city of Wels in Upper Austria. Christina wants to receive a child through medically assisted procreation (insemination) and Daniela agrees. Both are very much looking forward to live a happy family-life with Christina’s child.

Appeals Court: Go to Germany!

But with introduction of registered partnership by 1st January 2010 Austria’s federal legislator explicitly banned medically assisted procreation for lesbian couples. Punishment: up to EUR 36.000,– or up to 2 weeks in jail. This ban prohibits lesbian women medically assisted insemination just on the basis that they are living with a woman instead of a man. Thus they are legally barred from any procreation as it cannot reasonably expected from a lesbian woman to engage in sexual intercourse with a man, contrary to her sexual orientation and (for couples) contrary to their promise of faithfulness.

Daniela and Christina Bauer in 2010 asked the District Court of Wels to register Daniela’s consent to the insemination (this being, under Austrian law, one of the preconditions for lawful medically assisted insemination). The District Court refused in March 2010 and the Regional Court of Wels, on appeal, confirmed in June 2010. The appeals court saw neither a violation of the European Convention of Human Rights nor a violation of freedom of movement within the European Union (there is no such ban in Germany). The women could go to Germany and get inseminated there, the appeals court said.

The Supreme Court disagreed. Two times it has applied to the Constitutional Court to strike down the ban as unconstitutional (OGH 22.03.2011, 3 Ob 147/10d; OGH 19.12.2012, 3 Ob 224/12f).

In addition a lesbian registered couple from Vienna directly addressed the Constitutional Court with the same objective (G 44/2013).

Traditional families not affected

In its judgment delivered today the Constitutional Court stressed that same-sex couples (with children) are family (VfGH 10.12.2013, G 16/2013, G 44/2013, par. 36). Protection of the traditional family cannot justify the exclusion of same-sex couples from donor insemination as same-sex partnerships are not substituting marriage or opposite-sex cohabitation, but instead are complementing them (par. 54).

Also same-sex couples enjoy the fundamental right (under Art. 8 ECHR) to medically assisted procreation, the 14 judges said (par. 50). Restricting legal methods of medically assisted procreation to bridging fertility-problems in heterosexual partnerships and marriages is disproportionate and discriminatory (par. 47).

In its opinion sought by the Constitutional Court the federal government´s Bioethics-Commission had supported the repeal of the ban with a vast majority of ¾ of its members.

The judgment of the Austrian Constitutional Court (which was the first constitutional court in the world) is the first one worldwide in which a supreme court turns down the exclusion of lesbian couples from donor insemination as a violation of human rights.

Discrimination fires back on conservative party

Austria´s christian-democratic party´s (ÖVP) insistence on the ban led to an own goal for them as the Constitutional Court´s repeal of parts of the Medically Assisted Procreation Act leads not only to access of lesbian couples to donor insemination but also to liberalisations for heterosexual couples which the party consistently and successfully has resisted in the past years.

Couples won´t be required anymore to establish that they have engaged all possible and reasonable kinds of treatment in order to produce pregnancy by sexual intercourse (§ 2 par. 2). And in-vitro-fertilisation using donor sperm (instead of the partner´s sperm) will be legalized (§ 3 par. 1 & 2).

For the reintroduction of these regulations the conservative party now needs its coalition partner. If they find no consensus (also) the liberalisation for heterosexual couples will enter into force on 1 January 2015.

„The Constitutional Court’s judgment is great, historic and ground-breaking“, says Dr. Helmut Graupner, president of RKL and counsel of the four women, „Today is a great day for human rights and the rule of law“.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes so prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, former Federal Ombudsman and MP Mag. Terezija Stoisits, MP Petra Bayr, former MP Gerald Grosz, senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Manfred Nowak and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Hannes Tretter, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, legal gender studies experts aoProf. Dr. Elisabeth Holzleithner und Univ.-Prof. Dr. Nikolaus Benke, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).

More information:
Rechtskomitee LAMBDA,
+43 1 876 61 12
+43 676 309 47 37
office@RKLambda.at
www.RKLambda.at

2014-01-17

Austria: Constitutional Court lifts Office-Room-Compulsion – Government reintroduces

Registered Partnership
Constitutional Court lifts Office-Room-Compulsion – Government reintroduces

RKL - Rechtskomitee Lambda

Rechtskomitee LAMBDA (RKL): “Insistment of Christian-Democrats is shameful”

In a judgment delivered last week (VfGH 19.06.2013, G 18, 19/2013) the Austrian Constitutional Court has struck down the statutory prohibition on performing registered partnerships outside the authority´s office-rooms. The governing coalition of Social- and Christian-Democrats however had again inserted such a prohibtion into a new law coming into force next fall. Thus the office-room-compulsion will be reintroduced by 1 November 2013 and the Christian-Democrats – despite the Consitutional Court´s judgment – do insist on this reintroduction. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, denounces this as unbearable chicanery.

RKL-Secretary General Walter Dietz and his partner Boontawee Suttasom are living in Vienna and have been a couple for over 17 years. Manfred Hörmann and Felix Moser have been a couple for many years and are jointly running a farm in Stallhofen in Styria. Both couples had applied for the performance of a registered partnership like a “dream wedding” as it is offered to marrying couples, namely by a wedding vow in front of witnesses on the Vienna Giant Ferris Wheel and their own farm.

Austrian federal law prohibits the formation of registered partnerships outside the authority´s office-rooms (only exception: prisoners!), like in the Giant Ferris Wheel, in a hotel, a castle or on a farm; there civil servants are only allowed to hand over the documents (after the formation of the partnership within the office-rooms).

Both couples´ applications have been rejected and the case went up to the Constitutional Court, which agreed with the applicants in a decision of last December (VfGH 12.12.12, B 125/11, B 138/11). Also same-sex couples enjoy the protection of family life under the European Convention of Human Rights and differences between marriage and registered partnership can only be justified by particularly serious reasons, the Constitutional Court said in its decision taken on a wedding-dreamdate (12.12.12).

Worldwide unique discrimination

The 14 constitutional judges back then could find no reasonable justification for the exclusion of a wedding vow and of witnesses. Neither could they find a basis for this legal practice in the legislation. They therefore ordered that authorities, with immediate effect, have to apply the same ceremony for registered partnerships as for marriages (including the wedding vow, the dictum that the partners, after the vow, are lawfully bonded spouses or registered partners, and, if the couples so wish, including witnesses). Also for office-room-compulsion the Constitutional Court could find no reasonable justification. In no other area authorities are obliged to confine their administrative acts to their office-rooms, the Court said and initiated proceedings to repeal this law.

These proceedings ended last week when the Constitutional Court´s judgment has been delivered. The court with immediate effect struck down the office-room-compulsion. The ceremony, the judges said, are of symbolic value for couples which is why the modalities for performing marriages and registered partnerships, in the absence of particularly serious reasons justifying differences, have to be equal (VfGH 19.06.2013, G 18, 19/2013).

The office-room-compulsion is an Austrian anomaly. No other country in the world ever applied such discrimination. Nevertheless the federal governing coalition just last December has inserted this compulsion again into a new law, which will enter into force by 1 November 2013. Until then registered partnerships maybe performed outside the office-rooms. After 1 November the new law puts an end to this freedom and the office-room-compulsion will apply again.

Christian-Democrats insist on reintroduction

After the Constitutional Court´s judgment the Social-Democrats in the final session of federal parliament´s first chamber (Nationalrat) before next September´s federal elections treid to get the office-room-compulsion to be deleted from the new statute passed last December. But the Christian-Democrats stubbornly refused and insisted on the human-rights-violating provision. Performing registered partnerships outside the office-rooms will therefore be banned again as of 1 November 2013.

„How much joy can people find in discriminating other people“, asks Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel of the applicants, “The couples will have to go to the Constitutional Court a second time to get rid also of the new law”. “An unbearable chicanery”, Graupner says.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, former Federal Ombudsman Mag. Terezija Stoisits, federal MPs Petra Bayr and Gerald Grosz, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).

More information:

Rechtskomitee LAMBDA
Phone: ++43/1/876 30 61
E-Mail: office@RKLambda.at
web: http://RKLambda.at
Facebook: https://www.facebook.com/pages/Rechtskomitee-Lambda-RKL/339636156146361

8 July 2013

Registrar´s Office: Sexual Apartheid goes Strasbourg

Exclusion from Registrar´s Office
Sexual Apartheid goes Strasbourg

RKL - Rechtskomitee Lambda

Rechtskomitee LAMBDA: “Constitutional Court violated its own case-law”

The Austrian Constitutional Court last October has affirmed the exclusion of same-sex couples from the civil registry offices where civil marriages are performed. Deportation ofr same-sex couples to the regional administrative offices would fall into the legislator´s margin of appreciation. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, expressed shock about the Constitutional Court having violated its own case-law and last week took the case to the European Court of Human Rights.

RKL-Secretary General Walter Dietz and his partner Boontawee Suttasom are living in Vienna and have been a couple for over 17 years. Manfred Hörmann and Felix Moser have been a couple for many years and are jointly running a farm in Stallhofen in Styria. Both couples had applied for performing civil marriage at the civil registry office. In case this being refused they applied for performing registered partnership at the civil registry office.

Their applications have been rejected and the case went up to the Constitutional Court, which now has dismissed the case (VfGH 9 October 2012, B 121/11, B 137/11).

Not only the prohibition of marriage but also the deportation of same-sex couples from the registrar´s office to the regional administrative offices, normally competent for the issuance of driving licences, industrial licences, residence permits and similar unromantic affairs would fall into the legislator´s margin of appreciation.

Austrian Anomaly

In respect of the marriage ban the Constitutional Court cited its reasoning from 2003 that opposite-sex couples would be basically oriented towards parenthood, despite the fact that not only Austrian legislation but also the catholic church ever since have admitted marriages of women after climacterium, marriages on the deathbed and marriages where both partners agree to abstain from sex (“mariage blanc”); all marriages which are not “basically oriented towards parenthood”.

The banning of same-sex couples from the civil registry office and their deportation to other offices traditionally not entrusted with civil status affairs is an Austrian and German anomaly. Apart from Austria only some German states had engaged in such discrimination. All of them have already repealed this blatant form of sexual racism.

Segregation of same-sex and opposite-couples in performing their formal partnership (marriage, registered partnership) had been one of the conservative party´s (ÖVP) prime conditions for voting in favour of the law on registered partnership. Back then today´s chairman of the conservative party and Austria´s vice-chancellor and foreign minister, Michael Spindelegger, stood out calling for heterosexual couples to be protected from being confronted with same-sex couples when marrying at the civil registry office. Just as back in racial apartheid when white people had been protected against sharing a bus or a restaurant with black people …

Constitutional Court at odds with its own case-law

In its law-of-names-judgments (judg. 22 September 2011, B 518/11, par. 23; judg. 3 March 2012, B 518/11, par. 18) and again recently in its ceremony-judgment (12 December 2012, B 125/11, B 138/11) the Constitutional Court held it to be prohibited discrimination when the only purpose of a distinction between hetero- and homosexual couples is segregation between the two groups (“qua principle”); distinctions must be necessary for particularly serious reasons the Court said. In sharp contrast the same Court in the current civil-registry-office-judgment confirms exactly such a blatant end-in-itself segregation (“qua principle”). The judges approved not only the prohibition of marriage but even the banning of same-sex couples from the civil registry office and their deportation to another, prosaic and unembellished office.

Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, deplores that the judges, called to be the watchdogs of human rights, did affirm not only segregation into a homosexual ghetto (registered partnership) on the one hand and a heterosexual ghetto (civil marriage) on the other, but confirmed even blatant sexual apartheid by banning same-sex couples from the civil registry office and deportating them to another, prosaic and unembellished office.

„We are shocked that the judges have confirmed this sexual apartheid unique worldwide“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel of the applicants, “with the same reasoning of margin of appreciation which it applied 1989 when having affirmed infamous anti-homosexual Art. 209 of the Criminal Code which later has been found by the European Court of Human Rights a serious violation of human rights”. “As back these days only the hope for the European Court of Human Rights remains”.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).

More information:

Rechtskomitee LAMBDA
Phone: ++43/1/876 30 61
E-Mail: office@RKLambda.at
web: http://RKLambda.at
Facebook: https://www.facebook.com/pages/Rechtskomitee-Lambda-RKL/339636156146361

27 May 2013

Dutch Couple Sues for Recognition of their Same-Sex Marriage

Austria

Dutch Couple Sues for Recognition of their Same-Sex Marriage

Rechtskomitee LAMBDA (RKL) continues its litigation offensive

RKL - Rechtskomitee Lambda

Chretien van der Leest und Edwin Veldt are living in Tyrol and are running holiday homes in St. Jakob im Haus. Both are citizens of the Kingdom of the Netherlands and had entered there into a registered partnership. When the Netherlands opened up marriage for same-sex couples in 2001, they married. With the support of Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, the couple has started a lawsuit for recognition of their same-sex marriage in Austria.

Union citizenship guarantees the couple to reside in any member-state of the Union and to work there, without having to accept disadvantages by using these freedoms.

This however exactly is what they are facing in Austria. While marriage between a man and a woman without any problem and always are recognised in Austria, their marriage, lawfully concluded in a Union sister-state, shall be downgraded to a registered partnership, which in Austria is only a second-class marriage. This downgrade is merely based upon a decree by the Minister of Interior which has no basis in Austrian legislation. Under Austrian legislation their marriage in fact is clearly recognized as a marriage (§ 17 International Private Law Act).

Violation of Union law

The married couple Veldt-van der Leest thus has to pay for the exercise of their Union citizenship and fundamental Union freedoms, namely with the downgrade of their marriage to an inferior registered partnership.

This downgrade could distract married couples from exercising their Union citizenship and fundamental Union freedoms, and therefore constitutes a violation of Union law. The married couple therefore decided to address the courts. At the civil status office they applied for a repetition of their marriage, in order to exclude doubts about the validity of their marriage. The 1st Executive Decree on the Austrian Marriage Act allows them to repeat their marriage if they have doubts on its validity or continuance (§ 13).

The civil status office refused them this repetition of marriage and the governor of Tyrol confirmed. The married couple now have taken their case to the Austrian Constitutional Court and to Administrative Supreme Court, and they asked these courts to refer their case to the Court of Justice of the European Union for a preliminary judgment.

„The married couple is determined to take their case up to the highest European courts“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel of the applicants.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).

More information:
Rechtskomitee LAMBDA

Phone +43 1 876 30 61
Mobile +43 676 309 47 37)
office@RKLambda.at
www.RKLambda.at

11 February 2013

Interview with Spain Newcomer Fraag Malas

Fraag Malas is 19 years old and his Videos on Youtube are watched by more than 3.000.000 users.

Fraag Malas - Ella Me Pone

Deutsch – http://news.de.pride-out.net/?p=2431

Malas was born on January 6th in 1994 at Aachen, Germany and live in Mallorca, where he has a big fanbase on Twitter. Fraag started his carrer on loading up Videos on Youtube, like the most young newcomers. The 19 year old describes his music as a mixture between Dance and Latin.

With his first Single “Ella Me Pone”, produced by DJ Sammy, he started his work with Roster Music.

GOTS: In spanish Newspaper you already named with artist, like Bruno Mars. How does it feel, to be famous?
Fraag: It feels normal, I just live my dream
GOTS: What all fans want to know is, if you´r in a relationship or not?
Fraag: I can´t talk about that 🙂 but no!
GOTS: You´r a also good looking guy, so all the girls and gay boys will screaming during your concerts. Is it possible for you do a relationship with a fan?
Fraag: Who knows HaHa
GOTS: It´s late an we don´t want to steal the gorgeous sapling his deep sound sleep. We hope, that the handsome young man will choose the right partner. We wish him only the best for his future and hope we’ll go for a common interview soon.

TWITTER : @officialfraag


 

Austria Constitutional Court: Same Ceremony as for Marriage

Registered Partnership

Constitutional Court: Same Ceremony as for Marriage

RKL - Rechtskomitee Lambda

Rechtskomitee LAMBDA sees governing coalition disgraced

In a decision delivered today the Austrian Constitutional Court has ordered to apply the same ceremony (wedding vow, witnesses etc.) for the formation of registered partnerships as for marriage. And it started proceedings to repeal the law prohibiting the performance registered partnerships outside the authority´s office-rooms. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, welcomes the decision and sees the federal governing coalition disgraced as just last month they have passed this law anew.

RKL-Secretary General Walter Dietz and his partner Boontawee Suttasom are living in Vienna and have been a couple for over 17 years. Manfred Hörmann and Felix Moser have been a couple for many years and are jointly running a farm in Stallhofen in Styria. Both couples had applied for the performance of a registered partnership like a “dream wedding” as it is offered to marrying couples, namely by a wedding vow in front of witnesses on the Vienna Giant Ferris Wheel and their own farm.

Decision on a wedding-dreamdate (12.12.12)

Austrian federal law prohibits the formation of registered partnerships outside the authority´s office-rooms (only exception: prisoners). Outside, like in the Giant Ferris Wheel, in a castle or on a farm; there civil servants are only allowed to hand over the documents (after the formation of the partnership within the office-rooms).

Both couples´ applications have been rejected and the case went up to the Constitutional Court, which now agreed with the applicants (VfGH 12.12.12, B 125/11, B 138/11).

Also same-sex couples enjoy the protection of family life under the European Convention of Human Rights and differences between marriage and registered partnership can only be justified by particularly serious reasons, the Constitutional Court said in its decision taken on a wedding-dreamdate (12.12.12).

Worldwide unique discrimination

The 14 constitutional judges could find no reasonable justification for the exclusion of a wedding vow and of witnesses. Neither could they find a basis for this legal practice in the legislation. They therefore ordered that authorities, with immediate effect, have to apply the same ceremony for registered partnerships as for marriages (including the wedding vow, the dictum that the partners now are lawfully bonded spouses or registered partners, and, if the couples so wish, including witnesses).

Also for the prohibition on the performance of registered partnerships outside the authority´s office-rooms the Constitutional Court could find no reasonable justification. In no other area authorities are obliged to confine their administrative acts to their office-rooms, the Court said and instigated proceedings to repeal this law.

The prohibition on the performance of registered partnerships outside the authority´s office-rooms is an Austrian anomaly. No other country in the world ever applied such discrimination. Nevertheless the federal governing coalition just one month (!) ago has passed this law anew.

„The Constitutional Court´s decision disgraces the federal government to the bone“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel of the applicants, “the government should start to govern and repeal all the discriminations of registered partnership instead of leaving this workload to the courts”.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).

More information:
Rechtskomitee LAMBDA

Phone +43 1 876 30 61
Mobile +43 676 309 47 37)
office@RKLambda.at
www.RKLambda.at

18 January 2013

Coming-Out

Coming-Out

There is a deciding phase in the life of a homosexual.
This is the period from the discovery of their personal condition to full acceptance of their homosexuality.
The length of time that this takes is different for every person.

The deciding questions in this period are:

Coming Out Pic 11How do I feel about my sexuality?
Am I homosexual, lesbian or bisexual?
How do I respond to my feelings for the same sex?
How can I learn to cope with my feelings?
How will my friends and acquaintances react?
How will I tell my parents, siblings and relatives?
How will my boss and work colleagues react?
Will I be able to show myself, hand in hand with my partner in public?

Coming Out Pic 4Coming out means satisfying yourself, recognizing your tendencies, strengths and weaknesses and using them to your advantage.
The step from hiding, to openly admitting that I am gay lesbian or bisexual is the biggest hurdle. Nevertheless, it can become one of the most rewarding part of your life. As you progress with small, but ever increasing steps, you will be met by feelings of relief and satisfaction.

Please Like us on Facebook to continue reading.

Hiv in Austria – Defendant Acquitted in Graz Blackmail-Case

Hiv in Austria – Defendant Acquitted in Graz Blackmail-Case
Rechtskomitee LAMBDA urges Minister of Justice to take action

RKL - Rechtskomitee Lambda

Once again an Austrian state-prosecutor attempted to criminalize state endorsed safer sex rules. This time in the Styrian capital Graz. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, urges the Minister of Justice, for the sake of public health, to stop such prosecutions.

The accused, who has no criminal record, is Hiv-positive. The state prosecutor initiated proceedings against him after another Hiv-positive man had accused him of infecting him with Hiv. Indeed the two men had sex with each other years ago, but in accordance with the safer sex rules propagated by the Ministry of Health and the Aids Service organisations (oral sex without ejaculation into the mouth).

Not the blackmailer prosecuted but the victim

The accuser, who has a massive criminal record of violent, drug and property offences, reported the defendant to the police (for anal intercourse without a condom and for insertive oral sex without ejaculation) years after the sexual contact and only after the man refused to fulfill his considerable financial demands (EUR 50.000-100.000,–). In addition the accuser admitted during his interrogation that he had unprotected sex with others, and he had searched for casual sex (“sexdates”) in the internet displaying in his profile “Safer Sex: Never”. Even more so the man, according to his own depositions, is addicted to heroin and thus had been exposed also to other non-sexual ways of transmission.

The case against the accuser (for aggravated blackmail) has been dropped immediately after the interrogation of both men due to „conflicting depositions“. Not so the case against the other man. He has been prosecuted for the offence of endangering humans by transmittable diseases (Art. 178 Criminal Code). Also unprotected sex between hiv-positives would be an offence and also oral sex without ejaculation into the mouth would constitute criminal behavior, the prosecutor said, contrary to state endorsed safer sex rules ((http://www.aids.at/alles-uber-hivaids/wie-kann-ich-mich-schutzen/; http://www.aidshilfen.at/sie-haben-fragen-wir-haben-antworten; https://www.gesundheit.gv.at/Portal.Node/ghp/public/content/Safer_Sex.html).

Prosecutor indicted safer sex

The Regional Court for Criminal Affairs of Graz refused to open the trial and rejected the weird prosecution, as it seemed not likely that the man would get convicted. Sex between hiv-positives would not be criminal and the prosecution had not even attempted to establish if the accuser at the time of the sexual contact could already have been infected. In addition varying probabilities of infection in anal and oral intercourse would indeed have to be considered. The prosecutor appealed but the Appeals Court of Graz confirmed the rejection of the prosecution (OLG Graz 16.02.2012, 8 Bs 40/12m).

Only then the prosecutor asked for the accuser´s latest hiv-negative test. Despite the fact that this test turned out to have been already two months old at the time the two men had their sexual contact, the prosecutor stubbornly once again tabled his bill of indictment, including again insertive oral sex without ejaculation, which is in accordance with the state endorsed safer sex rules.

After two days of trial the Regional Court for Criminal Affairs of Graz acquitted the defendant yesterday from the prosecution (endangering of public health by insertive oral sex without ejaculation and by insertive anal intercourse without a condom). Before the accuser himself had admitted before the court that he had sex not only with the defendant but also with other men and his physician testified that the accuser`s hiv-infection had not been fresh these days but rather one to three years old.

Double game played by the Justice?

In 2010 the Austrian Minister of Justice on the occasion of the Vienna World Aids-Conference had assured that Austrian criminal law would not criminalize sexual acts in accordance with the safer sex rules and declared that the prosecutors would be informed to this effect (4941/AB, 2 June 2010, http://www.parlament.gv.at/PAKT/VHG/XXIV/AB/AB_04941/).

Nevertheless last spring a 17 year old juvenile has been convicted for oral sex (without the allegation of ejaculation) with the judge even claiming that the use of a condom would not have made a difference (http://vorarlberg.orf.at/news/stories/2523707/). And just last Monday in Vienna a man had to face trial indicted explicitly and exclusively for oral sex without (!) ejaculation, behaviour explicitly propagated by the health authorities and the aids-service-associations. Also this man, like the one now in Graz, has been acquitted by the court, the judge saying that he behaved entirely properly (http://kurier.at/chronik/wien/hiv-ambulanz-im-wiener-akh-leidet-unter-personalmangel/1.926.101#section-1926299
http://derstandard.at/1355459879510/Safer-Sex-Regeln-eingehalten-Freispruch-fuer-HIV-Positiven-in-Wien). Not always however judges are so rational as these two judges, and even after acquittal the trauma of criminal prosecution and trial remains, as the costs for the defense do.

Austria Top Ten in hiv-criminalization

Austria finds itself within the top ten worldwide regarding criminal conviction rates of hiv-positive persons (http://www.gnpplus.net/criminalisation/node/1262). Germany never had such a special offence and Switzerland recently restricted its law (which never had been as far-reaching as the Austrian one) to infection with malicious intent, thereby implementing a recommendation by the Swiss Commission on Aids (now: Swiss Commission on Sexual Health) (http://www.bag.admin.ch/hiv_aids/05464/12494/12821/, document for download on the right side). UNAIDS and the EU-Fundamental Rights Agency for years have been calling for a repeal of such criminalisation of hiv-positive persons and for restriction of criminal offences to intentional infection (http://www.unaids.org.fj/index.php?option=com_content&view=article&id=162:unaidsundp-policy-brief-criminalization-of-hiv-transmission-&catid=25:technical-documents&Itemid=74; http://fra.europa.eu/en/publication/2010/rights-based-approach-hiv-european-union, http://www.hivjustice.net/oslo/oslo-declaration/).

„We are urging the Minister of Justice to stand by the 2010 assurances and stop such prosecutions“, says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “UNAIDS for years has been warning that such criminalization of hiv-positive people endangers effective hiv-prevention and thereby public health”.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).

More information: Rechtskomitee LAMBDA,
Mobil 0676/3094737
Tel 01/8763061
office@RKLambda.at
www.RKLambda.at

20 December 2012

HIV- Prosecutor Accepts Acquittal in Vienna Oral Sex Case

Hiv in Austria
Prosecutor Accepts Acquittal in Vienna Oral Sex Case

Rechtskomitee LAMBDA urges Minister of Justice to stop such prosecutions

RKL - Rechtskomitee Lambda

The prosecutor did not appeal the acquittal of the Hiv-positive man who had to stand criminal trial last Monday for practising safer sex propagated by the state and by the publicly funded aids service organisations. The prosecutor had indicted him for “oral sex without ejaculation” (!), exactly what has been propagated as safer sex for decades. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, urges the Minister of Justice, for the sake of public health, to make sure that such prosecutions won´t take place anymore.

The prosecution relied on Art. 178 of the Criminal Code (“wilful endangering of human beings by transmittable diseases”), an offence which for two decades had been used to convict persons (mostly women) even for sexual intercourse using a condom.

1997 the Supreme Court at last held that sexual intercourse with a condom is in accordance with the safer sex rules and no criminal offence (OGH 25.11.1997, 11 Os 171/97). And 2003 it  was only after years of reopening-proceedings that the Graz Appeals Court to quash the conviction of an hiv-positive man for oral sex without ejaculation (Carinthian Oral Sex Case: http://www.rklambda.at/news_safersex.htm). Already these days Austria´s then Minister for Health, Herbert Haupt, had stated, “that criminal persecution and conviction of hiv-positive persons for sexual contacts with hiv-negative persons in spite of them complying with the health authorities’ and aids-service-organisations´ safer sex rules run counter to effective hiv- and Aids-prevention (2313/AB XXI.GP, http://www.parlament.gv.at/PAKT/VHG/XXI/AB/AB_02313/).

Threat to effective hiv-prevention

Austria finds itself within the top ten worldwide regarding criminal conviction rates of hiv-positive persons (http://www.gnpplus.net/criminalisation/node/1262). Germany never had such a special offence and Switzerland recently restricted its law (which never had been as far-reaching as the Austrian one) to infection with malicious intent, thereby implementing a recommendation by the Swiss Commission on Aids (now: Swiss Commission on Sexual Health) (http://www.bag.admin.ch/hiv_aids/05464/12494/12821/, document for download on the right side). UNAIDS and the EU-Fundamental Rights Agency for years have been calling for a repeal of such criminalisation of hiv-positive persons and for restriction of criminal offences to intentional infection (http://www.unaids.org.fj/index.php?option=com_content&view=article&id=162:unaidsundp-policy-brief-criminalization-of-hiv-transmission-&catid=25:technical-documents&Itemid=74; http://fra.europa.eu/en/publication/2010/rights-based-approach-hiv-european-union, http://www.hivjustice.net/oslo/oslo-declaration/).

Accordingly the Austrian Minister of Justice in 2010 on the occasion of the Vienna World Aids-Conference had assured that Austrian criminal law would not criminalize sexual acts in accordance with the safer sex rules and declared that the prosecutors would be informed to this effect (4941/AB, 2 June 2010, http://www.parlament.gv.at/PAKT/VHG/XXIV/AB/AB_04941/).

Double game played by the (Minister of) Justice?

Nevertheless last spring a 17 year old juvenile has been convicted for oral sex (without the allegation of ejaculation) with the judge even claiming that the use of a condom would not have made a difference (http://vorarlberg.orf.at/news/stories/2523707/). And now in Vienna the prosecutor had indicted this man explicitly even for oral sex without (!) ejaculation, behaviour explicitly propagated by the health authorities´ and the aids-service-associations´ (http://www.aids.at/alles-uber-hivaids/wie-kann-ich-mich-schutzen/; http://www.aidshilfen.at/sie-haben-fragen-wir-haben-antworten; https://www.gesundheit.gv.at/Portal.Node/ghp/public/content/Safer_Sex.html). Also in Graz a man faced a similar prosecution (www.RKLambda.at).

Trauma and financial burden remains

In both cases the courts acquitted the defendants. In the Vienna oral sex case the judge explicitly said that the man behaved entirely properly (http://kurier.at/chronik/wien/hiv-ambulanz-im-wiener-akh-leidet-unter-personalmangel/1.926.101#section-1926299
http://derstandard.at/1355459879510/Safer-Sex-Regeln-eingehalten-Freispruch-fuer-HIV-Positiven-in-Wien). Not always however judges are as rational as these two judges, and even after acquittal the trauma of criminal prosecution and trial remains, as the costs for the defense do.

„We are urging the Minister of Justice to stand by the 2010 assurances and stop such prosecutions“, says president of Rechtskomitee LAMBDA (RKL) and defence counsel of the man, Dr. Helmut Graupner, “UNAIDS for years has been warning that such criminalization of hiv-positive people endangers effective hiv-prevention and thereby public health”.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).

More information: Rechtskomitee LAMBDA,
Mobil 0676/3094737
Tel 01/8763061
office@RKLambda.at
www.RKLambda.at

21 December 2012