PROCEDURE

The case originated in an application (no. 5263/03) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Thomas Wolfmeyer (“the applicant”), on 30 January 2003.

The applicant was represented by Mr H. Graupner, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

On 22 September 2003 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1968 and lives in Bludenz.

In May 2000 the Feldkirch Regional Court (Landesgericht) opened criminal proceedings against the applicant on suspicion of having committed homosexual acts with adolescents contrary to Article 209 of the Criminal Code.

On 23 November 2000 the Regional Court, after having held a trial, convicted the applicant under Article 209 of the Criminal Code and sentenced him to six months' imprisonment suspended on probation. It found that, in 1997, he had performed homosexual acts with two adolescents.

Upon the applicant's appeal, the Innsbruck Court of Appeal (Oberlandesgericht) requested the Constitutional Court (Verfassungs-gerichtshof) to review the constitutionality of Article 209.

On 29 November 2001 the Constitutional Court dismissed this request (see paragraph 22 below).

On 20 December 2001 the Innsbruck Court of Appeal filed a new request for review of the constitutionality of Article 209.

On 21 June 2002 the Constitutional Court gave a judgment holding that Article 209 of the Criminal Code was unconstitutional (see paragraph 23 below).

The amendment repealing Article 209 entered into force on 14 August 2002. While, according to the transitional provisions, Article 209 remained applicable in all cases in which the judgment at first instance had already been given before the entry into force of the amendment, it could no longer be applied in the applicant's case since it had been the case in point (Anlaßfall) before the Constitutional Court.

On 17 July 2002 the Innsbruck Court of Appeal, noting that the Constitutional Court had repealed Article 209 as unconstitutional, acquitted the applicant. This decision was served on him on 12 August 2002.

On 20 September 2002 the Feldkirch Regional Court dismissed the applicant's request for reimbursement of his defence costs holding that under Article 393a (3) of the Code of Criminal Procedure (Strafprozeßordnung) no right to compensation existed if the accused was not punishable on grounds which occurred after the indictment was filed.

On 12 November 2002 the Innsbruck Court of Appeal partly granted the applicant's appeal, awarding him reimbursement of a total amount of 1,839.38 euros (EUR) for costs and expenses. It found that the Regional Court had wrongly applied Article 393a (3) of the Code of Criminal Procedure. The applicant's case had been the case in point before the Constitutional Court leading to the repeal of Article 209 of the Criminal Code. His case had to be treated as if Article 209 had never existed. Consequently, it could not be said that he was acquitted on grounds which occurred after the indictment.

The court found that the applicant's defence costs including the costs relating to the proceedings before the Constitutional Court, in which the applicant, as an interested party (mitbeteiligte Partei), had made detailed submissions, had been necessarily incurred. However, the law provided that only a maximum amount of EUR 1,091 was to be reimbursed as contribution to the defence costs. In addition EUR 748,38 were awarded for cash expenses.