PROCEDURE

The case originated in two applications (no. 69756/01 and no. 6306/03) 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 Austrian nationals, Mr Michael Woditschka (“the first applicant”) and Mr Wolfgang Wilfling (“the second applicant”), on 13 May 2001 and on 23 January 2002, respectively.

The applicants were 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 10 October 2002 and 21 March 2002, respectively, the Court decided to communicate the applications to the Government. On 12 June 2003 it decided to examine the merits of the applications at the same time as its admissibility pursuant to Article 29 § 3 of the Convention.

THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

A. The first applicant

The first applicant was born in 1979 and lives in Vienna.

On 19 July 2000 the Vienna Regional Court (Landesgericht für Strafsachen) convicted the first applicant under section 209 of the Criminal Code of having committed homosexual acts with an adolescent and sentenced him to a fine of ATS 4,500 (approximately EUR 330) with 75 days’ imprisonment in default. The sentence was suspended on probation. The Regional Court found that, in September 1999, the first applicant, who was then twenty years old, had had about ten homosexual contacts with a sixteen-year-old. In determining the sentence the court had regard to the applicant’s confession and his young age as a mitigating circumstance, as well as to the repetition of the offence as an aggravating circumstance.

On 13 November 2000 the Vienna Court of Appeal (Oberlandesgericht) dismissed the first applicant’s appeal on points of law, in which he had complained that section 209 of the Criminal Code was discriminatory and violated his right to respect for his private life, and in which he had also suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision.

B. The second applicant

The second applicant was born in 1964 and lives in Traiskirchen.

On 7 August 2001 the Wiener Neustadt Regional Court ordered the second applicant’s detention on remand on suspicion of having committed homosexual acts with an adolescent contrary to section 209 of the Criminal Code.

On 24 August 2001 the Wiener Neustadt Regional Court convicted the second applicant under section 209 of the Criminal Code and sentenced him to fifteen months’ imprisonment, fourteen of which were suspended on probation. It found that, from March 2001 until his arrest, the second applicant had a homosexual relationship with a seventeen-year-old. In determining the sentence the court had regard to the applicant’s confession as a mitigating circumstance, as well as to the repetition of the offence and a previous conviction as aggravating circumstances.

On 7 September 2001 the second applicant was released from detention on remand.

On 23 October 2001 the Vienna Court of Appeal (Oberlandesgericht) dismissed the second applicant’s appeal on points of law, in which he had complained that section 209 of the Criminal Code was discriminatory and violated his right to respect for his private life, and in which he had also suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. Upon the Public Prosecutor’s appeal it changed the sentence to the effect that only ten out of fifteen months of imprisonment were suspended on probation.

Subsequently the second applicant was granted a stay of the execution of his sentence. On 7 July 2002 he requested a pardon and a further stay of execution pending the decision on his request for pardon. On 11 July 2002 the Wiener Neustadt Regional Court granted a further stay of execution.

On 23 September 2002 the Federal President, upon the second applicant’s request, granted him a remission of the remaining sentence.