PROCEDURE

The case originated in an application (no. 18297/03) 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 a Austrian national, Mr Franz Ladner (“the applicant”), on 3 June 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 applicant’s complaint that the maintenance in force of Article 209 of the Criminal Code and his conviction under this provision discriminated him in the enjoyment of his private life 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 1964 and lives in Vienna.

On 14 February 2001 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) ordered the applicant’s detention on remand on suspicion of having committed homosexual acts with adolescents contrary to Article 209 of the Criminal Code. The applicant was released on 27 February 2001.

Also on 14 February 2001 the investigating judge ordered a search of the applicant’s premises, as he was also suspected of owning child pornographic material. A number of video-tapes were seized but the suspicion was not confirmed and the subsequent proceedings were conducted for charges under Article 209 alone.

On 24 September 2001 the Regional Court decided to discontinue the proceedings on the condition of payment of a penalty of 20,000 Austrian schillings. The Public Prosecutor’s Office appealed against this decision.

On 11 December 2001 the Vienna Court of Appeal (Oberlandesgericht) quashed the Regional Court’s decision and referred the case back to it.

On 15 January 2002 the Regional Court convicted the applicant under Article 209 of the Criminal Code and sentenced him to three months’ imprisonment suspended on probation. It found that, between 1994 and 2001, the applicant had performed homosexual acts with four different adolescents.

On 3 December 2002 the Vienna Court of Appeal dismissed the applicant’s appeal on points of law. It referred to the Constitutional Court’s judgment of 21 June 2002 which had found that Article 209 of the Criminal Code was unconstitutional. However, the amendment of the law, which had repealed Article 209 did not apply to proceedings, in which the first instance court’s judgment had already been given before its entry into force on 14 August 2002. The decision was served on the applicant on 4 July 2003.

The applicant’s petition for a pardon was of no avail.

On 3 April 2003 the Federal Minister of Justice replied to questions put by members of Parliament concerning the granting of a pardon in cases of convictions under Article 209. In these questions the applicant’s case was referred to by the file number and the date of the final decision. The Minister stated, without mentioning the applicant’s name, that he had denied a pardon in this case, as the conduct of the person concerned would also qualify as an offence under the newly introduced Article 207b, as in one case that person had taken advantage of the adolescent’s predicament, i.e. the fact that the latter had, following a conflict with his parents, temporarily lived in that person’s apartment.