Austria to compensate gay men convicted under discriminatory laws

The Austrian government is set to pay tens of millions of euros in compensation to gay people who were persecuted or convicted of consensual homosexual acts.

The new legislation would apply to anyone convicted under specific sections of Austria’s legal code that were put in place after homosexuality was decriminalised in 1971. 

These special paragraphs convicted gay people of acts that would have been legal if they were straight. The last of these provisions was only repealed by the Constitutional Court in 2002.

“The prosecution of homosexual people was a dark chapter of the Second Republic (government post-1945) and a great injustice,” Austria’s Justice Minister Alma Zadić posted on X, formerly Twitter. 

“On behalf of the entire judiciary, I apologised for this injustice to all people who were prosecuted because of their sexual orientation.”

How were gay men targeted by the legal provisions?

After the decriminalisation of homosexuality in 1971, four new criminal provisions were added to Austria’s criminal code, each specifically directed at the prosecution of gay men by targeting an aspect of sexuality that was not the same for heterosexual people or lesbians.

A special age limit for gay relationships was established at 18, compared with 14 for heterosexuals and lesbians, while gay prostitution was criminalised, unlike lesbian and heterosexual prostitution. Also criminalised was the approval, or advertisement of fornication with the same-sex, and the founding or membership of LGBTQ+ associations.

Whilst the last of these provisions was appealed in 2002, the criminal record and sentences were not, and some people who were convicted spent time in institutions branded as ‘mentally abnormal criminals.” 

Compensation and reparation

Austria’s Rehabilitation and Compensation Act, which is part of the national budget in 2024, will see compensation payment of €3,000 for each overturned judgment, €1500 for each year spent in jail or €500 for each investigation initiated under the relevant criminal paragraphs. 

A flat rate of €1,500 is also intended to compensate people who have suffered from professional, economic or health disadvantages.

The Ministry of Justice expects around 11,000 applications for criminal rehabilitation and compensation. The costs for this are estimated at €10.8 million in the coming year and €3 million in each of the following years with €33 million marked for the compensation fund altogether.

All sentences which were passed on the basis of these specific provisions will also be repealed.

Spain, Germany, UK and Scotland address historic injustices

Austria is not the only European country to address its past shortcomings in the treatment of LGBT people. 

In 2017 Germany also wiped convictions and financially compensated those who had been persecuted under discriminatory anti-homosexual laws during the Nazi and Cold War era, some lasting until 1994. 

In 2001 Spain wiped the criminal records of gay and bisexual men and women who were imprisoned during dictator Francisco Franco’s rule from 1939 until his death in 1975. A budget allocation of €2 million was allocated to fund compensation for those persecuted, although this ended in 2013. 

In the UK, anyone who has a conviction for same-sex sexual activity under an offence which has since been repealed or abolished, can apply to have their conviction disregarded and pardoned. 

And in Scotland in 2020, the government issued an automatic pardon to all men with convictions for same-sex sexual activity that is now legal. The pardon applied to the living and to people who have since died. 

“The pardon is symbolic,” the Scottish government said at the time. “It means that the Government accepts these convictions were discriminatory and should never have happened.” 

Good, but good enough?

Although the compensation marks a landmark victory for LGBTQ+ and human rights groups in Austria, some still see the compensation as just one remedy for a community that has been dealing with discrimination for decades.

“People were unjustly imprisoned here and were unable to work during this time. It is therefore essential that the periods of imprisonment are credited towards the pensions.” Ann-Sophie Otte, chairwoman of the Homosexual Initiative in Vienna told Euronews.

“The fines imposed must also be repaid with interest. We very much hope that the rehabilitation and compensation will also be followed by an apology from the National Council, because after all, it was the National Council that passed these laws in the first place,” she said. 

LGBTQ+ rights organisation Rechtskomitee, who were instrumental in repealing the criminal codes up until 2002, also celebrated the compensation, but pointed out how the amount of compensation the Austrian government is offering falls far short of the numbers calculated by the European Court of Human Rights.