[1] Article 209 of the Austrian Criminal Code set the age of consent for male homosexual sex at 18 years, 4 years higher than the age of consent for heterosexual and lesbian sex, which was instead set at 14.
He lived in a rural area where homosexuality is still taboo, and suffered from the fact that he could not live his homosexuality openly and – until he reached the age of 18 – could not enter into any fulfilling sexual relationship with an adult partner without having a fear of exposing that person to criminal prosecution.
A male person who after attaining the age of nineteen fornicates with a person of the same sex who has attained the age of fourteen years but not the age of eighteen years shall be sentenced to imprisonment for six months to five years.On 2 June 2002, Article 209 was declared unconstitutional by the Austrian Constitutional Court; on 10 July 2002, it was repealed by Parliament, which introduced a new provision (Article 207b) penalizing sexual acts with a person under sixteen years of age if that person was for certain reasons not mature enough to understand the meaning of the act and the offender took advantage of this immaturity or if the person under sixteen years of age was in a predicament and the offender took advantage of that situation.
The development following the judgment of the Constitutional Court did not affect the applicant’s status as a victim.
It came to the conclusion that to the extent that Article 209 of the Criminal Code embodied predisposed bias on the part of a heterosexual majority against the homosexual minority, these negative attitudes could not themselves provide sufficient justification for the differential treatment anymore.