Women and Justice: Location

Domestic Case Law

Ms. A v. Mr. B [GBK I/408/12] Equal Treatment Commission (2014)

Sexual harassment

In this case, the Applicant brought an action against an older classmate in a vocational course for incessantly taunting and making sexually crude comments to or in the presence of the Applicant. Austria’s Equal Treatment Commission (the “Commission”) concluded that this amounted to sexual harassment in violation of Section 6 para. 1 of the Federal Equal Treatment Act (Bundesgleichbehandlungsgesetz). This opinion is notable for the Commission’s recognition that taking the woman’s age into account is important to the extent that harassed persons deal differently with such treatment and take different lengths of time to process sexual harassment. The Commission considered the practical links between hierarchy, power and sexual harassment, noting that while the occurrence of sexual harassment is always an unacceptable intrusion into the human dignity of the harassed persons, young people are particularly vulnerable. 



B-GBK I/178/16 Equal Treatment Commission (2016)

Employment discrimination

After a restructuring of the Austrian Armed Forces, female civil servants were excluded from the newly created supervisory roles, which were instead awarded to males with comparable experiences to their female counterparts. Representatives from the Austrian Armed Forces claimed that for reasons of efficiency and expediency, the reorganization sought to keep employees who were above age 50 and with presumably the shortest period of service remaining without regard to technical competencies or personal suitability. The Equal Treatment Commission found this to be a violation of Article 4 (5) of Austria’s Federal Equal Treatment Act (Bundesgleichbehandlungsgesetz), which prohibits direct or indirect discrimination on the grounds of sex in the context of professional advancement. 



C1 427.265-1/2012/7E Asylum Court (2012)

Forced and early marriage, Harmful traditional practices

The Applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, in part because the Federal Asylum Agency failed to adequately investigate and assess the dangers to the Applicant in Afghanistan. The Asylum Court found that the Federal Asylum Agency erred in summarily denying asylum based on the Applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court concluded that the Applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the Applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Specifically, returning to Afghanistan would mean that the Applicant would be raised to be a homemaker despite any wishes to have a career outside the home, would be married to a man chosen by her father or grandfather, and her freedom of movement and educational opportunities would be severely restricted. In granting the Applicant’s asylum claim, Austria’s Asylum Court considered both gender-specific and child-specific factors that were not brought forth by the Applicant but rather gathered from credible investigative sources. 



Unknown v. Austria Asylum Court (2012)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices

A female minor applicant whose home state was Afghanistan, together with her parents and four minor siblings, applied for international protection in Austria. The Federal Asylum Agency refused and the applicant appealed. The Asylum Court upheld the appeal and granted asylum. In particular, the Asylum Court noted that on return to Afghanistan, the applicant would, among other things, (1) receive no education, (2) be married to a man chosen by her father or grandfather, (3) not have the opportunity to lead an independent life in line with her beliefs, and (4) not have the opportunity to protect herself against violence and undesired restrictions.



Unknown v. Austria Asylum Court (2011)

Gender discrimination, LGBTIQ

The applicant travelled to Austria and underwent gender reassignment operations, was treated with hormones, and then lived as a woman in Austria. When the applicant attempted to extend her Egyptian passport at the embassy or to have it changed to female, she was informed that she must travel to Egypt to do so. Fearing persecution in Egypt, the applicant applied for asylum. The Asylum Court eventually granted the application, finding that transsexuality is not accepted in Egypt, that the applicant would be subject to attacks on her person without police or official protection, and that there was no legal option in Egypt for the applicant to change her documents and live officially with a different gender.



T.M. et. al. v. Miroslava T. T. et. al. Austria Supreme Court (2009)

Sexual violence and rape, Trafficking in persons

The defendants were held guilty of violating several provisions of the Austrian Criminal Code after the lower court found that they acted as a criminal organization to recruit victims by means of extortion, massive violence, penalties for not performing sex work and threats and arranged for the victims’ transfer and accommodation in brothels in Austria. After an appeal on procedural grounds, the Austrian Supreme Court upheld the convictions.



Maria N. et. al. v. Ferenc D. Austria Supreme Court (2011)

Sexual violence and rape, Trafficking in persons

The defendant was convicted of trafficking in persons for the purpose of prostitution after the lower court found that he lured the victims from Hungary into Austria under the false pretext that they could work as cleaners in an Austrian Hotel and then threatened them with injury or death to force them to work as prostitutes. The Austrian Supreme Court upheld the conviction on appeal.



C16 427.465-1/2012/7E Asylum Court (2012)

Forced and early marriage, Harmful traditional practices

The Applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, in part because the Federal Asylum Agency failed to adequately investigate and assess the dangers to the Applicant in Afghanistan. The Asylum Court found that the Federal Asylum Agency erred in summarily denying asylum based on the Applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court concluded that the Applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the Applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Specifically, returning to Afghanistan would mean that the Applicant would be raised to be a homemaker despite any wishes to have a career outside the home, would be married to a man chosen by her father or grandfather, and her freedom of movement and educational opportunities would be severely restricted. In granting the Applicant’s asylum claim, Austria’s Asylum Court considered both gender-specific and child-specific factors that were not brought forth by the Applicant but rather gathered from credible investigative sources.



International Case Law

Omeredo v. Austria European Court of Human Rights (2011)

Female genital mutilation or female genital cutting

The applicant is a Nigerian national who fled due to not wanting to undergo female genital mutilation (FGM) and sought asylum in Austria. Austria rejected her application for asylum and she appealed, complaining under Article 3 of the Convention that she runs the risk of being forced to undergo FGM if she is expelled to Nigeria. The Court rejects her application because they reasoned that due to her age and work experience she should have been able to live in Nigeria on her own.



Mayr v. Bäckerei und Konditorei Gerhard Flöckner OHG European Court of Justice (2008)

Employment discrimination, Gender discrimination

Ms. Mayr was employed as a waitress with Konditorei Gerhard Flöckner, and was terminated while undergoing in vitro fertilization. Ms. Mayr then filed suit to recover payment of her salary and pro rata annual remuneration, arguing that from the date on which in vitro fertilization of her ova took place, she was entitled to the protection against dismissal provided by Austrian legislation. After proceedings in the lower courts, the Austrian Supreme Court referred to the European Court of Justice the question of whether a female worker is entitled to protection from dismissal where her ova have been fertilized but not yet transferred to her uterus. The European Court of Justice answered the question in the negative. But the Court also held that EU Directives on the implementation of equal treatment for men and women as regards access to employment, vocational training and working conditions preclude the dismissal of a female worker who is undergoing in vitro fertilization treatment where it is established that the dismissal was based on such treatment.



Pensionsversicherungsanstalt v. Kleist European Court of Justice (2010)

Employment discrimination, Gender discrimination

Mrs. Kleist, who was employed as chief physician for the pension insurance institution, was terminated pursuant to a policy requiring termination of all employees, whether male or female, upon reaching the age at which they could draw a public retirement pension. Mrs. Kleist argued that the termination policy was discriminatory because, under the pension statute, women were able to draw a pension at an age five years younger than men; thus requiring their termination five years earlier. After proceedings in the lower courts, the Austrian Supreme Court referred to the European Court of Justice the question of whether the policy constituted prohibited discrimination on the grounds of sex. The Court answered the question in the affirmative, holding that since the criterion used by such a policy is inseparable from the worker’s sex, there is a difference in treatment that is directly based on sex. Having found direct discrimination, the Court also held that the difference in treatment could not be justified by the objective of promoting employment of younger persons.



Brachner v. Pensionsversicherungsanstalt European Court of Justice (2011)

Gender discrimination, Property and inheritance rights

Ms. Brachner brought an action against the Pensionsversicherungsanstalt arguing that the implementation of an adjustment factor for pensions, established in 2008, resulted in indirect discrimination against women who were disproportionately less likely to qualify for an exceptional pension increase. Upon referral from the Austrian Supreme Court, the European Court of Justice held that (1) an annual pension adjustment scheme comes within the scope of the EU Directive guaranteeing equal treatment of men and women in matters of social security, (2) a national arrangement that excludes from an exceptional pension increase a significantly higher percentage of female pensioners would violate the Directive, and (3) the disadvantage cannot be justified by the fact that women receive their pension at an earlier age or that they receive their pension over a longer period.



Goekce v. Austria CEDAW Committee (2007)

Domestic and intimate partner violence

Sahide Goekce’s husband shot and killed her in front of their two daughters in 2002. Before her death, Ms. Goekce had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The Vienna Public Prosecutor denied police requests to detain Mr. Goekce, and stopped the prosecution against him on the basis of insufficient grounds of prosecution two days before Ms. Goekce’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in Ms. Goekce’s death. The complaint to the Committee on behalf of the decedent stated that Austria’s Federal Act for the Protection against Violence within the Family provides ineffective protection for victims of repeated, severe spousal abuse and that women are disproportionately affected by the State’s failure to prosecute and take seriously reports of domestic violence. The Committee found that although Austria has established a comprehensive model to address domestic violence, it is necessary for State actors to investigate reports of this crime with due diligence to effectively provide redress and protection. The Committee concluded that the police knew or should have know that Ms. Goekce was in serious danger, and were therefore accountable for failing to exercise due diligence in protecting her. By allowing the perpetrator’s rights to supersede Ms. Goekce’s human rights to life and to physical and mental integrity, Austrian law enforcement violated it obligations under article 2 to end gender discrimination through the modification or enactment of appropriate legislation, and its article 3 obligation to guarantee women’s exercise and enjoyment of human rights and fundamental freedom on a basis of equality with men. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for failure to do so.



Yildirim v. Austria CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Fatma Yildirim sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to Yildirim’s numerous reports of assault and dangerous criminal threats, the Austrian police issued an expulsion and prohibition-to-return order against her husband. The police also recommended that her husband be detained, but the Vienna Public Prosecutor twice denied the request. Yildirim appealed to the Vienna Intervention Center after her husband repeatedly came to her workplace to harass and threaten her; the Center asked the police to pay more attention to Yildirim’s case. When Yildirim finally filed a petition for divorce at the Vienna District Court of Hernals, her husband followed her home from work and fatally stabbed her. The complaint stated that the State’s action violated article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) because the Austrian criminal justice system negatively impacts women through the public prosecutors’ failure to treat cases of domestic violence seriously. The complaint also cited the failure of judicial officials and law enforcement to collect data and maintain statistics on domestic violence instances denied Yildirim the enjoyment of her human rights in violation of article 2 and 3 of CEDAW on eliminating laws, regulations, and customs that adversely effect women . Finally, the complaint stated a violation of article 5 of the Convention on eliminating social and cultural attitudes towards women in the State’s continual treatment of domestic violence as a social or domestic problem rather than a serious crime. The Committee held that the Austrian police force’s failure to detain Yildirim’s husband was in breach of the State’s due diligence obligation to protect Yildirim, noting that a perpetrator’s rights cannot superseded women’s human rights to life and to physical and mental integrity. The Committee also took note of the correlation between lenient attitudes towards women’s cultural subordination and domestic violence. Although Austria prosecuted Yildirim’s husband to the fullest extent for her death, the Committee found violations of articles 2, 3, and 5 and recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Prevention against Violence within the Family, and ensure enhanced coordination between police and judicial officers to protect women victims of gender-based violence.