E.B. v. AUSTRIA
Inadmissible
Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
1. The applicant, Mr E.B., was an Austrian national, born in 1947. The President granted the applicants’ requests for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr H. Graupner, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 December 2004 the Vienna Regional Court convicted the applicant of sexual acts with persons under the age of 14 (Article 207 of the Criminal Code) and with persons under the age of 16 not mature enough to understand the act, taking advantage of this immaturity (Article 207b of the Criminal Code), and sentenced him to three years’ imprisonment. His criminal record, which at the time consisted of twelve convictions, of which nine concerned sexual offences involving adolescents, was treated as an aggravating circumstance. These previous convictions were as follows: - In 1978 the applicant was convicted in a Dutch court of indecent acts with adolescents (unzüchtige Handlungen mit Jugendlichen), for which he was sentenced to two weeks’ imprisonment and fined. - On 23 September 1982 the Innsbruck Regional Court convicted him of homosexual acts with consenting male persons between 14 and 18 years of age (Article 209 of the Criminal Code, as in force at the time) and sentenced him to ten months’ imprisonment. On 10 August 1983 the Innsbruck Court of Appeal reduced the sentence to seven months’ imprisonment. - In 1989 the applicant was convicted in the Feldkirch Regional Court of attempted fornication with persons under the age of 14 (Article 207 of the Criminal Code) and fined. - In 1990 the applicant was convicted in the same court of an offence under the same provision, namely fornication with persons under the age of 14. He was sentenced to nine months’ imprisonment. - In 1992 the applicant was convicted in a German Court of sexual abuse of persons under the age of 14 and sentenced to six months’ imprisonment. - In 1995 the applicant was convicted in a German Court of the same offence and sentenced to one year and ten months’ imprisonment. - In 1997 the applicant was convicted in a Hungarian court of sexual abuse involving minors (sexueller Missbrauch von Minderjährigen) and sentenced to three years’ imprisonment. - On 18 November 1999 the Vienna Regional Court convicted him of an offence under Article 209 of the Criminal Code, as in force at the time and sentenced him to two years and six months’ imprisonment. On 30 March 2000 the Supreme Court partly acquitted him and reduced the sentence to one year’s imprisonment. - On 6 April 2001 the Vienna Regional Court convicted him of an offence under the same provision and sentenced him to one year’s imprisonment. The applicant did not appeal. 5. On 22 March 2005 the Supreme Court rejected a plea of nullity lodged by the applicant and on 3 May 2005 the Vienna Court of Appeal dismissed an appeal lodged by him against the judgment of 1 December 2004 (see paragraph 4 above). 6. On an unspecified date the applicant asked for early release from prison. 7. On 27 April 2006 the Korneuburg Regional Court dismissed the applicant’s request. It noted that under Article 46 of the Criminal Code a court may grant early release if a prisoner has served two thirds of his sentence, unless there were specific reasons to expect that this person would commit criminal offences while at liberty. The Regional Court considered that the applicant had not shown that he had seen sense and was still playing down the offences committed by him. Moreover, his numerous previous convictions for sexual offences involving minors (Minderjährige) had not succeeded in getting him to conform to standards of law-abiding behaviour (normangepasstes Verhalten). For that reason he had to serve his entire prison sentence. 8. On 16 May 2006 the applicant lodged an appeal against the decision refusing his early release. He submitted that the Regional Court’s reliance on his previous convictions under Article 209 of the Criminal Code constituted a breach of Article 14 read in conjunction with Article 8 of the Convention, because Article 209 had been quashed by the Constitutional Court on 21 June 2002 as being unconstitutional. 9. On 13 June 2006 the Vienna Court of Appeal dismissed the applicant’s appeal, holding that the Regional Court had acted correctly in taking also the applicant’s Article 209 convictions into account, even though the provision was constitutionally problematic. Having examined the files concerning the criminal proceedings against the applicant under that provision, it was apparent from the circumstances of the criminal acts, as well as the age and personality of the victims, that a conviction of the applicant would have also been justified under the legal provisions brought in to replace Article 209, which were constitutionally compliant. In view of these considerations, and also taking into account the applicant’s other convictions, the Regional Court had been correct in concluding that the conditions for the applicant’s release under Article 46 § 2 of the Criminal Code were not fulfilled because of the applicant’s incorrigible personality, as he resisted all measures of social reintegration, played down his acts and showed no remorse. 10. Accordingly, the applicant served the full sentence. He died on 14 September 2008.