CASE OF E.B. AND OTHERS v. AUSTRIA
Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The first applicant, Mr E. B., is an Austrian national born in 1947. 6. On 23 September 1982 the Innsbruck Regional Court convicted the applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to ten months’ imprisonment. On 10 August 1983 the Innsbruck Court of Appeal reduced the sentence to seven months’ imprisonment. 7. On 18 November 1999 the Vienna Regional Court convicted the applicant of other offences under the same provision 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. 8. On 6 April 2001 the Vienna Regional Court convicted the applicant under Article 209 of the Criminal Code and sentenced him to one year’s imprisonment. The applicant did not appeal. 9. All those convictions were entered in the applicant’s criminal record. 10. On 8 May 2006 the first applicant applied to have each conviction under Article 209 of the Criminal Code deleted from his criminal record on the grounds that Article 209 of the Criminal Code had been repealed by the Constitutional Court in the meantime. On 20 October 2006 the Federal Minister of the Interior dismissed his application. 11. On 29 November 2006 the applicant applied for legal aid in order to lodge a complaint against the Federal Minister’s decisions with the Administrative Court and the Constitutional Court. 12. On 18 December 2006 the Constitutional Court dismissed the request for legal aid, holding that the applicant’s complaint had no prospect of success. It noted that in a previous judgment of 4 October 2006 it had found that the administrative authorities were only entitled to execute the orders of the criminal courts concerning registration, but that they had no competence to review on their own initiative the lawfulness of the respective order on its merits. Since a review of the lawfulness of an ordinary court’s decision by an administrative authority would be in contradiction to the separation of powers under constitutional law, the Federal Ministry of the Interior’s decision had not breached the law. 13. On 12 December 2006 the Administrative Court, referring to the Constitutional Court’s case-law, according to which the authorities were only entitled to check whether a mistake had occurred when a conviction was registered, but not to decide on the lawfulness of an entry on their own initiative, dismissed the applicant’s request for legal aid on the grounds that his complaint lacked any prospect of success. 14. On an unspecified date the first applicant lodged a request for a renewal of each set of criminal proceedings which had led to his convictions under Article 209 of the Criminal Code with the Supreme Court in order to seek the quashing of the convictions, with a view to their subsequent deletion from his criminal record. 15. By decisions of 27 September 2007, 23 October 2007 and 15 November 2007 respectively, the Supreme Court rejected the application. As the highest instance for criminal proceedings, it found that it had, in principle, the competence to take the necessary decisions in fulfillment of its obligations arising from the Federal Constitution and the European Convention on Human Rights. However, in order to safeguard the principle of legal certainty, it had to apply the same admissibility criteria as the European Court of Human Rights under the Convention. This meant that applying Article 35 § 1 of the Convention per analogiam, a request for a renewal of the criminal proceedings had to be submitted within a period of six months after the conviction had become final and that the applicant had to have exhausted domestic remedies. It rejected the applicant’s request because it had been introduced outside of the six-month period and, as regards the first set of proceedings, on the additional ground that the applicant had failed to raise his complaint before the domestic courts. Furthermore, it noted that the matter had already been examined by the Supreme Court in the first set of proceedings. 16. The second applicant, Mr H. G. is an Austrian national born in 1960. 17. On 31 May 1989 the Leoben Regional Court convicted the second applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to eight months’ imprisonment. The conviction was entered in the criminal record. 18. On 25 September 2005 the second applicant applied to have the conviction under Article 209 deleted from his criminal record, on the grounds that that provision had been repealed in the meantime. On 24 February 2006 the Federal Ministry of the Interior dismissed the application. 19. On 3 April 2006 the second applicant lodged a complaint against that decision with the Administrative Court and the Constitutional Court, and applied for legal aid. 20. On 11 October 2006 the Constitutional Court declined to deal with the complaint for lack of any prospect of success. In its reasoning it referred to its judgment of 4 October 2006 (see paragraph 12 above). 21. On 21 March 2007 the Administrative Court dismissed the applicant’s complaint, finding that the mere repeal of a criminal provision by the Constitutional Court or the legislator, without any specific order of a competent court, as in the instant case, could not give rise, under the Criminal Record Act, to the administrative authorities deleting a conviction that had been lawfully entered in a person’s criminal record. The authorities were only entitled to check whether a mistake had occurred when the conviction had initially been recorded. 22. On an unspecified date the applicant lodged a request for a renewal of the criminal proceedings to the Supreme Court order to seek the quashing of the conviction, with a view to its subsequent deletion from his criminal record. 23. On 1 August 2007 the Supreme Court rejected the application. As the highest instance for criminal proceedings, it found that it had in principle the competence to take the necessary decisions in fulfillment of its obligations arising from the Federal Constitution and the European Convention on Human Rights. However, in order to safeguard the principle of legal certainty, it had to apply the same admissibility criteria as the European Court of Human Rights under the Convention. This meant that, applying Article 35 § 1 of the Convention per analogiam, a request for a renewal of the criminal proceedings had to be submitted within a period of six months after the conviction had become final and that the applicant had to have exhausted domestic remedies. It rejected the applicant’s request since it had been introduced outside of the six-month period. 24. On 24 March 1994 the Leoben Regional Court convicted the second applicant again of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to one year’s imprisonment. 25. On 20 September 1994 the Supreme Court rejected a plea of nullity lodged by the second applicant and on 4 November 1994 the Graz Court of Appeal dismissed an appeal lodged by him. The conviction was entered in the criminal record. 26. On 25 September 2005 the second applicant applied to have the conviction under Article 209 deleted from his criminal record. On 24 February 2006 the Federal Ministry of the Interior dismissed the application. 27. On 3 April 2006 the second applicant lodged a complaint against that decision with the Administrative Court and the Constitutional Court, and applied for legal aid. 28. The Constitutional Court declined to deal with the complaint on 11 October 2006 because, in accordance with its case-law, it lacked any prospect of success. 29. On 21 March 2007 the Administrative Court dismissed the second applicant’s complaint. 30. On an unspecified date the applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction, with a view to its subsequent deletion from his criminal record. 31. On 23 October 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph 23 above). 32. The third applicant, Mr A. S., is an Austrian national born in 1949. 33. On 25 May 1999 the Graz Regional Court convicted the applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code. It sentenced him to one year’s imprisonment and ordered his detention in a secure psychiatric institution, pursuant to Article 21 § 2 of the Criminal Code. The applicant did not appeal against that decision. The conviction was entered in his criminal record. 34. On 25 September 2005 the third applicant applied to have the conviction deleted from his criminal record. On 22 February 2006 the Federal Ministry of the Interior dismissed his application. 35. On 3 April 2006 the third applicant lodged a complaint with the Administrative Court and the Constitutional Court against the Federal Minister’s decision. 36. On 11 October 2006 the Constitutional Court declined to deal with the case because, in accordance with its case-law, it lacked any prospect of success. 37. On 21 March 2007 the Administrative Court dismissed the complaint. 38. On an unspecified date the third applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction with a view to its subsequent deletion from his criminal record. 39. On 13 November 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph 23 above). 40. The fourth applicant, Mr A. V., is an Austrian national born in 1968. 41. On 29 August 1997 the Vienna Regional Court convicted the fourth applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to six months’ imprisonment. As the fourth applicant did not appeal against that decision, it became final. The conviction was entered in his criminal record. 42. On 25 September 2005 the fourth applicant applied to have the conviction deleted from his criminal record, because Article 209 had been repealed in the meantime. On 24 February 2006 the Federal Ministry of the Interior dismissed his application. 43. On 3 April 2006 the fourth applicant lodged a complaint against the Federal Minister’s decision with the Administrative Court and the Constitutional Court. 44. On 4 October 2006 the Constitutional Court dismissed the complaint. It found that the administrative authorities were only entitled to execute the orders of the criminal courts concerning the recording of convictions, but that they had no competence to review on their own initiative whether the respective order was lawful on its merits. Since a review of the lawfulness of an ordinary court’s decision by an administrative authority would be in contradiction to the separation of powers under constitutional law, the Federal Ministry of the Interior’s decision had not breached the law. 45. On 21 March 2007 the Administrative Court dismissed the fourth applicant’s complaint. 46. On 30 November 2006 the fourth applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction with a view to its subsequent deletion from his criminal record. 47. On 6 September 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph 23 above). 48. Article 209 of the Criminal Code, in force until 14 August 2002, deals with consensual homosexual acts and reads as follows: “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 of between six months and five years.” 49. In a judgment of 21 June 2002, following a request for a constitutional review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional. 50. The Constitutional Court held that Article 209 concerned only consensual homosexual relations between men aged over 19 and adolescents between the ages of 14 and 18. In the 14-to-19 age bracket, homosexual acts between persons of the same age (for instance two 16year-olds) or persons with an age difference of between one and five years, were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209. They became legal again when the younger partner reached the age of 18. Given that Article 209 applied not only to occasional relations but also to ongoing relationships, it led to rather absurd results – namely, a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again – and could therefore not be considered to be objectively justified. 51. On 10 July 2002, following the Constitutional Court’s judgment, the Austrian Parliament decided to repeal Article 209. It also introduced Article 207b, which penalises sexual relations with persons under 16 years of age under specific conditions and which is formulated in a gender neutral way. This provision prohibits sexual acts with a person under 16 years of age if, for certain reasons, that person is not mature enough to understand the meaning of the act and the offender takes advantage of that immaturity, or if the person under 16 is in a predicament and the offender takes advantage of that situation. Article 207b also penalises the inducing of persons under 18 years of age to engage in sexual activities in return for payment. Article 207b applies irrespective of whether the sexual acts at issue are heterosexual, homosexual or lesbian. The above amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, entered into force on 14 August 2002. 52. Under its transitional provisions, the amendment did not apply to criminal proceedings in which a first-instance judgment had already been given. It did exceptionally apply, subject to the principle of the application of a more favourable law, where a judgment had been set aside, inter alia, following the reopening of proceedings or in the context of a renewal of the proceedings following the finding of a violation of the Convention by the European Court of Human Rights. Apart from those situations, convictions under Article 209 remained unaffected by the amendment. 53. Under the heading “Renewal” (Erneuerung des Strafverfahrens), the Code of Criminal Procedure (Strafprozeßordnung) provides as follows: “1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [Bundesgesetzblatt] no. 210/1958) or of one of its Protocols on account of a decision [Entscheidung] or order [Verfügung] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned. 2. All applications for a retrial shall be decided by the Supreme Court. ...” “1. On an application for a retrial, the Supreme Court shall deliberate in private only where the Attorney-General or the judge rapporteur proposes that a decision be taken on one of the grounds set out in paragraphs 2 and 3. 2. Where the Supreme Court deliberates in private, it may refuse an application. ... if it unanimously considers the application to be manifestly ill-founded. ...” 54. Under the Criminal Record Act (Strafregistergesetz), every criminal conviction and sentence pronounced by a court for criminal matters (excluding those dealt with by administrative authorities) is to be registered in the criminal record (Strafregister), and is to remain visible there until its deletion. The criminal record is a central register which is kept by an administrative authority and which is accessible to law-enforcement authorities (Strafregisterauskunft). Furthermore, anybody is entitled to obtain a copy of his or her own criminal record, which may be presented to employers in order to prove his or her moral integrity (Strafregisterbescheinigung). The following provisions are relevant to the present case: “(1) The following must be entered in the criminal record: 1. all final convictions by the domestic criminal courts ..., 2. all final convictions of Austrian nationals and persons who have their residence or usual place of abode in Austria, by foreign criminal courts ..., ... 4. all decisions of the Federal President in connection with a conviction mentioned under subparagraphs 1 to 3, and decisions of the domestic courts regarding ... (c) the pardoning of the convicted person, the mitigation, conversion or new fixing of a penalty ... (k) the setting aside or alteration of a conviction or later decision; ... (m) the extinction of a conviction; ... (3) Any ruling imposing a penalty or preventive measure against a person or guilty verdict because of an act triable under Austrian law by the courts pursuant to the 1960 Code of Criminal Procedure in proceedings that are in compliance with the principles of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette no. 210/1958, shall be deemed a conviction within the meaning of this federal law.” “(1) Convictions by domestic criminal courts shall, once they take effect, be notified by the courts determining the case at first instance to the Vienna Federal Police Directorate through the transmission of criminal record cards. ...” “(1) Decisions of the Federal President relating to one of the convictions mentioned in subparagraphs 1 to 3 of section 2(1) and final decisions by domestic criminal courts shall be notified to the Vienna Federal Police Directorate by the court, which shall inform the convicted person thereof. The notification shall state the conviction to which the President’s or court’s decision refers. Detailed regulations regarding the external form of these notifications shall be adopted by the Federal Ministries in charge of the implementation of this federal act by mutual agreement through official instructions. (2) The date on which all prison sentences, fines (penalties in lieu of forfeiture or confiscation) and preventive measures accompanying deprivation of liberty imposed in a conviction have been completed, are deemed to have been completed, have been remitted or no longer need to be executed (section 2(1)(5)) shall be notified to the Vienna Federal Police Directorate by the court determining the case at first instance. If, in the case of a conviction under section 6(4) of the Criminal Records (Deletion) Act 1972, Federal Law Gazette no. 68, in respect of an unconditionally remitted prison sentence or in respect of a completely or only partly conditionally remitted prison sentence where remission has been revoked, the date of release from prison precedes the date stated in the first sentence, this release shall also be notified. (3) Convictions and decisions, orders and notifications by foreign organs relating to convictions shall be notified to the Vienna Federal Police Directorate by all domestic authorities and offices obtaining knowledge thereof, unless they are aware that the Vienna Federal Police Directorate has already received a corresponding notification. ...” “(1) If a domestic criminal court becomes aware that there has been a change in the personal situation of a convicted person (section 3(2)(2)) or that the information contained in the criminal record about a convicted person or a conviction is incorrect or that a person has convictions that are not included in the criminal record, it shall notify the Vienna Federal Police Directorate accordingly. ...” “(1) Any person in connection with whom a conviction, a decision by the Federal President or any other decision, order or notification relating thereto has or has not been entered in the criminal record may request a declaration that the entry in the criminal record is incorrect or inadmissible and therefore must be replaced or deleted, that the entry should have been made or that the conviction has been extinguished. (2) A request under subsection (1) shall be filed with the Federal Ministry of the Interior, which shall determine it. (3) If a request under subsection (1) is completely or partly allowed, the criminal record shall be corrected.” “(1) Except where provided for in other federal laws and international agreements, the Vienna Federal Police Directorate shall, on request, provide free of charge information about entries in the criminal record: 1. to all domestic authorities, offices of the federal police and – in respect of members of the armed forces – also to the military authorities; 2. to all foreign authorities in so far as a reciprocal agreement exists.” “(1) Mayors, in places where there are federal police directorates, these directorates, as well as Austrian missions abroad, shall, on request, issue certificates on the basis of documentation collected by the Vienna Federal Police Directorate about the applicant’s convictions appearing in the criminal record or stating that the criminal record does not contain any such convictions (criminal record certificates). ...” “After a period of two years has elapsed following the extinction of a conviction, any data concerning the conviction and the convicted person shall be deleted from the criminal record.” 55. Under section 4 of the Criminal Record (Deletion) Act 1972 (Tilgungsgesetz) the period during which a simple conviction remains on the criminal record before its deletion is calculated by adding together all the recorded convictions. This period may last from three years for a conviction of minor importance, and if no further convictions are entered during this period, up to fifteen years for a conviction for which a sentence of more than three years’ imprisonment was imposed. Thus the duration of the criminal record depends on the sentence and may be prolonged by subsequent convictions. A sentence of life imprisonment is never deleted from the record.