E.B. and others v. Austria
European Court of Human Rights
Application Nos. 31913/07, 38357/07, 48098/07, 48777/07 and 48779/07
7 November 2013
European Convention on Human Rights, Article 8: right to private and family life
European Convention on Human Rights, Article 13: right to an effective remedy
European Convention on Human Rights, Article 14: non-discrimination
Austrian Penal Code, Article 209 (repealed in 2002)
The five applicants were convicted under Article 209 of the Austrian Penal Code between 1982 and 1999. The provision criminalised consensual sexual activity between men where one party was an adult aged 19 and over and the other party was between 14 and 18 years of age. Under the laws of Austria, each applicant’s conviction was noted on their criminal record (which is accessible by law-enforcement authorities and may be presented to employers as proof of moral integrity).
Article 209 was in force until 14 August 2002, when it was deemed unconstitutional by the Austrian Constitutional Court on the grounds that it was arbitrary and could not be considered to be objectively justified. Each of the five applicants subsequently applied to the Austrian Federal Ministry of the Interior (“AFMI”) to have their Article 209 convictions struck from their criminal records. However, all applications were denied by AFMI. The Austrian Administrative Court upheld AFMI’s decisions on the basis that the administrative authorities were not entitled to delete convictions that had been lawfully entered into a criminal record even where the relevant law had been subsequently abolished.
In addition, following the repeal of Article 209, some of the applicants sought to have their criminal proceedings renewed before the Austrian Supreme Court under Article 363a of the Austrian Code of Criminal Proceedings. However, these applications were rejected by this court on the basis that such renewals of criminal proceedings could only be brought within six months of the original convictions and this period had expired.
The applicants complained to the European Court of Human Rights on the basis that the Austrian Government’s refusal to delete the convictions from their criminal records, in spite of Article 209 being deemed unconstitutional, amounted to a violation of their right to respect for private life under Article 8 and right to non-discrimination under Article 14 and that they had right no effective remedy at their disposal in respect of those refusals in violation of Article 13 of the European Convention on Human Rights (ECHR). The Austrian Government’s counterargument was that two remedies were available to each applicant: (i) the appeal to AFMI and (ii) a renewal of criminal proceedings under Article 363a.
Issue and resolution:
Discrimination and effective remedy. Whether the refusal to delete the applicants’ convictions from their criminal records where the provision under which they were convicted has been repealed amounted to a violation of their rights under the ECHR.
The Court acknowledged that a legal provision losing its force of law is not in it of itself a sufficient reason for removing a conviction from a person’s criminal record. However, given the fact that Article 209 was eliminated because it was unconstitutional, the Court felt that Austrian legislators were required to justify why the law on maintaining criminal record entries in relation to convictions under Article 209 was not also amended when that provision was repealed. In the absence of any such justification by the Austrian Government, the ECHR ruled that there had been a violation of Article 14 taken in conjunction with Article 8.
The Court also found both of the proposed remedies inadequate (i) on the grounds that AFMI did not have the power to deem court orders lawful or unlawful, and therefore could only remove criminal record entries which were from the outset unlawful (whereas the Article 209 convictions were not unlawful at the time of entry), and (ii) on the grounds that applications under Article 363a (A) must be started within 6 months of the original final judgment, and (B) was not available as a remedy in relation to Article 209 convictions within 6 months of any of the relevant applicants’ original final judgments. Therefore, it was concluded that the applicants’ Article 13 right to an effective remedy had also been violated.
Link to Full Judgment:
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