4 September 2009
FIRST SECTION
Application no. 48098/07
by H.G.
against Austria
lodged on 18 October 2007
STATEMENT OF FACTS
THE FACTS
The applicant, Mr G. H., is an Austrian national who was born in 1960 and lives in Austria. He is represented before the Court by Mr H. Graupner, a lawyer practising in Vienna.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 March 1994 the Leoben Regional Court convicted the applicant of having committed homosexual acts with consenting adolescents within the age bracket of 14 and 18, an offence under Article 209 of the Criminal Code, and sentenced him to twelve months imprisonment.
On 20 September 1994 the Supreme Court rejected the applicant’s plea of nullity and on 4 November 1994 the Graz Court of Appeal dismissed his appeal. The conviction was registered in the criminal record.
On 25 September 2005 the applicant lodged a request to delete the conviction of Article 209 from the criminal record because Article 209 had been repealed in the meantime. On 24 February 2006 the Federal Ministry of the Interior dismissed the request.
On 3 April 2006 the applicant filed a complaint against this decision with the Administrative Court and the Constitutional Court and asked for legal aid.
On 11 October 2006 the Constitutional Court declined to deal with the complaint because, according to its case-law, it lacked any prospect of success.
On 21 March 2007 the Administrative Court dismissed the applicant’s complaint. It noted that in a similar case it had found, that the mere quashing of a criminal provision by the Constitutional Court or the legislation, without any specific order of a competent court in the instant case, could give rise under the Criminal Record Act for the administrative authorities to delete a conviction registered lawfully from a person’s criminal record. The authorities were only entitled to verify whether a mistake had occurred when the conviction was initially registered.
At an unspecified date the applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to obtain the quashing of the conviction which could then lead to the deletion of the conviction from the criminal record.
On 23 October 2007 the Supreme Court rejected the request, finding that, as the highest instance for criminal proceedings, it had in principle the competence to take the necessary decisions in order to fulfil obligations arising from the Federal Constitution and the Convention of Human Rights. However, in order to safeguard the principle legal certainty, it had to apply the same admissibility criteria as at the European Court of Human Rights under the Convention. This means that, applying Article 35 § 1 of the Convention per analogiam, a request for a renewal of the criminal proceedings must be lodged within a period of 6 months after the conviction has become final and that the applicant must have exhausted domestic remedies. It rejected the applicant’s request since it was introduced outside of the six-months period. Furthermore, it noted that the matter had already been examined by the Supreme Court before.
B. Relevant domestic law and background
For a description of the relevant domestic law see application no. 38357/07.
COMPLAINTS
The applicant complains under Article 8 read in conjunction with Article 14 of the Convention that the registration of his conviction under Article 209 of the Criminal Code remained registered in his criminal record even though the European Court of Human Rights had found this provision to be discriminatory and the Austrian Constitutional Court had it annulled.
In particular he submits that the ongoing registration attaches social stigma to him because it is accessible to law enforcement authorities and it also appears in his certificate of good character. Furthermore the keeping of registration extends the duration of the deletion of other convictions. Moreover criminal courts may take such convictions as an aggravating circumstance in the course of subsequent criminal proceedings. Furthermore, the applicant complains under Article 13 of the Convention that he had no effective remedy at his disposal against the above described breach of Article 14 read in conjunction with Article 8.
QUESTIONS TO THE PARTIES
1. Did the applicant suffer discrimination on the ground of his sex or other status, contrary to Article 8 of the Convention read in conjunction with Article 14 because of the Austrian courts′ and authorities′ refusal to delete his conviction under Section 209 of the Criminal Code? (Reference is made to the Court’s judgements in the case of L. and V. v. Austria, nos. 39392/98 and 39829/98, ECHR 2003‑I, Landner. v. Austria, no. 18297/03, 3 February 2005, H.G. and G.B. v. Austria, nos. 11084/02 and 15306/02, 2 June 2005)
2. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints under Articles 8 and 14 as required by Article 13 of the Convention?
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