EB And Others v Austria: ECHR 7 Nov 2013

ECHR Article 14
Refusal to amend criminal record despite Constitutional Court ruling that provision under which applicants had been convicted was unconstitutional: violation
Facts – Between 1983 and 2001 the applicants were convicted of offences under Article 209 of the Criminal Code, a provision that made homosexual relations between adults and consenting males aged between 14 and 18 illegal. Article 209 was subsequently abolished following a Constitutional Court ruling of 21 June 2002 that it led to arbitrary results and was not objectively justified. The provision was also found to be discriminatory by the European Court, as it applied only to homosexual relations between males, not females*. Following abolition of the offence the applicants applied to have their convictions deleted from their criminal records, but this was refused on the grounds that the Federal Ministry of the Interior had no power to delete a conviction that had been lawfully entered in the record.
Law – Article 14 in conjunction with Article 8: In view of its sensitive nature and the impact it could have on the person concerned, information contained in a criminal record was closely linked to private life, even though based on a court judgment delivered in public. Article 14 read in conjunction with Article 8 was therefore applicable.
It was within the normal course of events for provisions of the criminal law to be amended or repealed in order to adapt to changing circumstances within society. The mere fact that a criminal conviction that occurred in the past was based on a legal provision which had since lost force of law would normally have no bearing on whether the conviction should remain on a person’s criminal record, as it concerned essentially a fact from the past. Abolishing an offence or substantially modifying its essential elements did not mean that the provision, at the time it was in force and applied, did not meet all the requirements under constitutional law.
The situation was different, however, in the applicants’ case. Parliament had repealed and replaced Article 209 of the Criminal Code by a substantially different provision because the Constitutional Court had found that it was not objectively justified and was therefore unconstitutional. The European Court had found that convictions under that provision were discriminatory. The new provision of the Criminal Code had thus been introduced not as part of a general process of adapting the Criminal Code to the needs of a changing society, but to eliminate a provision that was in contradiction with the Constitution. That particular feature of the applicants’ case had required a different response by the legislature. Since keeping an Article 209 conviction on criminal records could have particularly serious consequences for the persons concerned, when amending it in order to bring it into conformity with modern standards of equality between men and women, the legislature should have provided for appropriate measures, such as introducing exceptions to the general rule of maintaining convictions on the record. The Government had not, however, provided any explanation for the failure to do so.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of the applicants’ right under Article 13 of the Convention to an effective remedy.
Article 41: EUR 5,000 to each applicant in respect of non-pecuniary damage.

31913/07 – Legal Summary, [2013] ECHR 1312
European Convention on Human Rights
Human Rights


Updated: 27 November 2021; Ref: scu.519052