FIRST SECTION

DECISION

Application no . 27783/09 E.B . against Austria

The European Court of Human Rights ( First Section ), sitting on 24 June 2014 as a Chamber composed of:

Isabelle Berro-Lefèvre , President, Elisabeth Steiner , Khanlar Hajiyev , Mirjana Lazarova Trajkovska , Julia Laffranque , Paulo Pinto de Albuquerque , Linos-Alexandre Sicilianos , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 26 October 2006 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr E.B., wa s an Austrian national, born in 1947. The President granted the applicants ’ requests for hi s identity not to be disc losed to the public (Rule 47 § 4 ). He was repres ented 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.

I . THE CIRCUMSTANCES OF THE CASE

3. The facts of the case, as submitted by the parties, may be summarised as follows.

A . The applicant ’ s convictions under Article 207 and 207b of the Criminal Code

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 advant age 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).

B . The applicant ’ s request for early release

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 ( M inderj ä hrige ) had not succeeded in getting him to conform to standards of law-abiding behaviour ( norm ­ angepasstes 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, t he applicant served the full sentence. He died on 14 September 2008.

II . Relevant domestic law

11. Article 209 of the Criminal Code, in force until 14 August 2002, dealt with consensual homosexual acts and read 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.”

12. On 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.

13. On 10 July 2002, following the Constitutional Court ’ s judgment, the Austrian Parliament decided to repeal Article 209. It also introduced Article 207b, which contained a prohibition of sexual relations with persons less than 16 years of age under specific conditions and unlike Article 209, was formulated in a gender-neutral way. That amendment, published in the Official Gazette ( Bundesgesetzblatt ) no. 134/2002, entered into force on 14 August 2002.

14. A more detailed description of the law, the Constitutional Court ’ s judgments concerning Article 209 of the Criminal Code and its replacement by Article 207b of the Criminal Code can be found in the case of E.B. and Others v. Austria, nos. 31913/07, 38357/07/ 48098/07, 48777/07 and 48779/07, §§ 48-52, 7 November 2013.

15. Article 46 of the Criminal Code reads as follows:

Article 46: Conditional release of a prisoner

“(2) If an offender has served two thirds, and at least three months, of the term of imprisonment imposed on him by a judgment ... the remainder of the prison sentence shall be suspend ed on probation unless there are specific reasons to expect that this person would commit crimin al offences while at liberty.

(3) A decision about the conditional release of an offender must be based on the examination of his personality, his past life, whether it can be expected that he would lead a law-abiding life in the future, and his conduct while serving his prison sentence. Further, it must be taken into account whether there are specific reasons which make it necessary for the full term of imprisonment to be served in order to prevent others from committing similar offences. Where appropriate, the conditional release shall be granted in combination with other measures.”

COMPLAINTS

16. The applicant complained under Article 14 read in conjunction with Article 8 of the Convention that the Austrian Courts had, inter alia, used his convictions under Article 209 of the Criminal Code as a reason to refuse his conditional release from prison, even though the European Court of Human Rights had since found that provision to be discriminatory and the Austrian Constitutional Court had it annulled. This amounted to discrimination on the grounds of his sexual orientation.

17. He complained further under Article 5 § 1 of the Convention that the refusal of his request for early release from detention based on discriminatory grounds had also rendered his continued detention unlawful.

18. Lastly, the a pplicant complain ed that the Austrian courts ’ refusal to grant him early release from detention had also been in breach of A rticle 6 of the Convention .

THE LAW

I . The Government ’ s request to strike the application out of the list

19 . The Government informed the Court that the applicant had died on 14 September 2008 and asked the Court to strike the application out of the list. They submitted that his application, which essentially concerned complaints under Article 14 r ead in conjunction with Article 8 of the Convention, related to his private life and could not be transferred to an heir.

20 . On 26 April 2010 the appli cant ’ s lawyer submitted that Mr E.B. ’ s heir, his daughter S.B., had informed him that she wished to pursue the application before the Court, as the case also had a moral dimension and concerned important questions of general interest.

21 . The Court does not find it necessary to examine whether the conditions for striking the case out of the list of pending cases, as set out in Article 37 § 1 of the Convention, have been met since the application is in any event inadmissible for the reasons set out below.

II . Alleged violation of Article 14 of the Convention read in conjunction with Article 8

22. The applicant complain ed that the Austrian Courts had inter alia used his convictions under Article 209 of the Criminal Code as a reason to refuse his conditional release from prison, even though the European Court of Human Rights had since found that provision to be discriminatory and the Austrian Constitutional Court had it annulled. This amounted to discrimination on the grounds of his sexual orientation, in breach of Article 14 read in conjunction with Article 8 of the Convention, which read as follows:

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour , language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

23 . The Gov ernment submitted that the applicant, in essence, was seeking redress in the present proceedings for an alleged violation of his rights which had taken place in the past, namely when he had been convicted of offences under Article 209 of the Criminal Code. However, he had failed to lodge applications with the Court in respect of those convictions. The Convention, however, does not require member States to redress breaches of the Convention in respect of which no judgment has been given by the Court.

24 . They further argued that there was no indication that the applicant ’ s right to respect for his private life had been violated in a discriminating manner. In accordance with Article 46 of the Convention, convictions under Article 209 of the Criminal Code that were the subject of proceedings before the Court may be set aside in re-opened proceedings, pursuant to Article 363a of the Code of Criminal Procedure. Since the Convention did not provide for a general res judicata effect of judgments of the Court, the fact that these convictions, to which the Austrian courts still had regard in different proceedings and which had not been challenged before the Court, could not be in breach of the Convention. Moreover, there was no indication that the Austrian courts ’ main reason for refusing the applicant ’ s request for early release was his previous convictions under Article 209 of the Criminal Code. Both the Regional Court and the Court of Appeal not only referred to the specifically preventive grounds not allowing for early release from detention, but also to general preventive considerations based on the fact that the applicant already had six other convictions for sexual offences.

25. The applicant stressed at the outset that his complaint did not concern his original convictions under Article 209 of the Criminal Code, but the detrimental effects which remained attached to his convictions. Those convictions had been treated by the criminal courts as an aggravating circumstance in subsequent criminal proceedings and as grounds for refusing his request for early release. That being so, the fact that he had not challenged his convictions under Article 209 of the Criminal Code before the Court any earlier was irrelevant. In so far as the Government argued that his Article 209 convictions had not been the only grounds for refusing his release, this was mere speculation as one would think that it would be different if a person had six or nine previous convictions. Nevertheless, all his previous convictions and, in any event these convictions, had formed part of the Austrian courts ’ overall assessment of his situation.

26 . The applicant also submitted that the Convention prohibits States from attaching further negative effects to prior human-rights violations also where those violations have not been challenged , so the fact that he had not challenged his convictions before the Court was therefore irrelevant . Sexual autonomy and prohibition of discrimination on the grounds of sexual orientation were general principles of European law , and the Government were therefore under an obligation to provide sound reasons to justify the necessity of continu ing the negative consequences of the convictions under A rticle 209 of the Criminal Code. Since they had failed to do so, there had been a breach of Article 14 r ead in conjunction with Article 8 of the Convention.

27. The Court observes at the outset that the applicant did not complain about his convictions under Article 209 of the Criminal Code per se, but about the Austrian courts ’ refusal of his request for early release from prison following a subsequent conviction. He considers that this refusal was in breach of Article 14 read in conjunction with Article 8 thereof.

28. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997 ‑ I, and Petrovic v. Austria, 27 March 1998, § 22, Reports 1998 ‑ II).

29. In the case of E.B. and Others v. Austria (nos. 31913/07, 38357/07, 48098/07, 48777/07 and 48779/07, 7 November 2013), brought, inter alia, by the same applicant, and which concerned the refusal of the Austrian authorities to delete references to the applicants ’ convictions under Article 209 of the Criminal Code from their criminal records, the Court found that this complaint came within the scope of Article 8 of the Convention. It observed that the storage by a public authority of information relating to an individual ’ s private life was an issue under Article 8, and that the protection of personal data was of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. Having regard to the sensitive nature of information contained in a criminal record and the impact it could have on the individual concerned, such information was closely linked to a person ’ s private life.

30. Having regard to this the Court will not exclude, and considers for the purpose of this case, that a question of early release related to earlier convictions may fall within the ambit of Article 8 of the Convention. Thus, the Court must determine w h ether the decision not to release the applicant contained such elements as to run counter to Article 14 of the Convention.

31. The Court has held that not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see Ãœnal Tekeli v. Turkey, no. 29865/96, § 49, ECHR 2004 ‑ X).

32. In the present case the Court reiterates that the applicant was in 2004 sentenced to three years ’ imprisonment. As any other prisoner he had the possibility, after a certain period of time, to lodge a request for early release under Article 46 of the Criminal Code. In the examination of such a request, the national authorities had a wide discretion depending on a wide range of circumstances. In exercising this discretion, the domestic courts found that the applicant had shown no remorse, displayed an incorrigible personality, had numerous previous convictions for sexual offences and had not succeeded in conforming to standards of law-abiding behaviour . Accordingly, they concluded that the requirements for early release pursuant to Article 46 of the Criminal Code were not fulfilled.

33. Having regard to this the Court does not find that the domestic courts went beyond the discretion afforded to them under domestic law or that the decision reached was arbitrary. Whereas it is true that the courts in their assessment of the applicant ’ s personality and behavior did not expressly exclude any reference to his convictions under the former Article 209 of the Criminal Code, the Court does not find that this issue alone can lead to the conclusion that the refusal to grant the applicant early release, when seen as a whole, was discriminatory or amounted to a treatment different from what would have applied to any other prisoner who had made such a request. Accordingly, the Court finds that the present case does not disclose any appearance of a violation of Article 14 read in conjunction with Article 8 of the Convention.

34. It follows that this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

III . Alleged violation of Article 5 of the Convention

35 . The applicant complained that the refusal of his request for early release from detention allegedly based on discriminatory grounds, had also rendered his continued detention unlawful and amounted to a breach of Article 5 § 1 of the Convention , of which the relevant part reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;”

36. The Government submitted that the applicant had been lawfully detained following his conviction by the Vienna Regional Court on 1 December 2004. That had become final by a decision of the Supreme Court of 22 March 2005, and had not been challenged successfully before the Court. There were therefore sufficient grounds for his detention pursuant to Article 5 § 1 (a) of the Convention.

37. The applicant did not comment on this point.

38. The Court finds that the basis for examining the applicant ’ s complaint under Article 5 § 1 (a) of the Convention is not, as the applicant suggests, the Korneuburg Regional Court ’ s decision of 27 April 2006 refusing his request for early release, but his conviction by the Vienna Regional Court on 1 December 2004 and the Supreme Court ’ s decision of 22 March 2005. It must therefore be regarded as detention after “conviction by a competent court” within the meaning of Article 5 § 1 (a) of the Convention.

39. In this connection, the Court reiterates that it is not its place, within the context of Article 5, to review the appropriateness of the original sentence (see Weeks v. the United Kingdom , 2 March 1987, § 50, Series A no. 114 ).

40. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV . Alleged violation of Article 6 of the Convention

41 . Lastly, the a pplicant complain ed that the Austrian courts ’ refusal to grant him early release from detention had also been in breach of A rticle 6 of the Convention .

42. However, in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

43. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible .

Søren Nielsen Isabelle Berro-Lefèvre Registrar President