I correctly predicted that there was a violation of human rights in H.G. v. AUSTRIA (NO. 3).
Information
- Judgment date: 2016-11-03
- Communication date: 2009-08-31
- Application number(s): 48098/07
- Country: AUT
- Relevant ECHR article(s): 8, 13, 14, 14+8
- Conclusion:
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.641646
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
4 September 2009 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lodged a request to delete the conviction of Article 209 from the criminal record because Article 209 had been repealed in the meantime.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.
Judgment
THIRD SECTIONCASE OF SARKISYAN v. RUSSIA
(Application no. 62614/13)
JUDGMENT
STRASBOURG
3 November 2016
This judgment is final but it may be subject to editorial revision. In the case of Sarkisyan v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Hasan Bakırcı Deputy Section Registrar,
Having deliberated in private on 13 October 2016,
Delivers the following judgment, which was adopted on that date:
FACTS AND PROCEDURE
1. The case originated in an application (no. 62614/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Gayk Levonovich Sarkisyan (“the applicant”), on 23 September 2013. 2. The applicant was represented by Mr A. Anokhin and Ms M. Gordeyeva, lawyers practising in Astrakhan. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. On 28 January 2016 the complaints concerning Article 5 § 3 and Article 5 § 4 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The relevant details of the application are set out in the appended table. 5. The Government submitted a declaration with a view to resolving the issues raised by the applicant. 6. In particular, the Government acknowledged that the applicant had remained in pre-trial detention for an excessively lengthy period in violation of Article 5 § 3 of the Convention. They offered to pay the applicant 1,200 euros and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s judgement. In the event of failure to pay this amount within the abovementioned three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The declaration did not mention the applicant’s complaint under Article 5 § 4 of the Convention. 7. The applicant informed the Court that he agreed to the terms of the declaration. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
8. The Court reiterates the applicant’s express agreement to the terms of the declaration made by the Government and will treat it as a friendly settlement between the parties pertaining to the part of the application under Article 5 § 3 of the Convention about the excessive length of the applicant’s pre-trial detention. 9. It therefore takes note of the friendly settlement reached between the parties as regards a part of the application. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and the Protocols thereto and finds no reasons to justify the continued examination of the part of the application in so far as it concerned Article 5 § 3 of the Convention. 10. Accordingly, it is appropriate to strike this part of the application out of the list. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
11. The applicant submitted an additional complaint about delays in the examination of his appeals against the detention orders. The complaint raises an issue under Article 5 § 4 of the Convention, in accordance with the relevant well-established case-law of the Court (see Idalov, cited above, § 154, with further references). The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of Article 5 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
13. Regard being had to the documents in its possession and to its case‐law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sum indicated in the appended table. 14. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention in so far as it concerns the complaint under Article 5 § 3 of the Convention about the excessive length of the applicant’s pre-trial detention;
2. Declares admissible the applicant’s complaint about the lack of speedy review of his detention;
3. Holds that there has been a breach of Article 5 § 4 of the Convention concerning the excessive length of judicial review of detention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 3 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıHelena JäderblomDeputy RegistrarPresident
APPENDIX
Application raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
No. Application no.Date of introduction
Applicant name
Date of birth
Representative name and location
Period of detention
Length of detention
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses
(in euros)[1]
62614/13
23/09/2013
Gayk Levonovich SARKISYAN
02/10/1983
Anokhin Aleksandr Anatolyevich
Astrakhan
Gordeeva Margarita Vladimirovna, Astrakhan
01/08/2012 to
25/07/2013
11 month(s) and 25 day(s)
Art. 5 (4) - excessive length of judicial review of detention
1) appeal against the detention order of 01/04/2013 was examined on 16/05/2013
2) appeal against the detention order of 22/02/2013 was examined on 16/05/2013
500
No. Application no.Date of introduction
Applicant name
Date of birth
Representative name and location
Period of detention
Length of detention
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses
(in euros)[1]
62614/13
23/09/2013
Gayk Levonovich SARKISYAN
02/10/1983
Anokhin Aleksandr Anatolyevich
Astrakhan
Gordeeva Margarita Vladimirovna, Astrakhan
01/08/2012 to
25/07/2013
11 month(s) and 25 day(s)
Art. 5 (4) - excessive length of judicial review of detention
1) appeal against the detention order of 01/04/2013 was examined on 16/05/2013
2) appeal against the detention order of 22/02/2013 was examined on 16/05/2013
500
[1] Plus any tax that may be chargeable to the applicants.