CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 novembre 2013

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text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .sF4F12EF6 { width:180.75pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIRST SECTION           CASE OF E.B. AND OTHERS v. AUSTRIA   (Applications nos. 31913/07, 38357/07, 48098/07, 48777/07 and 48779/07)           JUDGMENT   This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 14 June 2018     STRASBOURG   7 November 2013       FINAL   07/02/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of E.B. and Others v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 15 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in five applications (nos. 31913/07, 38357/07, 48098/07, 48777/07 and 48779/07) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Austrian nationals, Mr E.B. (“the first applicant”), Mr H.G. (“the second applicant”), Mr A.S. (“the third applicant”) and Mr A.V. (“the fourth applicant”), on 26 October 2006, 17 August 2007 and 18 October 2007. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court). 2.     All the applicants were represented by Mr H. Graupner, a lawyer practising in Vienna. 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. 3.     The applicants alleged that the Austrian authorities had refused to delete the criminal convictions from their criminal records, even though the offence in question had been abolished. 4.     On 31 August 2009 the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Application no. 31913/07 5.     The first applicant, Mr E. B., is an Austrian national born in 1947. 1.     The first applicant’s convictions under Article 209 of the Criminal Code 6.     On 23 September 1982 the Innsbruck Regional Court convicted the applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to ten months’ imprisonment. On 10 August 1983 the Innsbruck Court of Appeal reduced the sentence to seven months’ imprisonment. 7.     On 18 November 1999 the Vienna Regional Court convicted the applicant of other offences under the same provision 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. 8.     On 6 April 2001 the Vienna Regional Court convicted the applicant under Article 209 of the Criminal Code and sentenced him to one year’s imprisonment. The applicant did not appeal. 9.     All those convictions were entered in the applicant’s criminal record. 2.     Proceedings in respect of deletion of the conviction from the first applicant’s criminal record 10.     On 8 May 2006 the first applicant applied to have each conviction under Article 209 of the Criminal Code deleted from his criminal record on the grounds that Article 209 of the Criminal Code had been repealed by the Constitutional Court in the meantime. On 20 October 2006 the Federal Minister of the Interior dismissed his application. 11.     On 29 November 2006 the applicant applied for legal aid in order to lodge a complaint against the Federal Minister’s decisions with the Administrative Court and the Constitutional Court. 12.     On 18 December 2006 the Constitutional Court dismissed the request for legal aid, holding that the applicant’s complaint had no prospect of success. It noted that in a previous judgment of 4 October 2006 it had found that the administrative authorities were only entitled to execute the orders of the criminal courts concerning registration, but that they had no competence to review on their own initiative the lawfulness of the respective order on its merits. Since a review of the lawfulness of an ordinary court’s decision by an administrative authority would be in contradiction to the separation of powers under constitutional law, the Federal Ministry of the Interior’s decision had not breached the law. 13.     On 12 December 2006 the Administrative Court, referring to the Constitutional Court’s case-law, according to which the authorities were only entitled to check whether a mistake had occurred when a conviction was registered, but not to decide on the lawfulness of an entry on their own initiative, dismissed the applicant’s request for legal aid on the grounds that his complaint lacked any prospect of success. 14.     On an unspecified date the first applicant lodged a request for a renewal of each set of criminal proceedings which had led to his convictions under Article 209 of the Criminal Code with the Supreme Court in order to seek the quashing of the convictions, with a view to their subsequent deletion from his criminal record. 15.     By decisions of 27 September 2007, 23 October 2007 and 15   November 2007 respectively, the Supreme Court rejected the application. As the highest instance for criminal proceedings, it found that it had, in principle, the competence to take the necessary decisions in fulfillment of its obligations arising from the Federal Constitution and the European Convention on Human Rights. However, in order to safeguard the principle of legal certainty, it had to apply the same admissibility criteria as the European Court of Human Rights under the Convention. This meant that applying Article 35 § 1 of the Convention per analogiam , a request for a renewal of the criminal proceedings had to be submitted within a period of six months after the conviction had become final and that the applicant had to have exhausted domestic remedies. It rejected the applicant’s request because it had been introduced outside of the six-month period and, as regards the first set of proceedings, on the additional ground that the applicant had failed to raise his complaint before the domestic courts. Furthermore, it noted that the matter had already been examined by the Supreme Court in the first set of proceedings. B.     Application no. 38357/07 16.     The second applicant, Mr H. G. is an Austrian national born in 1960. 1.     The second applicant’s conviction under Article 209 of the Criminal Code 17.     On 31 May 1989 the Leoben Regional Court convicted the second applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to eight months’ imprisonment. The conviction was entered in the criminal record. 2.     Proceedings in respect of the deletion of the conviction from the second applicant’s criminal record 18.     On 25 September 2005 the second applicant applied to have the conviction under Article 209 deleted from his criminal record, on the grounds that that provision had been repealed in the meantime. On 24   February 2006 the Federal Ministry of the Interior dismissed the application. 19.     On 3 April 2006 the second applicant lodged a complaint against that decision with the Administrative Court and the Constitutional Court, and applied for legal aid. 20.     On 11 October 2006 the Constitutional Court declined to deal with the complaint for lack of any prospect of success. In its reasoning it referred to its judgment of 4 October 2006 (see paragraph 12 above). 21.     On 21 March 2007 the Administrative Court dismissed the applicant’s complaint, finding that the mere repeal of a criminal provision by the Constitutional Court or the legislator, without any specific order of a competent court, as in the instant case, could not give rise, under the Criminal Record Act, to the administrative authorities deleting a conviction that had been lawfully entered in a person’s criminal record. The authorities were only entitled to check whether a mistake had occurred when the conviction had initially been recorded. 22.     On an unspecified date the applicant lodged a request for a renewal of the criminal proceedings to the Supreme Court order to seek the quashing of the conviction, with a view to its subsequent deletion from his criminal record. 23.     On 1 August 2007 the Supreme Court rejected the application. As the highest instance for criminal proceedings, it found that it had in principle the competence to take the necessary decisions in fulfillment of its obligations arising from the Federal Constitution and the European Convention on Human Rights. However, in order to safeguard the principle of legal certainty, it had to apply the same admissibility criteria as the European Court of Human Rights under the Convention. This meant that, applying Article 35 § 1 of the Convention per analogiam , a request for a renewal of the criminal proceedings had to be submitted within a period of six months after the conviction had become final and that the applicant had to have exhausted domestic remedies. It rejected the applicant’s request since it had been introduced outside of the six-month period. C.     Application no. 48098/07 1.     The second applicant’s further conviction under Article 209 of the Criminal Code 24.     On 24 March 1994 the Leoben Regional Court convicted the second applicant again of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article   209 of the Criminal Code, and sentenced him to one year’s imprisonment. 25.     On 20 September 1994 the Supreme Court rejected a plea of nullity lodged by the second applicant and on 4 November 1994 the Graz Court of Appeal dismissed an appeal lodged by him. The conviction was entered in the criminal record. 2.     Proceedings in respect of the deletion of the conviction from the second applicant’s criminal record 26.     On 25 September 2005 the second applicant applied to have the conviction under Article 209 deleted from his criminal record. On 24   February 2006 the Federal Ministry of the Interior dismissed the application. 27.     On 3 April 2006 the second applicant lodged a complaint against that decision with the Administrative Court and the Constitutional Court, and applied for legal aid. 28.     The Constitutional Court declined to deal with the complaint on 11   October 2006 because, in accordance with its case-law, it lacked any prospect of success. 29.     On 21 March 2007 the Administrative Court dismissed the second applicant’s complaint. 30.     On an unspecified date the applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction, with a view to its subsequent deletion from his criminal record. 31.     On 23 October 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph   23 above). D.     Application no. 48777/07 32.     The third applicant, Mr A. S., is an Austrian national born in 1949. 1.     The third applicant’s conviction under Article 209 of the Criminal Code 33.     On 25 May 1999 the Graz Regional Court convicted the applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code. It sentenced him to one year’s imprisonment and ordered his detention in a secure psychiatric institution, pursuant to Article   21 § 2 of the Criminal Code. The applicant did not appeal against that decision. The conviction was entered in his criminal record. 2.     Proceedings in respect of the deletion of the conviction from the third applicant’s criminal record 34.     On 25 September 2005 the third applicant applied to have the conviction deleted from his criminal record. On 22 February 2006 the Federal Ministry of the Interior dismissed his application. 35.     On 3 April 2006 the third applicant lodged a complaint with the Administrative Court and the Constitutional Court against the Federal Minister’s decision. 36.     On 11 October 2006 the Constitutional Court declined to deal with the case because, in accordance with its case-law, it lacked any prospect of success. 37.     On 21 March 2007 the Administrative Court dismissed the complaint. 38.     On an unspecified date the third applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction with a view to its subsequent deletion from his criminal record. 39.     On 13 November 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph   23 above). E.     Application no. 48779/07 40.     The fourth applicant, Mr A. V., is an Austrian national born in 1968. 1.     The fourth applicant’s conviction under Article 209 of the Criminal Code 41.     On 29 August 1997 the Vienna Regional Court convicted the fourth applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to six months’ imprisonment. As the fourth applicant did not appeal against that decision, it became final. The conviction was entered in his criminal record. 2.     Proceedings in respect of the deletion of the conviction from the applicant’s criminal record 42.     On 25 September 2005 the fourth applicant applied to have the conviction deleted from his criminal record, because Article 209 had been repealed in the meantime. On 24 February 2006 the Federal Ministry of the Interior dismissed his application. 43.     On 3 April 2006 the fourth applicant lodged a complaint against the Federal Minister’s decision with the Administrative Court and the Constitutional Court. 44.     On 4 October 2006 the Constitutional Court dismissed the complaint. It found that the administrative authorities were only entitled to execute the orders of the criminal courts concerning the recording of convictions, but that they had no competence to review on their own initiative whether the respective order was lawful on its merits. Since a review of the lawfulness of an ordinary court’s decision by an administrative authority would be in contradiction to the separation of powers under constitutional law, the Federal Ministry of the Interior’s decision had not breached the law. 45.     On 21 March 2007 the Administrative Court dismissed the fourth applicant’s complaint. 46.     On 30 November 2006 the fourth applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction with a view to its subsequent deletion from his criminal record. 47.     On 6 September 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph   23 above). II.     RELEVANT DOMESTIC LAW AND BACKGROUND A.     The Criminal Code 48.     Article 209 of the Criminal Code, in force until 14 August 2002, deals with consensual homosexual acts and reads 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.” B.     The Constitutional Court’s case-law 49.     In a judgment of 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. 50.     The Constitutional Court held that Article 209 concerned only consensual homosexual relations between men aged over 19 and adolescents between the ages of 14 and 18. In the 14-to-19 age bracket, homosexual acts between persons of the same age (for instance two 16 ‑ year-olds) or persons with an age difference of between one and five years, were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209. They became legal again when the younger partner reached the age of 18. Given that Article   209 applied not only to occasional relations but also to ongoing relationships, it led to rather absurd results – namely, a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again – and could therefore not be considered to be objectively justified. C.     Amendment of the Criminal Code by the Austrian legislator 51.     On 10 July 2002, following the Constitutional Court’s judgment, the Austrian Parliament decided to repeal Article 209. It also introduced Article   207b, which penalises sexual relations with persons under 16 years of age under specific conditions and which is formulated in a gender neutral way. This provision prohibits sexual acts with a person under 16 years of age if, for certain reasons, that person is not mature enough to understand the meaning of the act and the offender takes advantage of that immaturity, or if the person under 16 is in a predicament and the offender takes advantage of that situation. Article 207b also penalises the inducing of persons under 18   years of age to engage in sexual activities in return for payment. Article   207b applies irrespective of whether the sexual acts at issue are heterosexual, homosexual or lesbian. The above amendment, published in the Official Gazette ( Bundesgesetzblatt ) no. 134/2002, entered into force on 14   August 2002. 52.     Under its transitional provisions, the amendment did not apply to criminal proceedings in which a first-instance judgment had already been given. It did exceptionally apply, subject to the principle of the application of a more favourable law, where a judgment had been set aside, inter alia , following the reopening of proceedings or in the context of a renewal of the proceedings following the finding of a violation of the Convention by the European Court of Human Rights. Apart from those situations, convictions under Article 209 remained unaffected by the amendment. D.     Retrial under Article 363a and 363b of the Code of Criminal Proceedings 53.     Under the heading “Renewal” ( Erneuerung des Strafverfahrens ), the Code of Criminal Procedure ( Strafprozeßordnung ) provides as follows: Article 363a “1.     If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [ Bundesgesetzblatt ] no. 210/1958) or of one of its Protocols on account of a decision [ Entscheidung ] or order [ Verfügung ] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned. 2.     All applications for a retrial shall be decided by the Supreme Court. ...” Article 363b “1.     On an application for a retrial, the Supreme Court shall deliberate in private only where the Attorney-General or the judge rapporteur proposes that a decision be taken on one of the grounds set out in paragraphs 2 and 3. 2.     Where the Supreme Court deliberates in private, it may refuse an application. ... if it unanimously considers the application to be manifestly ill-founded. ...” E.     Criminal Record Act 54.     Under the Criminal Record Act ( Strafregistergesetz), every criminal conviction and sentence pronounced by a court for criminal matters (excluding those dealt with by administrative authorities) is to be registered in the criminal record ( Strafregister ), and is to remain visible there until its deletion. The criminal record is a central register which is kept by an administrative authority and which is accessible to law-enforcement authorities ( Strafregisterauskunft ). Furthermore, anybody is entitled to obtain a copy of his or her own criminal record, which may be presented to employers in order to prove his or her moral integrity ( Strafregister ­ bescheinigung ). The following provisions are relevant to the present case: Section 2 “(1) The following must be entered in the criminal record: 1.     all final convictions by the domestic criminal courts ..., 2.     all final convictions of Austrian nationals and persons who have their residence or usual place of abode in Austria, by foreign criminal courts ..., ... 4.     all decisions of the Federal President in connection with a conviction mentioned under subparagraphs   1 to 3, and decisions of the domestic courts regarding ... (c)     the pardoning of the convicted person, the mitigation, conversion or new fixing of a penalty ... (k)     the setting aside or alteration of a conviction or later decision; ... (m)     the extinction of a conviction; ... (3)     Any ruling imposing a penalty or preventive measure against a person or guilty verdict because of an act triable under Austrian law by the courts pursuant to the 1960 Code of Criminal Procedure in proceedings that are in compliance with the principles of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette no. 210/1958, shall be deemed a conviction within the meaning of this federal law.” Section 3 Criminal record cards “(1)     Convictions by domestic criminal courts shall, once they take effect, be notified by the courts determining the case at first instance to the Vienna Federal Police Directorate through the transmission of criminal record cards. ...” Section 4 Other notifications “(1)     Decisions of the Federal President relating to one of the convictions mentioned in subparagraphs 1 to 3 of section 2(1) and final decisions by domestic criminal courts shall be notified to the Vienna Federal Police Directorate by the court, which shall inform the convicted person thereof. The notification shall state the conviction to which the President’s or court’s decision refers. Detailed regulations regarding the external form of these notifications shall be adopted by the Federal Ministries in charge of the implementation of this federal act by mutual agreement through official instructions. (2)     The date on which all prison sentences, fines (penalties in lieu of forfeiture or confiscation) and preventive measures accompanying deprivation of liberty imposed in a conviction have been completed, are deemed to have been completed, have been remitted or no longer need to be executed (section 2(1)(5)) shall be notified to the Vienna Federal Police Directorate by the court determining the case at first instance. If, in the case of a conviction under section 6(4) of the Criminal Records (Deletion) Act   1972, Federal Law Gazette no. 68, in respect of an unconditionally remitted prison sentence or in respect of a completely or only partly conditionally remitted prison sentence where remission has been revoked, the date of release from prison precedes the date stated in the first sentence, this release shall also be notified. (3)     Convictions and decisions, orders and notifications by foreign organs relating to convictions shall be notified to the Vienna Federal Police Directorate by all domestic authorities and offices obtaining knowledge thereof, unless they are aware that the Vienna Federal Police Directorate has already received a corresponding notification. ...” Section 5 Correction of previous notifications “(1)     If a domestic criminal court becomes aware that there has been a change in the personal situation of a convicted person (section 3(2)(2)) or that the information contained in the criminal record about a convicted person or a conviction is incorrect or that a person has convictions that are not included in the criminal record, it shall notify the Vienna Federal Police Directorate accordingly. ...” Section 8 Legal protection against entries in the criminal record “(1)     Any person in connection with whom a conviction, a decision by the Federal President or any other decision, order or notification relating thereto has or has not been entered in the criminal record may request a declaration that the entry in the criminal record is incorrect or inadmissible and therefore must be replaced or deleted, that the entry should have been made or that the conviction has been extinguished. (2)     A request under subsection (1) shall be filed with the Federal Ministry of the Interior, which shall determine it. (3)     If a request under subsection (1) is completely or partly allowed, the criminal record shall be corrected.” Section 9 Information about entries in the criminal record “(1)     Except where provided for in other federal laws and international agreements, the Vienna Federal Police Directorate shall, on request, provide free of charge information about entries in the criminal record: 1.     to all domestic authorities, offices of the federal police and – in respect of members of the armed forces – also to the military authorities; 2.     to all foreign authorities in so far as a reciprocal agreement exists.” Section 10 Criminal record certificate “(1)     Mayors, in places where there are federal police directorates, these directorates, as well as Austrian missions abroad, shall, on request, issue certificates on the basis of documentation collected by the Vienna Federal Police Directorate about the applicant’s convictions appearing in the criminal record or stating that the criminal record does not contain any such convictions (criminal record certificates). ...” Section 12 Deletion of criminal record data “After a period of two years has elapsed following the extinction of a conviction, any data concerning the conviction and the convicted person shall be deleted from the criminal record.” F.     The Criminal Record (Deletion) Act 55.     Under section 4 of the Criminal Record (Deletion) Act   1972 (Tilgungs ­ gesetz ) the period during which a simple conviction remains on the criminal record before its deletion is calculated by adding together all the recorded convictions. This period may last from three years for a conviction of minor importance, and if no further convictions are entered during this period, up to fifteen years for a conviction for which a sentence of more than three years’ imprisonment was imposed. Thus the duration of the criminal record depends on the sentence and may be prolonged by subsequent convictions. A sentence of life imprisonment is never deleted from the record. THE LAW I.     JOINDER OF THE APPLICATIONS 56.     Given that these five applications concern similar facts and raise essentially identical issues under the Convention, the Court decides to consider them in a single judgment, cf. Rule 42 § 1 of the Rules of Court. II.     THE GOVERNMENT’S REQUEST TO STRIKE THE FIRST APPLICATION OFF THE LIST 57.     The Government informed the Court that the first applicant, Mr   E.   B., had died on 14 September 2008 and asked the Court to strike the application off the list. They submitted that his application, which essentially concerned complaints under Article 14 read in conjunction with Article   8 of the Convention, related to his private life and could not be transferred to an heir. 58.     On 26 April 2010 the applicant’s lawyer submitted that the heir of E.B., 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. 59.     The Court notes that at the time of lodging his applications the first applicant was still alive. The question is therefore whether his daughter could continue proceedings before the Court which had already been instituted by the direct victim of an alleged violation of the Convention. 60.     In this connection, the Court reiterates that in various cases where an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close members of his family who expressed the wish to pursue the proceedings before the Court (see Malhous   v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, with further references). The Court has taken a more restrictive approach only as concerns applications introduced by close relatives of victims of an alleged violation of the Convention themselves after the death of the direct victim or where the heir did not have a sufficient link to the direct victim (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000 ‑ XI; Fairfield   v. the United Kingdom (dec.), no. 24790/04, ECHR 2005 ‑ VI; and Léger   v. France (striking out) [GC], no. 19324/02, 30 March 2009). 61.     As regards the Government’s argument that the first applicant’s case concerned highly personal matters which did not allow for the examination to be continued on the request of a close relative, the Court reiterates that human rights cases before the Court generally also have a moral dimension, and persons close to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death. This holds true all the more if the leading issue raised by the case transcends the person and the interests of the applicant and his heirs and may affect others (see Karner v.   Austria , no. 40016/98, § 25, ECHR 2003-IX). 62.     The Court therefore considers that the conditions for striking the case off the list of pending cases, as defined in Article 37 § 1 of the Convention, have not been met and that it must accordingly continue to examine the application. III.     ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 8 63.     The applicants complained that their convictions under Article   209 of the Criminal Code remained on their criminal record even though the European Court of Human Rights had found that provision to be discriminatory and the Austrian Constitutional Court had it annulled. This amounted to discrimination on the grounds of their sexual orientation, in breach of Article 14 read in conjunction with Article 8 of the Convention. Article   14 of the Convention reads as follows: “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 of the Convention reads as follows: “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.” 64.     The Government contested that argument. A.     Admissibility 65.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 66.     The applicants stressed at the outset that their complaints did not concern their original convictions under Article 209 of the Criminal Code, but the social stigma which still attached to their convictions even today. The criminal record of their convictions was accessible to law-enforcement authorities and also appeared in their character references ( Leumunds ­ zeugnis ). They also argued that the maintaining of the entry extended the period for which other convictions had to remain on their criminal records. Moreover, criminal courts could take such convictions as an aggravating circumstance in subsequent criminal proceedings. 67.     The applicants 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 they had not challenged their 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 continuing the negative consequences of their convictions under article 209 of the Criminal Code. Since they had failed to do so, there had been a breach of Article 14 read in conjunction with Article 8 of the Convention. 68.     The Government argued that the applicants, in essence, were seeking redress in the present proceedings for an alleged violation of their rights which had taken place in the past, namely when they had been convicted of offences under Article 209 of the Criminal Code. However, they had failed to lodge applications with the Court in respect of those convictions and the Convention does not require member States to redress breaches of the Convention in respect of which no judgment has been given by the Court. 69.     The Government further submitted that there was no indication that the applicants’ right to respect for their 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, and subsequently deleted from the criminal record. Since the Convention did not provide for a general res judicata effect of judgments of the Court, the fact that the applicants’ convictions, which had not been the subject of proceedings before the Court, continued to appear on their criminal records could not be in breach of the Convention. 2.     The Court’s assessment 70.     The Court observes at the outset that the applicants did not complain about their convictions per se, but about the Austrian authorities’ refusal to delete those convictions from the criminal record. The applicants considered that that refusal was in breach of Article 14 of the Convention, read in conjunction with Article 8 thereof. 71.     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). 72.     The Court has also 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 Ünal Tekeli v. Turkey , no.   29865/96, § 49, ECHR 2004 ‑ X). However, this is not the only facet of the prohibition of discrimination under Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR   2000 ‑ IV). 73.     A difference in treatment is discriminatory within the meaning of Article   14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference in treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, for example, Burden   v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008; Petrovic , cited above, § 30, and Lithgow and Others v. the United Kingdom , 8   July 1986, § 177, Series A no. 102). 74.     The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Gaygusuz v. Austria , 16   September 1996, § 42, Reports 1996 ‑ IV). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see Rasmussen v. Denmark , 28 November 1984, § 40, Series   A no. 87, and Inze v. Austria , 28 October 1987, § 41, Series   A no.   126), but the final decision as to observance of the Convention’s requirements rests with the Court. Since the Convention is, first and foremost, a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Ünal Tekeli , cited above, § 54, and, mutatis mutandis , Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002 ‑ IV). 75.     As regards the applicability to the present case of Article 14 of the Convention read in conjunction with Article 8 thereof, the Court reiterates that the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article   8, and that the protection of personal data is 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 (see Gardel v.   France , no. 16428/05, §§   58 and 62, ECHR 2009). Having regard to the sensitive nature of information contained in a criminal record and the impact it may have on the individual concerned, given that it is available to public authorities and could also be disclosed in a person’s criminal record certificate, such information is closely linked to a person’s private life, even though it has been based on a judgment by a court that was delivered in public. 76.     The Court therefore concludes that Article 14 of the Convention read in conjunction with Article 8 thereof is applicable in the present case. The next question to be addressed is whether Article 14 of the Convention has been complied with. 77.     In this connection, the Court observes that between 1983 and 2001 all the applicants were convicted of one or more offences under Article   209 of the Criminal Code, which punished homosexual relations between adults and consenting male persons within the age bracket of 14 to 18. On 21   June 2002 following a request by the Innsbruck Regional Court for a constitutional review, the Constitutional Court ruled that Article 209 of the Criminal Code was unconstitutional as being arbitrary (see "Relevant Domestic Law and Background" above). Moreover, in a series of cases against Austria, the Court has found that Article 209 of the Criminal Code, which only punished sexual relations between male adults and male persons between the ages of 14 and 18 years, and not lesbian sexual relations, was discriminatory and in violation of Article   14 taken in conjunction with Article   8 of the Convention (see L. and V. v. Austria , nos. 39392/98 and 39829/98, ECHR 2003 ‑ I; Woditschka and Wilfling   v. Austria , nos.   69756/01 and 6306/02, 21 October 2004; 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; C Wolfmeyer v. Austria , no.   5263/03, 26   May 2005; and R.H.   v. Austria , no. 7336/03, 19 January 2006). Since the Constitutional Court’s decision of 21 June 2002, Article 209 of the Criminal Code has no longer been in force. On 10 July 2002, following the Constitutional Court’s judgment, Parliament replaced Article 209 by Article 207b, which contained a prohibition of sexual relations with persons under 16 years of age under specific conditions and was formulated in a gender-neutral way. 78.     The Court therefore will have to examine whether the failure to treat the applicants differently from other persons also convicted of a criminal offence, but where the offence in question had not been quashed by the Constitutional Court or otherwise abolished, pursued a legitimate aim and, if so, whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Inze , cited above, ibid.). 79.     The Court considers that it is within the normal course of events that provisi