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Die Volksanwaltschaft ist eine unabhängige Kontrolleinrichtung. Ihre Aufgaben sind in der Bundesverfassung und dem Volksanwaltschaftsgesetz festgelegt.

Criminal records about foreign convictions

August 16, 2010

In January 2008 Mr. N.N. filed a petition to delete the entry of a foreign conviction in the Austrian criminal record. After an almost two-year proceeding, it was found that this entry was unlawful. During these almost two years it was disregarded that this entry could possibly result in damage to Mr. N.N.’s credit standing or have career drawbacks for him.

The entry or expungement of foreign convictions raises difficult practical and legal problems that are also based on statutory provisions that are not quite clear. On one hand, one must adhere to the presumption of innocence that is derived from Article 6 of the European Convention on Human Rights. On the other hand, one must take into consideration the needs of the Austrian authorities, respectively, the Austrian population. For example, a potential employer of Mr. N.N. has a legitimate interest in the past life of a foreign national living in Austria, if this is related to a criminal offence.

A foreign country is not always willing or able to provide the Austrian authorities within a reasonable period of time with the documents and information required for an evaluation of whether a conviction complies with human rights laws. This should already result in serious doubts about whether such a conviction can be entered in the Austrian criminal record. For foreign government agencies it should not be difficult to cooperate with Austrian authorities and to send a copy of a file and to provide additional information. Authorities in foreign countries should be aware of what the consequences of an entry into the criminal record can have for the person affected.

The country in question in this case showed itself incapable of performing this collaborative work efficiently and in a timely manner. Therefore, the Federal Ministry of the Interior should have assessed this inadequacy as "doubt” relative to the conviction’s compliance with human rights and should have expunged the complainant’s entry no later than after a year or even earlier, after the end of the decision period of six months.

It is, however, a positive aspect that in view of this case the Federal Ministry of the Interior has contacted the Federal Ministry of Justice in order to amend the law. The Federal Ministry of Justice agreed to prepare an appropriate amendment of the law in order to remove any remaining ambiguities and to enable a timely expungement of doubtful criminal record entries from foreign countries. The AOB will keep the legislative process under observation.