CIVIL

The Judiciary of Austria

Jurisdiction Under 1945 Constitution

Austria is a democratic republic. Its law emanates from the people. Austria is a federal state. 

It is up to the Constitutional Court to monitor compliance with the constitution. Due to its task as a “constitutional court” and its competence to review laws and ordinances, it is specifically called upon to make the constitutional democratic order effective and to ensure its continuity. The Constitutional Court decides between 3,000 and 5,000 cases each year.

All government agencies and other institutions that perform government functions are obliged to comply with the constitution. In the event of an (alleged) violation of the Constitution by this, the Constitutional Court is set up by the Federal Constitution as the body that has to make a final decision and, if necessary, to remedy it. For this reason, he is often referred to as the “guardian of the constitution”.

If the constitutional judges in the course of deliberating on a case have doubts about the validity or interpretation of provisions of European Union (EU) law that are decisive for the decision of the Constitutional Court, the Constitutional Court, like any court of last instance, is obliged to answer the relevant questions Clarification to the Court of Justice of the European Union (ECJ) (order for reference ). In practice, however, this is rarely the case.[www.vfgh.gv.at]

The Constitutional Court consists of 14 constitutional judges : the President, the Vice-President and twelve other members. There are also six substitutes memberswho co-decide a case if one of the members is absent for reasons of bias or illness. Members and substitute members are appointed by the Federal President. The Federal Government has the right to propose the position of President and Vice-President. It also nominates six constitutional judges and three substitute members. The other six members and three substitute members are proposed partly by the National Council and partly by the Federal Council. Although, as with all constitutional courts in the world, their appointment is also a political decision, the constitutional judges act completely independently after taking office and not according to party-political allocations.

All members and substitute members of the Constitutional Court must be qualified for the office by studying law as well as through many years of relevant professional practice. They come from different professions (judges, university professors, civil servants of the federal and state governments, lawyers), from different federal states and from different socio-political environments. Judges, lawyers and university professors can continue to practice their profession and in this way bring their special experience to the consultations. Administrative officials must, however, be decommissioned due to the incompatibility of their binding instructions with the exercise of judicial office.

The office of constitutional judge ends at the end of the year in which they turn 70. They can only be removed beforehand on the basis of a decision by the Constitutional Court itself.

In terms of protocol, the President of the Constitutional Court is treated as a Federal Minister and the Vice-President is treated as a State Secretary. The ranking of the other members is based on their age, as is that of the substitute members. [www.vfgh.gv.at]


Constitutional provisions

Article 82

 Judgments

(1) The Federation is the source of all jurisdiction.
(2) Judgments and decisions are pronounced and drawn up in the name of the Republic.

Article 83 

Court Organization, Constitutional Judge

(1) The constitution and competence of the courts is laid down by federal law.
(2) No one may be deprived of his lawful judge.

Article 84

Military Tribunals

Military jurisdiction, except in time of war, is repealed.

Article 85

Capital Punishment

Capital punishment is abolished.

Article 86 

Appointment

(1) Save as provided otherwise by this law, judges are appointed pursuant to the proposal of the Federal Government by the Federal President or, by reason of his authorization, by the competent Federal Minister; the Federal Government or the Federal Minister shall obtain proposals for appointment from the tribunals competent through the law on the organization of the courts.
(2) If a sufficient number of candidates is available, the proposal for appointment to be submitted to the competent Federal Minister and to be forwarded by him to the Federal Government shall comprise at least three names, but if there is more than one vacancy to be filled at least twice as many names as there are judges to be appointed.

Article 87

Independence

(1) Judges are independent in the exercise of their judicial office.
(2) A judge is independent in the exercise of his judicial office, during the performance of any judicial function properly his by law, and in the allocation of business, though to the exclusion of the judiciary’s administrative business which in accordance with the provisions of the law shall not be discharged by tribunals or commissions.
(3) Business shall be allocated in advance among the judges of a court for the period provided by the law on the organization of the courts.  A matter devolving upon a judge in accordance with this allocation may be removed from his jurisdiction by decree of the judiciary’s administrative authorities only if he is prevented from the discharge of his responsibilities.

Article 87a 

Small Business

(1) The performance of certain kinds of business, which shall be exactly specified and fall within the jurisdiction of a civil court of first instance, can by federal law be assigned to specially trained employees of the Federation who are not Judges.
(2) The judge competent in accordance with the allocation of business can at any time reserve to himself or take over the discharge of such business.
(3) Employees of the Federation who are not judges are bound in the performance of business specified in Paragraph (1) only by instructions from the judge competent in accordance with the allocation of business.  Article 20 (1) third sentence applies.

Article 88

Retirement, Suspension

(1) The law on the organization of the courts will prescribe an age limit upon whose attainment judges will be put on the permanently retired list.
(2) Otherwise judges may be removed from office or transferred against their will or superannuated only in the cases and ways prescribed by law and by reason of a formal judicial decision.  These provisions do not apply to transfers and retirements which become necessary through changes in the organization of the courts.  In such a case the law will lay down within which period judges can, without the formalities otherwise prescribed, be transferred and superannuated.
(3) The temporary suspension of judges from office may take place only by decree of the senior judge or the higher judicial authority together with simultaneous reference of the matter to the competent court.

Article 89

Judicial Review of Laws

(1) Save as otherwise provided by this Article, the courts are not entitled to examine the validity of duly published laws, ordinances, and treaties.
(2) Should a court have scruples against the application of an ordinance on the ground of it being contrary to law, it shall file an application with the Constitutional Court for rescission of this ordinance.  Should the Supreme Court or a court of second instance competent to give judgment have scruples against the application of a law on the ground of its being unconstitutional, it shall file an application with the Constitutional Court for rescission of this law.
(3) If the legal regulation to be applied has already ceased to be in force, the Court’s application to the Constitutional Court must request a decision that the legal regulation was contrary to law or unconstitutional.
(4) Paragraphs (2) and (3) apply analogously to treaties as provided in Article 140a.
(5) Federal law shall determine what effects an application pursuant to Paragraphs (2), (3), or (4) has on the pending legal proceedings.

Article 90

Publicity, Indictment

(1) Hearings in civil and criminal cases are oral and public.  Exceptions are regulated by law.
(2) In criminal proceedings the procedure is by indictment.

Article 91

Juries in Criminal Proceedings

(1) The people shall participate in the administration of justice.
(2) A jury returns a verdict upon the guilt of the accused in crimes entailing severe penalties, to be specified by law, and in all cases of political felonies and misdemeanors.
(3) In criminal proceedings for other punishable offenses Jurors take part in the administration of justice if the penalty to be imposed exceeds a limit to be determined by law.

Article 92

Supreme Court

(1) The Supreme Court is the court of final instance in civil and criminal suits.
(2) Members of the Federal Government, a State government, or a popular representative body cannot be members of the Supreme Court.  For members of a popular representative body elected for a fixed term of legislation or office such incompatibility continues until the expiry of that term of legislation or office even though they prematurely renounce their seat.  Anyone who during the preceding four years has exercised one of the aforesaid functions cannot be appointed President or Vice-President of the Supreme Court.

Article 93

Pardons

Pardons for acts punishable by the courts are extended by federal law.

Article 94

Separation of Powers

Judicial and administrative powers shall be separate at all levels of proceedings.


 

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