Judiciary of Austria

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The seat of the Wels regional court

The Judiciary of Austria (German: österreichische Justiz) is the judicial branch in Austrian politics. Its structure and its responsbilities, which include upholding the rule of law through judicial review of acts of the other two branches, were established by the March Constitution of 1849 and the Kelsen Constitution of 1920.

Structurally, the Austrian judiciary is divided into General Courts (Ordentliche Gerichte) and Courts of Public Law (Gerichte öffentlichen Rechts). The General Courts handle civil and criminal trials as well as non-adversary proceedings such as inheritance cases or legal guardianship matters. The Courts of Public Law supervise the other two branches of government: the administrative court system reviews the legality of administrative acts; the Constitutional Court reviews the constitutionality of laws, the legality of ordinances, and the compatibility of administrative acts with certain fundamental rights. [1]

In addition to the court system proper, the judicial arm of Austrian state power also includes the state prosecution service (Staatsanwaltschaft), the prisons (Justizanstalten) and the correctional officers' corps (Justizwache). Remand prisons for pre-trial detention or other types of non-correctional custody (Polizeianhaltezentren) belong to the executive branch.

The judiciary is assisted by the Ministry of Justice (Justizministerium), a cabinet-level division of the national executive. Starting in 2014, the national government has devolved some of the responsibility for its administrative jurisdiction to the provincial level.

General Courts

The hierarchy of General Courts has four levels: district, regional, higher regional, and supreme. For most cases, original jurisdiction lies with one of the district courts; its decision can be appealed the relevant regional court. Some cases are first tried before the regional court and can be appealed to the higher regional court. Higher regional courts and the supreme court do not have original jurisdiction; they exclusively hear appeals.

The rules regarding appeals are somewhat complex. A regular appeal (German: Berufung) leads to an appellate trial that does not merely review questions of law but that can also introduce new evidence and conduct independent fact-finding. A regular appeal is usually possible only once. The losing party can still lodge an appeal in point of law (Revision), an appeal of the decision on appeal (Revisionsrekurs), or a plea in nullity (Nichtigkeitsbeschwerde) against the decision of the appellate court.

One of the peculiarities of the Austrian judiciary is its strict organizational separation of civil and criminal justice. Courts are divided into civil and criminal chambers; judges spend their days trying either civil cases or criminal cases but never both. In Vienna and in Graz − the country's two largest cities by a wide margin − the two chambers of the regional court are actually two completely separate courts, housed in separate buildings.

In Vienna, there is a third regional court for trials at mercantile law (Handelsgericht) and a fourth regional court for cases involving employment and social assistance law (Arbeits- und Sozialgericht). Normally, original jurisdiction over disputes in these areas of law would lie with the civil regional court. As an additional special case, the higher regional court in Vienna has original jurisdiction over antitrust cases.

District courts

There are currently 115 district courts (German: Bezirksgerichte). Most judicial districts are coextensive with one of the country's 94 administrative districts, although there are exceptions. Some of the larger administrative districts are partitioned into two of ore judicial districts. The extreme case is the City of Vienna, home to no fewer than 12 separate District Courts. In some cases, a District Court serving a city also serves part of the surrounding suburbs. In others, two or three very small administrative districts are lumped together into a single judicial zone.

District courts are responsible for

  • civil trials (Zivilverfahren) involving matrimonial and family matters, real estate rental or lease matters, real estate boundary or easement disputes, or trespass to land;
  • most simple debt collection, foreclosure, and bankruptcy matters;
  • other civil trials with the amount in dispute not exceeding EUR 15,000, excepting employment and social assistance disputes;
  • most criminal trials (Strafverfahren) involving finable offenses or jailable offences with a jail term of no more than one year;
  • most non-adversary matters (Außerstreitsachen), for example probate proceedings, adoptions, declarations of death in absentia, or invalidation of lost securities certificates;
  • most adversary non-trial matters (streitige Außerstreitsachen), including but not limited to child custody disputes, child maintenance and visitation rights disputes, appointments of legal guardians for senile elders or the mentally ill, or expropriation proceedings;
  • maintaining the land register.

Trials before the district court are bench trials decided by a single professional district judge (Bezirksrichter). Non-adversary proceedings, debt collection, foreclosure, bancruptcy, and land register matters can also be decided by a judiciary clerk (Rechtspfleger).

While there are permanent district judges, there are no district attorneys. Criminal trials are prosecuted by a state attorney (Staatsanwalt) attached to the relevant regional court. In minor cases, the public prosecutor can assign a district prosecutor (Bezirksanwalt) to substitute for them. The district prosecutor is not necessarily an attorney, however, and cannot act on their own initiative or authority.

Regional courts

The seat of the Feldkirch regional court

There are 18 regional courts (German: Landesgerichte) in Austria; their seats are in Eisenstadt, Feldkirch, Graz, Innsbruck, Klagenfurt, Korneuburg, Krems an der Donau, Leoben, Linz, Ried im Innkreis, Salzburg, Sankt Pölten, Steyr, Vienna, Wels, and Wiener Neustadt. In Graz and Vienna, the civil and criminal chambers set up as two separate courts, meaning that Graz and Vienna each have a civil regional court (Landesgericht für Zivilrechtssachen) and a criminal regional court (Landesgericht für Strafrechtssachen).

Regional courts are responsible for

  • exercising original jurisdiction over all civil and criminal matters not handled by district courts;
  • hearing appeals (Berufungen) against district court decisions;
  • keeping the company register.

In cases for which the regional court has original jurisdiction, the trial is usually a bench trial decided by a single professional judge, but there are several exceptions:

  • Suits at employment law or social assistance law are decided by a panel of three judges, one professional judge (Berufsrichter) and two lay judges (Laienrichter). The lay judges are expert lay judges (fachkundige Laienrichter) and are effectively meant to double as court-appointed disinterested expert witnesses.
  • Other civil suits can be tried by three-judge panels upon request of the parties if the amount in dispute exceeds EUR 100,000. In cases at mercantile law, the panel consists of two professional judges and one expert lay judge (fachmännischer Laienrichter here). In other cases, the panel consists of three professional judges.
  • Criminal trials are held before three-judge panels, four-judge panels, or juries in cases of alleged homicide, sexual assault, robbery, certain types of grand larceny or fraud, and in any case where the alleged crime carries a maximum jail term of more than five years. The specifics are somewhat involved; the following is a rough outline:
    • Most of the cases outlined above go before a three-judge panel consisting of one professional judge and two lay judges (Schöffen).
    • In cases of alleged manslaughter, aggravated robbery, rape, membership in a terrorist organization, abuse of official authority, or financial crimes causing more than EUR 1,000,000 in damage, a second professional judge is added to the panel.
    • Charges of murder, actual terrorist violence, or armed insurrection, are jury trials decided by three professional judges and eight jurors (Geschworene). The same is true for treason, a number of other political crimes, and all other crimes with minimum jail terms of more than five and maximum jail terms of more than ten years.

In criminal trials, some effort is made to prevent panels and juries from being biased or unable to emphasize with either defendants or alleged victims. If the crime alleged is a sexual assault or some other violation of a person's sexual integrity serious enough to warrant a panel, then at least one of the judges must belong to the same sex as the alleged victim. If there is a jury, then at least two of the jurors must be of the same sex as the alleged victim. If the defendant is juvenile and the alleged crime is serious enough to warrant a panel, then at least one of the judges must be of the same sex as the defendant and at least one of the judges must be a present or former educator or competent social worker. If there is a jury, at least two of the jurors must be of the relevant sex and at least four must have the relevant job experience.

Appeals of district courts decisions to regional courts are decided by three-judge panels: two professional judges and one expert lay judge in trials at mercantile law, three professional judges in all other civil matters and in all criminal cases.

Routine company register decisions are made by single judges or by judicial clerks.

Attached to every regional court dealing with criminal trials, there is a branch of the state prosecution service (Staatsanwaltschaft) and a prison (Justizanstalt). Regional courts and regional-level state prosecutors organize and supervise most of the pre-trial work (Ermittlungsverfahren) in Austria, even in cases in which the main court proceedings (Hauptverfahren) are going to take place in a district court. In many ways, the regional courts are the backbone of the Austrian judiciary.

Higher regional courts

There are four higher regional courts (German: Oberlandesgerichte). They are located in Graz, Innsbruck, Linz, and Vienna.

Higher regional courts decide

  • appeals (Berufungen) in cases originally tried before regional courts;
  • appeals in point of law (Revisionen) in cases originally tried before district courts, i.e. appeals in point of law against appelate decisions reached by regional courts;
  • as a special case, the higher regional court in Vienna decides antitrust disputes.

In criminal trials presided over by a single professional judge (Einzelrichter), prosecution or defense can file a regular appeal against the verdict (Schuldberufung). In trials decided by a panel of judges and in jury trials, a regular appeal is only possible against the sentence (Strafberufung). Appeals in point of law and pleas in nullity (Nichtigkeitsbeschwerden) are possible in any case.

Trials before higher regional courts are bench trials decided by panels of either three or five judges: three professional judges and two expert lay judges in employment and social assistance cases, two professional judges and one expert lay judge in all other civil cases and in all criminal trials.

Each higher regional court has a chief public prosecutor's office (Oberstaatsanwaltschaft).

Supreme Court

Courts of Public Law

The Austrian model of separation of powers forbids the administrative and judicial branches of government from interfering with each other. This peculiarity, established during the neo-absolutist years of the Habsburg monarchy, originally meant that subjects could not take bureaucrats to court or otherwise petition the courts to review the legality of administrative acts. The Constitution of 1920 fixes this problem by establishing the Administrative Court and the Constitutional Court, two tribunals that cut across the division. Pointedly called Gerichtshöfe instead of simply Gerichte, the two tribunals are staffed by lawyer judges and generally behave like courts without technically being courts. The terminology used by most modern English-language literature makes the distinction difficult to see; it remains salient in German texts.

Broadly speaking, the administrative court system reviews administrative acts, the Constitutional Court reviews legislative acts and judicial demarcation conflicts.

Administrative court system

Constitutional Court

State prosecution service

Justizwache

History

March Constitution

The Revolutions of 1848 set Austria on the path from absolute to constitutional monarchy.

In its modern form, the Austrian judiciary goes back to the March Constitution of 1849. Throughout the 18th and early 19th century, the Habsburgs had tried to rule as absolute monarchs, holding unrestricted power over their subjects with no constraints due to any kind of feudal social compact and with no interference from any of the estates of their various realms. The Revolutions of 1848 compelled a first step towards constitutional rule. Under intense pressure, Emperor Ferdinand tried to appease the revolutionaries by enacting the Pillersdorf Constitution, a set of edicts that promised a limited catalogue of civil liberties, a limited form of democratic participation in government, and access to independent courts with the power to review administrative acts and halt administrative overreach.[2][3] The appeasement failed to stem the crisis; Ferdinand had to abdicate. His successor, Franz Joseph succeeded in ending the protests by promulgating the March Constitution, a set of edicts that built on the Pillersdorf Constitution but included a number of additional concessions.[4][5]

The constitution established a number of principles that remain in force until the present day:[6][7][8]

  • The judicial powers and responsibilities of landlords, cities, and ecclesiastical corporations are abolished; all disputes are adjudicated by the State, in courts explicitly created by statutory law and according to procedure explicitly set forth in statutory law. (§20, §100)
  • Justices have judicial independence. (§101)
  • Judiciary and executive are separate powers; court system and bureaucracy cannot squash each other's decisions or otherwise interfere in each other's domains. (§102)
  • Criminal trials are inquisitorial trials (German: Anklageprozesse). While the judge is tasked with actively searching for the truth as opposed to merely refereeing, however, judge and prosecutor are separate entities. The older form of inquisitorial system, in which judge and prosecutor are the same party (Inquisitionsprozesse proper in German) is no longer used. (§103)
  • Trials are oral and public. (§103)
  • Political trials are jury trials. (§103)

Subsequent legislation pursuant to the March Constitution created a court system that also survives, with a few significant but narrow alterations, until this day.[9] Most notably, the outline defined by the constitution was fleshed by the Constitution of the Courts (Gerichtsverfassungsgesetz or GVG) of 1849 and the Penal Procedure Code (Strafprozessordnung or StPO) of 1850:[10][11]

  • The court system is a hierarchy with five levels: district, district collegiate, regional, higher regional, and supreme; (§1 GVG, §8 StPO)
    • District courts (Bezirksgerichte);
    • District collegiate courts (Bezirkskollegialgerichte);
    • Regional courts (Landesgerichte);
    • Higher regional courts (Oberlandesgerichte);
    • Supreme Court (Oberster Gerichts- und Kassationshof)
  • District courts are trial courts with single judges handling civil disputes and minor misdemeanors. (§§2−9 GVG, §9 StPO)
  • District collegiate courts are trial courts with panels of judges trying more serious transgressions. (§§10−11 GVG, §§10−13 StPO)
  • Regional courts are trial courts with panels of judges trying serious crimes, in some cases assisted by juries, but also appellate courts hearing appeals to verdicts of district and district collegiate courts in their respective regions. (§§12−18 GVG, §§14−16 StPO)
  • Higher regional courts and the Supreme Court only have appellate jurisdiction.
  • A professional body of state attorneys (Staatsanwaltschaft) represents the State in court where necessary; most notably, the state attorney's offices act as a professional prosecution service, charging defendants and presenting the case against them before the judge. Regional and higher courts have state attorneys' offices attached to them; the state attorneys working at the regional court level are the backbone of the service. Trials before district courts are usually handled through assistants and proxies. (§29 GVG, §§51−60 StPO)
  • Appeals are limited. Verdicts in civil cases can be appealed up only once; verdicts in criminal cases can be appealed up twice. Appeals in point of law and pleas in nullity may still be possible even when regular appeals are exhausted, but the specifics are complicated. (§2 GVG, §§352−390 StPO)

The main differences between the court system of the March Constitution and the court system as it exists today are the district collegiate courts, since abolished, the comparatively wide purview of the state attorneys, since narrowed, and the fact that there is no judicial review. The separation of powers between judiciary and executive was complete; courts could not overrule the bureaucracy just as the bureaucracy could not overrule the courts. The also was no mechanism for courts to squash unconstitutional legislation. The need for a judicial review of laws was simply not felt at the time. In modern Austria, the main seat of power (Machtzentrum) is the legislature and the Constitutional Court is the monitoring authority acting as a check on it. In the philosophical framework of 19th-century Austria, the imperial court was the main seat of power and the legislature was meant to be the monitoring authority.

Return to absolutism

Emperor Franz Joseph spent much of his early reign trying to reassert unqualified sovereignty.

Since the March Constitution was decreed (German: oktroyiert) by the crown as opposed to enacted by the people or agreed upon by the empire's constituent crown lands, Franz Joseph felt at liberty to walk back on his promises as soon as he had regained a firm grip on his subjects. The Constitution (Verfassung) was abrogated in 1852 and replaced with a number of "constitutional principles" (Verfassungsgrundsätze) that sounded vaguely progressive but did not actually bind the ruling house to any real degree. Franz Joseph was trying to return to absolutist rule.[12][13]

Jury trials were abolished. A complete rewrite of the Penal Procedure Code in 1853 reintroduced old-style inquisitorial trials. Judges lost their independence. State attorneys continued to exist but lost most of their responsibilities; they were essentially reduced to their function as public prosecutors, and comparatively powerless ones at that. Trials were no longer public. Trials before higher regional courts and the supreme court were no longer oral. On the district level, the separation of powers was abandoned, at least on paper. District courts were merged into district administrative offices, although in practice district judges continued to operate much as they had before.[14][15]

The return to absolutism ultimately failed. The continuing rise of civic nationalism and continuing demands by Austria's Hungarian and Slavic subjects for material autonomy, exacerbated by a series of diplomatic setbacks, kept eroding the cohesion of the empire and the personal authority of the emperor. By 1961, Franz Joseph was forced to grant a third constitution. Following his defeat in the Austro-Prussian War in 1866, he was forced to give up for good on his desire to remain the sole sovereign and font of law. In the Austro-Hungarian Compromise of 1867, the Kingdom of Hungary received near-complete independence. Shortly thereafter, the remainder of the empire received the December Constitution, a fourth and final set of fundamental laws that the emperor would no longer be able to unilaterally scrap.[16][17]

December Constitution

As far as civil and criminal jurisprudence was concerned, the December Constitution mostly just resurrected the principles originally stipulated in 1849. Judges regained their autonomy and independence, although state attorneys remained limited to their narrow role as prosecutors. The constitution restored full separation of powers, including on the district level. District courts, accordingly, were detached from district administrative offices again. District collegiate courts, on the other hand, were not; they were simply abandoned.[18][19]

The system of General Courts now had the same four rungs it still has today:

  • District courts (German: Bezirksgerichte);
  • Regional courts (now called Kreisgerichte instead of Landesgerichte);
  • Higher regional courts (still called Oberlandesgerichte);
  • Supreme Court (Oberster Gerichts- und Kassationshof).

The December Constitution did more than merely revive suspended institutions, however. One of its parts, the Basic Law on the General Rights of Nationals (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger) was a formal bill of rights, the first such document in Austrian history. Other parts of the constitution entrenched the rule of law and made it clear that Habsburg subjects would from now on be able to take the State to court should it violate their fundamental rights.[20] Since regular courts were still unable to overrule the bureaucracy, much less the legislature, these guarantees necessitated the creation of specialist courts that could:[21][22]

  • The Administrative Court (Verwaltungsgerichtshof), stipulated by the 1867 Basic Law on Judicial Power (Staatsgrundgesetz über die richterliche Gewalt) and implemented in 1876, had the power to review the legality of administrative acts, ensuring that the executive branch remained faithful to the principle of the rule of law.
  • The Imperial Court (Reichsgericht), stipulated by the Basic Law on the Creation of an Imperial Court (Staatsgrundgesetz über die Einrichtung eines Reichsgerichtes) in 1867 and implemented in 1869, heard complaints about alleged government misconduct that fell outside of the purview of the Administrative Court. It was not a Constitutional Court in the modern sense yet, but it did hear complaints about alleged violations of fundamental rights, including but not limited to rights enumerated in the Basic Law on the General Rights of Nationals. It also decided demarcation conflicts between other courts or between the judiciary and the executive.
  • The State Court (Staatsgerichtshof) held the emperor's ministers accountable for political misconduct committed in office. The State Court was an oblique and roundabout way of keeping the emperor himself in check. The emperor himself could not be taken to court, but under the terms of the Law on the Responsbility of Ministers (Gesetz über die Verantwortlichkeit der Minister) of 1867 he was no longer an autocrat; many of his decrees and injuctions now depended on the relevant minister to countersign them. The double-pronged approach of making the emperor dependent on his ministers and also making ministers criminally liable for bad outcomes would firstly enable, secondly motivate the ministers to put pressure on the monarch.[23] The statute in question actually predates the Constitution by a few months, but the Constitution conspicuously failed to abrogate it; it also expressly confirmed the legal inviolability of the person of the emperor himself.[24][25]

The December Constitution thus created the distinction between General Courts and Courts of Public Law.

The court system it established underwent no significant further changes until the collapse of the empire in 1918.

Kelsen Constitution

Later developments

References

  1. ^ Stelzer, Manfred (2011). The Constitution of the Republic of Austria: A Contextual Analysis. Hart Publishing. p. 20. ISBN 978-1-8411-3852-7. 
  2. ^ Brauneder, Wilhelm (2009). Österreichische Verfassungsgeschichte (11th ed.). Vienna: Manzsche Verlags- und Universitätsbuchhandlung. pp. 112−114. ISBN 978-3-214-14876-8. 
  3. ^ Hoke, Rudolf (1996). Österreichische und deutsche Rechtsgeschichte (2nd ed.). Vienna: Böhlau Studienbücher. pp. 341−345. ISBN 3-205-98179-0. 
  4. ^ Brauneder pp. 119, 122, 125, 127−128.
  5. ^ Hoke, 345−353
  6. ^ Kaiserliches Patent, die Reichsverfassung für das Kaiserthum Oesterreich enthaltend. RGBl. 150/1848, March 4, 1849. Retrieved on 2018-05-18.
  7. ^ Brauneder pp. 125, 127−128
  8. ^ Hoke, pp. 356−357.
  9. ^ Brauneder pp. 127−128.
  10. ^ Kaiserliche Entschließung vom 14. Juni 1849, womit die Grundzüge der neuen Gerichtsverfassung genehmigt werden, RGBl. 278/1849, June 14, 1849. Retrieved on 2018-05-18.
  11. ^ Kaiserliches Patent, wodurch eine neue provisorische Strafproceß-Ordnung mit der Bestimmung kundgemacht wird, daß der Tag, an welchem sie in Wirksamkeit zu treten hat, erst nachträglich bekannt gegeben wird, RGBl. 25/1850, January 7, 1850. Retrieved on 2018-05-18.
  12. ^ Brauneder p. 134.
  13. ^ Hoke pp. 359−360
  14. ^ Brauneder pp. 145−146.
  15. ^ Hoke pp. 361, 363−364
  16. ^ Brauneder pp. 154−155.
  17. ^ Hoke pp. 370−371, 385−387
  18. ^ Brauneder pp. 174−175.
  19. ^ Hoke pp. 397−400
  20. ^ Brauneder p. 157
  21. ^ Brauneder pp. 160−161.
  22. ^ Hoke pp. 403−404
  23. ^ Gesetz über die Verantwortlichkeit der Minister, RGBl. 101/1867, July 25, 1867. Retrieved on 2018-05-18.
  24. ^ Staatsgrundgesetz über die Ausübung der Regierungs- und der Vollzugsgewalt, RGBl. 145/1867, December 21, 1867. Retrieved on 208-15-18.
  25. ^ Hoke pp. 394−395.
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