Federal Presidential Election Act 1971

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Basic data
Title: Federal Presidential Election Act 1971
Long title: Federal Presidential Election Act 1971 - BPäsWG
Abbreviation: BPäsWG
Type: Federal law
Scope: Republic of Austria
Reference: Federal Law Gazette No. 57/1971
Date of law: February 16, 1971
Effective date: February 25, 1971
Last change: Federal Law Gazette I No. 32/2018
Please note the note on the applicable legal version !

The Federal Presidential Election Act 1971 is an Austrian federal law , which regulates the requirements for the admission of persons to the Federal President election and the procedure of the election.

Provisions

General

The Federal President has been elected by the federal people since 1951 on the basis of the constitutional provision of Art. 60 of the Federal Constitutional Act (B-VG) “on the basis of the same, direct, personal, free and secret suffrage of men and women entitled to vote in the National Council; if only one candidate stands for election, the election must be carried out in the form of a vote ”(Paragraph 1). The more detailed provisions are regulated in the present Federal President's Election Act 1971 .

Originally, elections for the Federal President were compulsory for all of Austria ; the regulation about this was a matter for the federal states. After Tyrol became the last federal state to abolish compulsory voting, for the first time since the federal presidential election in 2010 there is no longer any obligation in the entire federal territory.

Suffrage

Anyone who is actively eligible to vote in accordance with Section 4 in conjunction with Sections 21 to 25 of the National Council Election Regulations (NRWO) is also eligible to vote in the National Council election, i.e. all Austrian citizens who are 16 years of age at the latest by the end of the day of the election (before the 2011 election reform : 18 years of age) and have not been excluded from voting by a court conviction.

Eligible to vote passively is, who according to Art. 60 para. 3 of the Federal Constitution and in accordance with § 6 "to para. 1 BPräsWG National selectable and has completed 35 years of age on election day." According to § 6 para. 2 is a re-election only once permissible for the immediately following term of office, that is a term of office of a maximum of 12 years in one piece.

Nominations must be submitted to the federal electoral authority based in the Ministry of the Interior by 5:00 p.m. on the 37th day before the election day at the latest. A total of 6,000 declarations of support must be attached to the nominations. Declarations of support can be submitted in the respective municipal office, but only for one candidate per person entitled to vote.

Election process

Pursuant to Section 26, no other election or referendum may be held at the same time as the election of the Federal President .

According to Art. 60 Para. 2 B-VG and according to § 17 BPäsWG, whoever has more than half of all valid votes is elected. If none of the applicants achieve the required majority, a second ballot, the so-called runoff ballot , must be held between the two candidates with the highest number of votes from the first ballot. If, on the other hand, only one candidate stands for election, this is to be held as a vote in accordance with Art. 60 Paragraph 1. He is elected if he receives more valid “yes” than “no” votes in the election according to § 11 para. 4 BPäsWG. The election is to be repeated in both cases - runoff or just one applicant - until a clear majority result is established.

After the "immediate" announcement of the official final result on the official notice board of the Ministry of the Interior as well as on the Internet ( Section 21, Paragraph 1), no contestation of the election pursuant to Section 22 (see below) has been brought in or, if the Constitutional Court (VfGH) has not allowed one, has the Federal Chancellor - in the first case after the contestation period and in the second case after the decision of the Constitutional Court - to announce the result of the Federal President election immediately in the Federal Law Gazette for the Republic of Austria .

Election contestation

In accordance with Section 21, Paragraph 2 of the BPäsWG, the election decision of the federal electoral authority in accordance with Paragraph 1 (see section above) can be challenged at the Constitutional Court within one week of the date on which the official final result is announced, for any alleged illegality of the electoral process. The legitimation of the application lies with the "authorized delivery representative of an election proposal that complies with the law ( Section 9 )" "The challenge must contain the reasoned application for the annulment of the electoral procedure or a specific part of it."

The Constitutional Court has to decide on the challenge no longer than four weeks after the submission. In the event that the VfGH cannot make a decision within this period, the legislature has not taken any precautions; However, in August 2014, as a result of an election challenge regarding the 2014 European elections , the Constitutional Court interpreted the analogous deadline in § 80 EuWO to the effect that in such a case it "is required to do everything possible to meet this deadline."

The term of office of a Federal President cannot be extended, however, it ends at least six years after his inauguration , "the position of Federal President" is then "permanently done". In the event that the Constitutional Court exceeds the 4-week period and it only publishes its findings after the fixed swearing-in date, the Presidium of the National Council as a collegiate body temporarily exercises "the functions of the Federal President" ( Art. 64 para . 1)

"Habsburg Paragraph"

Historical origin

After the end of the Austro-Hungarian monarchy , the resignation of Emperor Charles from the business of government and his forced departure from the newly created First Republic of Austria, the original version of the Federal Constitutional Law of 1920 in Art. 60 Para Suffrage for the election of the Federal President - known as "the Habsburg Paragraph" - introduced: "Members of ruling houses or families who have previously ruled are excluded from eligibility."

This wording was identical until September 30, 2011 in the version applicable in both provisions since July 1, 2007

  • Art. 60 para. 3 sentence 2 B-VG (since entry into force on December 11, 1929; before that in para. 4) and
  • Section 6 (2) of the BPäsWG 1971 (since entry into force on February 25, 1971).

background

The background was to prevent a monarchist overthrow through the office of the Federal President, which according to the unanimous opinion, as well as the Greens in their initiative motion to abolish this provision introduced two years after the end of the monarchy, was at least objectively justified. Until recently, however, it remained unclear what the legislators of the time actually had in mind with the ambiguous formulation "... members of ruling houses or such families who previously ruled": Did they really only want the members of the "House of Habsburg", which perished with the monarchy ( i.e. to exclude the members from the formerly ruling Habsburg-Lorraine family who were still living at the time ) from the newly created republican office of the Federal President? Should all living and future members of the Habsburg-Lothringen families be excluded for all time? To whom should the former phrase "members of governing houses" refer?

Constitutional complaint

In the run-up to the 2010 federal presidential election, Ulrich Habsburg-Lothringen , local council of the Greens in Wolfsberg , and his daughter-in-law, Gabriele Habsburg-Lothringen, filed a complaint with the Constitutional Court (VfGH) in September 2009 to abolish the so-called "Habsburg Paragraph". Habsburg-Lothringen justified this with the fact that not being allowed to vote for the Federal President would violate the constitutionally guaranteed right to equality before the law, the objectivity requirement , the requirement of certainty and the right to free and democratic elections. The Carinthian lawyer Rudolf Vouk acted as legal representative before the Constitutional Court . The two complaints, which were combined by the Constitutional Court in a joint settlement, were rejected by a decision of the Constitutional Court of December 10, 2009, since a contestation of electoral laws is only permitted in the context of a subsequent contestation of the election.

Legislative initiative to abolish it

In December 2009, before the Constitutional Court had decided on the Habsburg-Lorraine complaint, the former leader of the Greens, Alexander Van der Bellen , announced that he would introduce a motion to repeal the discriminatory provisions of the constitution with regard to the federal presidential election, which the Greens with a Implement the initiative application on December 11, 2009. The party chairman of the FPÖ , Heinz-Christian Strache , announced that he would support this initiative.

In January 2010, Habsburg-Lothringen announced that, following the decision of the Constitutional Court, he would contest the result of the federal presidential election and also turn to the European Court of Human Rights, an actual implementation of his project has not become known.

At the beginning of February 2010, both the SPÖ Federal Managing Director Günther Kräuter and Wilhelm Molterer , who at that time were constitutional spokesman for the ÖVP , spoke out in favor of lifting the ban on standing as "out of date". While Molterer spoke out in favor of repeal before the election date on April 25, 2010, Kräuter stated that his party would only decide on it after the federal presidential election [2010]. As part of the major electoral reform in 2011, all parties represented in the National Council decided on June 16, 2011, among other things, to abolish the two “Habsburg Paragraphs”. An exclusion from the passive right to vote as Federal President, which - depending on the legal interpretation - primarily affected the members of the Habsburg-Lothringen family , no longer took place.

In retrospect, the Habsburg-Lothringen initiative was seen as the trigger.

See also

literature

  • Robert Stein : Right to vote: Postal voting, deadlines, exclusion. On October 1, 2011, the Electoral Law Amendment Act 2011 came into force. Among other things, it brings innovations to postal voting and reasons for exclusion from voting. In: Public Safety , Issue 11–12 / 2011, Federal Ministry of the Interior (Ed.), Vienna 2011, pp. 89–91 ( PDF; 138 kB ).
  • Karin Stöger: Head or Representative? The position of the Federal President in the Austrian political system. Series of learning modules for political education. Democracy Center Vienna (Ed.), February 2016 ( PDF; 356 kB ).

Web links

References and comments

Individual evidence

  1. ↑ a b Historical development of Article 60 of the Federal Constitutional Law in the Federal Legal Information System (RIS).
  2. ↑ See Federal Law Gazette I No. 43/2011
  3. ↑ a b See the contestation of the second round of the 2016 federal presidential election , submitted on June 7, 2016 to the Constitutional Court via the office of the former FPÖ Minister of Justice Dieter Böhmdorfer by the FPÖ party chairman Heinz-Christian Strache , the authorized representative for the FPÖ elected candidate Norbert Hofer . ( Full text online (PDF 152 pp.) On diePresse.com , accessed on June 14th.)
  4. ↑ Federal Act on the Election of Members of the European Parliament (European Election Regulation - EuWO) in the version applicable in August 2014: Section 80 last sentence EuWO in the version dated March 1, 2010.
  5. ↑ Decision of the Constitutional Court , VfGH WI2 / 2014 of August 22, 2014, full text and legal sentence in the RIS . In IV. Result and related statements, margin number 4, the Constitutional Court formulates the exceeding of the deadline: “Finally, the deadline imposed on the Constitutional Court in accordance with §80 EuWO to decide on the contesting of an election to the European Parliament is no longer than four weeks after it Contribution to record the following: The Constitutional Court interprets the provision of §80 EuWO in such a way that it is obliged to do everything in its power to meet this deadline. However, if this is not possible due to other procedural provisions required by the rule of law or due to mandatory Union law, this provision obliges the Constitutional Court to decide as quickly as possible. "
  6. ^ Historical development of § 6 of the Federal Presidential Election Act 1971 in the RIS .
  7. ↑ a b Application by Members Musiol, Van der Bellen, Freundinnen and Freunde. (PDF) Initiative proposal 914 / A XXIV. GP of the Greens, introduced on December 11, 2009: “The National Council wants to pass a Federal Constitutional Act, with which the Federal Constitutional Act, Federal Law Gazette No. 1/1930 as amended, Federal Law Gazette I No. 106/2009 , is changed and federal law with which the Federal President Election Act 1971, Federal Law Gazette No. 57/1971 in the version of Federal Law Gazette I No. 28/2007 is changed. "
  8. ^ Habsburgs are fighting for candidacy. In Wiener Zeitung , September 17, 2009, accessed on November 7, 2013.
  9. ^ Decision of the Constitutional Court , VfGH G222 / 09 et al. Of 10 December 2009, legal rule and decision (anonymised full text) in the RIS .
  10. ↑ Greens and FPÖ want to enable Habsburg candidacy. In: derStandard.at , 2009.
  11. ↑ Habsburg rebel wants to go to the Hofburg. ( Memento from March 7, 2010 in the Internet Archive ) In: Kurier , January 2010.
  12. ^ Coalition wants to lift the ban on Habsburgs. In: Der Standard , February 8, 2010, accessed February 9, 2010.
  13. ^ ÖVP wants to abolish the Habsburg ban. In: Der Standard , June 29, 2010, accessed September 13, 2010.
  14. ↑ National Council repairs postal voting. In: Der Standard , June 16, 2011.

Remarks

  1. ↑ a b Cf. Robert Stein (long-time head of the Electoral Affairs Department (III / 6) in the Ministry of the Interior): Right to vote: postal votes, deadlines, exclusion. In: Public Safety, Issue 11–12 / 2011 (see lit. ), here p. 90:
    “… With this sentence of Art. 60 Para. 3 B-VG, the legislature of the 1920s wanted to prevent it from possibly becoming a restoration of the imperial house would come. The name 'Habsburg' does not appear in the legal text, however, and from a modern legal point of view, the constitutional norm that has now expired contains several 'indefinite legal terms'. The amendment to the Federal Constitutional Act and, as a result, the Federal Presidential Election Act 1972 was a political decision. For the federal electoral authority, however, it means more legal certainty in future federal elections, since in many cases it would have been unclear to them what a 'ruling house' is or what a 'family that previously ruled' actually is. "
  2. ↑ a b Cf. Karin Stöger: Head or Representative? The position of the Federal President in the Austrian political system. February 2016 (see lit. ), in chapter: IV. Eligibility, p. 5:
    “… This was laid down in the constitution of 1920 in view of the recently collapsed monarchy, in view of the fears that had dominated politics in Austria for a long time about a return monarchical tendencies. A change in the form of government towards a monarchy via the detour of the republic through a member of the previously ruling family was thus to be prevented (see also Ermacora, 1998, p. 318). These fears persisted for a long time. Only with the 2011 Electoral Law Amendment Act (     Federal Law Gazette I No. 43/2011 ) was this reason for exclusion from the election for the office of Federal President removed. "