Fundamental rights (Austria)
In Austria , unlike in many other countries, the fundamental rights are not contained in one law, but - like the entire Austrian Federal Constitution - are distributed over numerous laws. Individual laws or even just individual paragraphs are given constitutional status.
The word “basic right” is rarely used. For example, the Austrian Federal Constitutional Law speaks of “constitutionally guaranteed rights”, the Basic State Law of “general rights”. In the tiered structure of the legal system, the basic rights form subjective-public law, which is granted to the individual by a legal provision with constitutional status. As a result, many basic rights are not explicitly formulated.
Several constitutionally guaranteed rights in the individual laws partially overlap in their area of protection (for example: Right to respect for private and family life, Art 8 ECHR with the fundamental right to data protection and protection of the confidentiality of letters and protection of the confidentiality of telecommunications from the StGG ) or appear twice in terms of terminology (For example: Freedom of expression: Art 13 StGG and Art 10 ECHR; freedom of association and assembly: Art 12 StGG and Art 11 ECHR) - both by adopting the entire European Convention on Human Rights and elevating it to constitutional status.
Legal sources
The following list gives a selection and overview of the most important laws on fundamental rights in historical order. Previously anchored rights are not repeated in the individual law, as are those that were later redefined, these are in the current legal source.
Law for the Protection of Domestic Rights
Main article: Law for the Protection of Domestic Rights
This law for the protection of house rules against attacks by the organs of public authority, which was passed on October 27, 1862, regulates when a house search may be carried out and when not, ergo the person is protected from it. It is based on Section 10 of the Basic Rights Patent 1849 and was declared a component of the State Basic Law in 1867 (Art. 9) and is still valid today.
State constitution on the general rights of citizens
This law, which formed part of the December constitution of 1867 and was based on the March constitution of 1849 (including the fundamental rights patent ), and which was incorporated into the legal system of the republic in 1918, contains some of the most important fundamental rights:
- Equality law for Austrians: “All citizens are equal before the law.” (Art 2 StGG 1867, also Art 7 B-VG 1920 ): Originally the principle of equality only guaranteed equality of application of the law (“equality before the law”), i. This means that the law is to be applied equally to everyone, i.e. that every person, regardless of class, class, gender, creed, etc., is subject to the law. This should mainly bind the enforcement organs and protect them from arbitrariness. The VfGH developed the principle of equality in its case law beyond the historical and literal meaning. He also tied the legislation to it and derived a general objectivity requirement and protection of legitimate expectations.
- Equal access to public offices (Art 3)
- Free movement of persons (Art 4 para 1, also Art 2 para 1 4th ZPEMRK 1969 )
- Free movement of property (Art 4 para 1, also Art 2 para 1 4th ZPEMRK 1969 )
- Inviolability of property (Art 5, and Art 1 1st ZPEMRK 1958 )
- Stay freedom and choice of residence (Article 6 1, also Article 2 paragraph 1 4.ZPEMRK 1969 )
- Freedom of employment (exercise) (Art 6 para 1)
- Freedom to move property (Art 6 Para 1)
- Abolition of any subjection and bondage association (Art 7; i.i. Prohibition of slavery , forced and compulsory labor , Art 4 ECHR 1958 ) - in the main since the subject patent (waiver of serfdom) of Joseph II of 1781
- Inviolability of domiciliary rights (Art 9, also Art 8 ECHR 1958 ), including protection against arbitrary house searches ( Law for the Protection of Domestic Rights , 1862 )
- Protection of the confidentiality of letters (Art 10, also Art 8 ECHR 1958 )
- Right of petition (Art 11)
- Freedom of association (Art 12, ie freedom of association Art 11 ECHR 1958 )
- Freedom of assembly (Art 12, also Art 11 ECHR 1958 )
- Freedom of expression (Art 12 para 1, also Art 10 ECHR 1958 )
- Freedom of the press (Art 12 para 2)
- Freedom of religion : freedom of belief (Art 14, also Art 63 para 2 StV St. Germain 1919 , Art 9 ECHR 1958 ) including the freedom to practice religion ( domestic / private practice of religion for followers of a religion that is not legally recognized , Art 16 StGG; public practice of religion for members by law recognized churches and religious societies, Art 15 StGG)
- Freedom of conscience (Art 14, also Art 9 ECHR 1958 )
- Freedom of science and its teaching (Art 17 para 1)
- Freedom of teaching (Art 17 Paragraph 2)
- Art freedom (Art 17a, since 1982)
- Freedom of career choice and professional training (Art 18)
- Equal rights of the ethnic groups of Austria (Art 19 - in the legal text: "Volksstämme"), in particular the right to preserve and maintain nationality and language (Paragraph 1), Equal rights in school, office and public life (Paragraph 2) and training in one's own language in multilingual areas (Paragraph 3); this article is considered to be derogated by Art. 66–68 StV St. Germain 1919 , but is still legally effective.
State Treaty of Saint-Germain-en-Laye
The treaty of September 10, 1919 regulated the conditions for the creation of the republic and is still binding as international law today.
- Right to life (Art 63 para 1 StV St. Germain; also Art. 2 ECHR 1958 , 6th ZPEMRK 1985 , Art 85 B-VG 1920 )
- Right to freedom (Art 63 para 1, also Art. 6 ECHR 1958 )
- Equal rights and prohibition of discrimination for all residents of Austria, in particular for members of all minorities (Art 62 ff)
- Freedom of speech (Art 66 para 3); especially for minorities (Art 67)
- Special rights of language minorities (Art 66 Paragraph 2; especially mother tongue teaching at public elementary schools in residential areas, Art 68; for Slovene and Croat minorities also Art 7 StV Vienna 1955 )
Federal Constitutional Law
This law (B-VG) of November 10, 1920 formed the basis of the First Republic of Austria and was reinstated after the Second World War.
- Right of citizens to perform voluntary service in the armed forces and the right to terminate this (Art 9a Para 3 B-VG; since 1998)
- Right to conscientious objection to military service (Art 9a Para 4)
- Public rights at private schools (Art 14 para 7)
- Active and passive right to vote : to the European Parliament (Art 23a, since 1995); to the National Council (Art 26); to the office of Federal President (Art 60); to the state parliaments (Art 95); to the municipal council (Art 117 para 2)
- Right to vote on: popular initiative (Art 41, Paragraph 2); Referendums (Art 46 para 2); Referendums (Art 49b Para 3)
- Right to the legal judge (Art 83 (2))
State treaty on the restoration of an independent and democratic Austria
This state treaty on the restoration of an independent and democratic Austria, given in Vienna on May 15, 1955 (long title), concluded the occupation.
- Special rights of the Slovenian and Croatian language minorities : use of their own language before authorities ( official language , Art 7 Z 3 StV Vienna), own secondary schools (Art 7 Z 2)
Convention for the Protection of Human Rights and Fundamental Freedoms
The European Convention on Human Rights (ECHR) of 1951 came into force in Austria on September 3, 1958. As a treaty under international law, it has been generally transformed and is directly applicable as self-executing . The newly introduced fundamental rights are:
- Prohibition of torture (right not to be subjected to inhuman or degrading punishment or treatment, Art 3)
- Right to a court decision in civil and criminal matters and to a fair trial as well as to a constitutional minimum standard in criminal proceedings (Art 6)
- No punishment without a law (Art 7)
- Right to respect for private and family life (Art 8; including telecommunications secrecy , this also Art 10a StGG , since 1973)
- Freedom of thought (Art 9)
- Right to security (Art 12)
- Right to get married (Art 12)
- Right to start a family (Art 12)
- Right to an effective complaint (Art 13)
- Equal rights and non-discrimination for all people (Art 14)
- Freedom of political activity for foreigners (Art 16)
Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms
1. Protocol of March 20, 1952, also co-ratified in 1958.
- Right to education (Art 2)
- Right to free elections (Art 3)
Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms
This protocol of September 16, 1963 came into force in 1969. Newly created basic rights are:
- Right to enter the home country (Art. 3 Paragraph 2 4th ZPEMRK 1969) and ban on expulsion from the home country (Art 3 Para 1 4th ZPEMRK) - only for Union citizens
Federal law on the protection of personal data
The DSG has contained the basic right to data protection (§ 1) since 1978 , which gives everyone the right to confidentiality of personal data. The right is the only fundamental right in Austria that has direct third-party effect .
Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms, abolishing the death penalty
This protocol of April 28, 1983, which abolished the death penalty in peacetime, entered into force in Austria on March 1, 1985. The death penalty was abolished in Austria in the ordinary process as early as 1787 by Joseph II (valid until 1795), then in the First Republic (valid until 1934) and finally finally in 1950. The last execution by Austrian authorities took place in this year took place in Austria. In 1968 the death penalty was also abolished from the martial law in Austria .
Federal constitutional law on the protection of personal freedom
Main article: Federal Constitutional Law on the Protection of Personal Freedom
This 1988 law once again expressly regulates when someone may be arrested or stopped and when not, so the person is protected from it. The law of October 27, 1862 for the protection of personal freedom became part of the constitution in 1867 and was valid as such until 1988.
Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms on the Complete Abolition of the Death Penalty
This protocol of May 3, 2002, with which the death penalty was completely abolished, both in times of peace and in time of war, came into force on May 1, 2004 (retrospectively, announced 2005). This made the abolition in 1968 binding under international law.
European Charter of Fundamental Rights
The Charter of Fundamental Rights, proclaimed in 2000 but only entered into force on December 1, 2009 with the Treaty of Lisbon, essentially adopts the fundamental rights from the European Convention on Human Rights and binds them in, since it was intended as the basis for a common European constitution the law of the European Union . According to Article 6 of the Treaty on European Union, it is expressly designated as having equal priority with this treaty.
In its ruling on March 14, 2012, the Constitutional Court declared that the Charter of Fundamental Rights for Austria was one of those norms that it used as a yardstick for constitutional conformity with Austrian law, and that conflicting general norms would be repealed. This was interpreted as a fundamental decision and a "milestone in the development of the fundamental rights judicature".
Other important fundamental rights
- Right to equal treatment of strangers among themselves (Art 1 BVG for the implementation of the international convention on the elimination of all forms of racial discrimination , 1973)
- Right to civil service (§ 2 Civil Service Act 1986 - ZDG)
Enforcement of fundamental rights
Special administrative jurisdiction
By filing a complaint with the Constitutional Court , a person can challenge findings and decisions of the administrative courts that violate fundamental rights.
The prerequisites for this are (cumulative):
- The complainant is a holder of fundamental rights
- Collection within 6 weeks after delivery of the final decision
Requirements (alternative):
- The complainant's allegation that the decision violated his constitutionally guaranteed right
- Allegation of the complainant that his right was violated by the decision for the application of an unlawful regulation
- Allegation of the complainant to be violated in his right by the decision because of the application of an unlawful announcement about the republication of a law (also international treaty)
- Allegation of the complainant that his law was violated by the decision for the application of an unconstitutional law
- Allegation of the complainant to be violated by the decision because of the application of an illegal international treaty
The complaint must be submitted as a written application with specific content requirements (Section 15 VfGG) by an authorized lawyer (Section 17 (2) VfGG). A submission fee of EUR 220 must be paid (Section 17a Z 1 VfGG). There is the possibility of procedural assistance (Sections 63 ff ZPO in conjunction with Section 35 (1) VfGG).
Until the 2012 amendment to administrative jurisdiction came into effect on January 1, 2014, it was not the decisions of the administrative courts but the decisions of the administrative authorities issued in the last instance that could be challenged within the framework of the special administrative jurisdiction. In 2010 there were a total of 2685 (1800 from 2010, 885 from previous years 2007, 2008, 2009) pending appeal proceedings. 1,738 of these were dealt with in 2010, 947 remained pending in 2011.
Norm control procedures
If a law or an ordinance violates a fundamental right, this can be taken up by standards control procedures. Be available:
- Examination of the illegality of ordinances (Art 139 B-VG)
- Examination of the illegality of announcements about the republication of a law (State Treaty) (Art 139a B-VG)
- Examination of the unconstitutionality of a law (Art 140 B-VG)
- Examination of the illegality of international treaties (Art 140a B-VG)
It is worth mentioning that a single person can also apply for a standards control procedure under certain conditions (individual application).
In 2010, there were a total of 268 (208 from 2010, 60 from previous years 2007, 2008, 2009) pending legal review proceedings and 249 (170 from 2010, 79 from previous years 2007, 2008, 2009) pending statutory review proceedings. 103 legal review procedures were completed in 2010, 165 remained pending in 2011. 110 ordinance review procedures were completed in 2010, 139 remained pending in 2011. There were 38 completed individual applications in the ordinance review procedure and 30 in the statutory review procedure.
See also: norm control procedure
Fundamental rights complaint
A fundamental rights complaint is available to every person who has violated his or her fundamental right to personal freedom through a criminal court decision or order. The complaint is not admissible when imposing and executing prison sentences and preventive measures for criminal offenses. The Supreme Court decides (§ 1 GRBG).
In 2010, 75 fundamental rights complaints were settled. 3 of them were eligible.
Ordinary jurisdiction
If a judgment in the course of civil or criminal proceedings violates a fundamental right, the person concerned cannot appeal to the VfGH. A “judgment appeal” does not exist. The person concerned only has the ordinary legal recourse according to the civil procedure code or the criminal procedure code up to the Supreme Court, which then examines the violation of fundamental rights.
Individual complaint
In the last instance, the European Court of Human Rights can also be referred to the European Court of Human Rights in accordance with Articles 34 and 35 ECHR by any natural person, non-governmental organization or group of persons with a complaint alleging a violation of fundamental rights. However, only basic rights of the ECHR and the additional protocols may be violated.
See also: European Court of Human Rights
literature
- Walter Berka : The basic rights: basic freedoms and human rights in Austria. 1st edition. Springer, Vienna New York 1999, ISBN 3-211-83355-2 .
Web links
- Catalog of constitutionally guaranteed rights . On vfgh.gv.at , website of the Constitutional Court
Individual evidence
- ↑ Finding U 466/11 ( Memento of July 23, 2012 in the Internet Archive ) margin number 43 on pp. 13-14. (accessed May 6, 2012).
- ^ Wiener Zeitung May 4, 2012 , (accessed April 14, 2015).
- ↑ Activity report of the Constitutional Court 2010 ( Memento from July 23, 2012 in the Internet Archive ) (PDF; 5.1 MB). Constitutional Court website. Retrieved September 26, 2011.
- ↑ Activity report of the Constitutional Court 2010 ( Memento from July 23, 2012 in the Internet Archive ) (PDF; 5.1 MB). Constitutional Court website. Retrieved September 26, 2011.
- ↑ Activity report of the Supreme Court 2010 (PDF; 424 kB). Supreme Court website. Retrieved September 17, 2019.