Fundamental rights (Austria)

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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:

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.

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.

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.

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:

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.

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:

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

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

Web links

Individual evidence

  1. ↑ Finding U 466/11 ( Memento of July 23, 2012 in the Internet Archive ) margin number 43 on pp. 13-14. (accessed May 6, 2012).
  2. ^ Wiener Zeitung May 4, 2012 , (accessed April 14, 2015).
  3. ↑ 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.
  4. ↑ 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.
  5. ↑ Activity report of the Supreme Court 2010 (PDF; 424 kB). Supreme Court website. Retrieved September 17, 2019.