Instruction (Austria)

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The instruction is a term in the Austrian legal system that is used in administrative law, criminal law and private law.

The instruction in the administration

In state administration, instruction refers to the order given to an official body. Legally binding instructions can only be issued by the state administration authority higher than the official body, including the state administration. This has been determined in the Federal Constitutional Act since 1920 : The official organs are

"... unless otherwise stipulated by constitutional law, bound by the instructions of their superior bodies and responsible for their official activities. The subordinate body can refuse to follow an instruction if the instruction was either given by an incompetent body or if compliance would violate criminal law provisions. "

- Art. 20 para. 1 B-VG

If the recipient of an instruction has doubts about its legality, he has the right of remonstration under the Civil Service Service Act , if there is no imminent danger . The instruction must be given in writing, if it is upheld.

Article 103 of the Federal Constitutional Act stipulates that a governor is bound by instructions from the federal government and the individual federal ministers “in matters of indirect federal administration ” . If the governor has delegated certain agendas of the indirect federal administration incumbent on him to other members of the provincial government, he must enforce federal instructions against them as well and must "monitor their implementation" (Art. 103 Para. 2 and 3 B-VG).

In 1922, the City of Vienna established under Mayor and Governor Jacob Reumann the Central Cemetery , the fire hall Simmering . As cremation was rejected by conservative circles at the time, Minister of Social Affairs Richard Schmitz ( Federal Government Seipel I ; Federal Chancellor Ignaz Seipel was a priest) instructed the Governor of Vienna not to open the crematorium one day before the planned opening. Reumann opened the fire hall anyway because he thought the minister was not responsible. The Constitutional Court (VfGH), chaired by President Paul Vittorelli , recognized by the federal government in the form of a ministerial indictment, recognized that Reumann had been in an excusable legal error and acquitted him of the indictment. The crematorium then remained in operation.

A prominent recent example of the consequences of not following an instruction was Wilfried Haslauer senior , who was found guilty by the Constitutional Court in 1985 with a ruling. Like the Governor of Vienna Jakob Reumann before him in 1922 (see above), the Governor of Salzburg, Haslauer, had ignored an instruction from the Minister of Social Affairs.

Freedom of instruction

In view of the fact that the state administration is bound by instructions, organs "... which are not bound by any instructions or orders" (example: ORF board of trustees and listener and viewer representation, Broadcasting Act 1966 , Section 6 (1) and (2)), were explicitly declared exempt from instructions Are defined.

As part of the judiciary, judges are not subject to instructions:

"The judges are independent in the exercise of their judicial office."

- Art. 87 para. 1 B-VG

The instruction in criminal law

The term instruction is also used in Austrian criminal law.

"The court can issue instructions (commands and prohibitions) to lawbreakers when they are sentenced to a conditional sentence or conditional release, insofar as this is necessary or expedient to prevent the perpetrator from committing further criminal offenses."

- Federal Chancellery : HELP.gv.at

This has been recorded in Sections 50 and 51 of the Criminal Code since 1974 .

The Justice Minister's right to give instructions to public prosecutors has been controversial for several years. In 2014, an advisory board was recommended to the minister, which is currently involved before the minister issues an instruction.

The instruction in private law

In Austria there are instructions in private law, e.g. B. in the structure of the GmbH : The managing director of a GmbH is bound by the instructions of the general assembly of the shareholders.

literature

Web links

Individual evidence

  1. ↑ Decision of the Appeals Committee as a disciplinary authority on the remonstration, Zl. 134 and 135/15-BK / 07 of November 28, 2007: Decision and legal provisions in the RIS - Legal Information System of the Republic of Austria
  2. ↑ Decision of the Constitutional Court, VfGH E 1/23 of March 27, 1923, in the case “Indictment of the Federal Government against a Governor within the meaning of Article 142, Paragraph 2, lit. d, of the B. V. G [=  Federal Constitutional Law ; today abbreviated as B-VG] - Immediate Federal Administration. ”In: Collection of the findings of the Constitutional Court, No. 206 (= p. 38ff.), 3rd issue, year 1923, Verlag der Österreichische Staatsdruckerei, Vienna 1924 ( digitized in ALEX ) .
  3. ↑ The mayor acquitted! The instruction of Mr. Schmitz illegal !. In:  Arbeiter-Zeitung , March 29, 1923, pp. 1–2 (online at ANNO ). Template: ANNO / Maintenance / aze(With the knowledge of the VfGH in the wording (on p. 2) and social democratic journalistic commentary from the Arbeiter-Zeitung . )
  4. ↑ Felix Czeike (Ed.): Crematorium. In:  Historisches Lexikon Wien . Volume 3, Kremayr & Scheriau, Vienna 1994, ISBN 3-218-00545-0 , p. 606 ( digitized version ).
  5. ↑ Issuing instructions. In: HELP.gv.at, Federal Chancellery (ed.).
  6. ↑ Sections 50 and 51 StGB in Federal Law Gazette No. 60/1974 .
  7. ↑ The Justice Minister's right to issue instructions should remain. In: Der Standard , November 20, 2014.