Introduction
Basic Facts about the Country
Basic Facts about the Judiciary
Judicial Governance
Distribution of Responsibility
Challenges
Rankings and Surveys
Expert Recommendations
Compliance with European Courts' Judgements
Austria
Basic Facts about the Country
Membership of the European Union
1 January 1995
Membership of the Council of Europe
16 April 1956
Entry into force of the European Convention on Human Rights
3 September 1958
Basic Facts about the Judiciary
Budget per inhabitant
€ (2020 data)
Overall number of judges
Number of professional judges per 100,000 inhabitants
27.98
Tiers in the ordinary court system
4
District Courts
115
Regional Courts
20
Higher Regional Courts
4
Supreme Court
1
First Instance Administrative Courts
11
Supreme Administrative Court
1
Constitutional Court
YES
Composed of 14 constitutional judges: a president, a vice-president, and 12 further members.
There are six substitute members, to be called upon if regular members are absent due to illness or bias. The president appoints members and substitutes.
The government has the right to nominate the president and vice-president.
The government further nominates six constitutional judges and three substitute members. The remaining six members and three substitutes are nominated partly by the National Council and partly by the Federal Council.
Constitutional Court members remain in position until the end of the year in which they reach the age of 70. Earlier removal from office is only possible by a decision of the Court itself.
Reviews the constitutionality of federal and regional laws, and the legality of decrees.
Public Prosecutor
The Prosecution Service is a judicial authority, set up in a hierarchical structure under the supervision of the minister of justice, who can issue both general instructions and instructions in individual cases
Judicial Governance
Type of governance system
Staff Panels at courts
- Staff panels exist at regional and higher regional courts, the Supreme Court, and administrative courts, and the staff panels at the regional courts are also responsible for proposals for district courts.
- Staff panels include the president, vice-president, and three to five other members of the court, who are elected by their peers.
- Staff panels are independent and are not in hierarchical subordination to the minister of justice.
A Staff Panel (Supreme Court)
- Includes five elected judge members of the external senate of the Supreme Court, and three elected members of the staff panel of the Supreme Court. The external senate consists of two ex officio members (the president and vice-president) and five judges elected by their peers
Court Presidents
- Presidents, when they act outside staff panels, are supervised by the Ministry
- There is extra remuneration for court presidents, which is small for the first level courts, whilst the presidents of the second level courts receive greater remuneration than the ordinary judges of the third level. The presidents of the Higher Courts of Appeal and the Supreme Court receive high special remuneration.
Distribution of Responsibility
- Ensures the independence of the judiciary
- Creates framework conditions for judges, prosecutors, qualified judicial officers, and all other employees of the judiciary to perform their duties. The personnel and material requirements for this are guaranteed, in compliance with the principles of legality, expediency, efficiency, and economy.
- Appoints candidate judges based on the proposal of the external senates at the Higher Regional Courts.
- Appoints judges based on the non-binding advice of the staff panels, composed of judges or plenary assemblies of a court, which draw up a ranked list of three candidates for each post.
- Responsible for giving an opinion on the appointment of judges to certain positions, and for the distribution of cases and the evaluation of judges.
- Proposes the candidates for the posts of Supreme Court president and vice-president, who are then appointed by the president of the republic.
- Some managerial tasks are in court presidents’ hands, while others are entrusted to staff panels. The presidents are part of a hierarchical system, which runs from the minister of justice, via presidents of the Higher Courts of Appeal, via presidents of the Courts of Appeal, down to the presidents of district courts.
Challenges
Danger of politicisation/lack of guarantees of prosecutorial independence
Austrian prosecution services are hierarchically subordinated to the Ministry of Justice. In its 2022 Rule of Law Report, the European Commission recommended that Austria continue reform to establish an independent Federal Prosecution Office and ensure the independent operation of the specialised anti-corruption prosecution. In its 2023 Report, the Commission expressed concern about the lack of progress in implementing these recommended measures. The expert group, composed of the representatives of the judiciary, recommended the appointment of the prosecutor general on the proposal of a special staff panel similar to the one used for judicial appointments. No political agreement has been reached, however, on the key aspects of the reform. Subjects of debate include parliamentary control over the prosecutor general. According to the European Commission, the regular reporting by the prosecutor general to the Parliament should not extend to an obligation to report on individual cases.
The Council of Europe’s Group of States against Corruption (GRECO) recommended that Austria bring the regulations related to prosecutors close to those related to judges, including as regards appointments, emphasising that the executive’s role should be formal, and should not extend to the choice of candidates. This recommendation has so far remained unimplemented.
Political (including parliamentary) appointments of (Supreme Court) judges
Political involvement with high-level judicial appointments and limited engagement of judges in these processes have emerged as problematic. In January 2022, it was revealed that the parties in government secretly divided top-level positions, including those in the judiciary, among themselves. This revelation led to the reform of the procedure for appointing the Supreme Court president and vice-president, which the European Commission approved of in its 2023 Rule of Law Report. While previously the president made these appointments upon the proposal of the Government or the minister of justice, under the new law, which entered into force on 1 January 2023, staff panels make such proposals. This newly created staff panel includes the five elected (judge) members of the external senate of the Supreme Court, and three elected members of the staff panel of the Supreme Court. The Supreme Court has welcomed this reform. While the increased role of staff panels was also in line with the recommendations from GRECO, it expressed concern that the proposals of staff panels remained consultative, and that there was a risk they would not be followed by the appointing authority.
Austria did, however, fail to change the procedure for appointing administrative court presidents, as recommended by the European Commission. For the Commission, the problem lied in the lack of judicial engagement in the process, especially given court presidents’ broad powers and the fact that they did not have to be selected from among already appointed judges. The authorities informed the Commission that they did not plan any reform in this respect.
Austria did change its legislation governing the appointment of candidate judges. Under the new legal regime, which the European Commission approved of, the decision-making power to make proposals for such appointments has been transferred from the presidents of the Higher Regional Courts to the respective external senates at the Higher Regional Courts. The members of the external senate include the president and the most senior vice-president, as ex officio members, and three elected members of the judiciary. This set-up should help prevent abuse by the minister of justice, who is still in charge of appointment decisions. The minister of justice also appoints judges from among candidate judges who have completed their traineeship, based on non-binding proposals (a ranked list of three candidates for each post) by staff panels composed of judges or plenary assemblies of a court. Overall, while judges are involved in the selection process at various stages, their opinion is non-binding, and the minister of justice has the final say.
Barriers for access to courts
Stakeholders continue to raise concerns over the absence of a cap on court fees. Court fees are calculated as a percentage of the value of each case and, in the absence of a cap, fees can be very high in high-value cases. This could affect access to justice. The Ministry of Justice informed the European Commission that, while it has evaluated the matter comprehensively, this issue has not been taken forward for budgetary reasons.
Rankings and Surveys
Expert Recommendations
Overall, concerning the recommendations in the 2022 Rule of Law Report, Austria has (made):
- No further progress on continuing the reform to establish an independent Federal Prosecution Office, taking into account European standards on the independence and autonomy of the prosecution, including to ensure the independent operation of the specialised anti-corruption prosecution
- Fully implemented the recommendation to address the need for involvement of the judiciary in the procedures for appointment of the president and vice-president of the Supreme Court and made no progress on addressing the need for involvement of the judiciary in the procedures for appointment for court presidents of administrative courts taking into account European standards on judicial appointments and the selection of court presidents.
- Fully implemented the recommendation to finalise the legislative revision of the political party financing rules including to empower the Austrian Court of Audit (ACA) to audit political party finances.
On this basis, and considering other developments that took place in the period of reference, it is recommended to Austria to:
- Take forward the reform to establish an independent Federal Prosecution Office, taking into account European standards on the independence and autonomy of the prosecution, including to ensure the independent operation of the specialised anti-corruption prosecution.
- Address the need for involvement of the judiciary in the procedures for appointment of court presidents of administrative courts, taking into account European standards on judicial appointments and the selection of court presidents.
European Commission, Rule of Law Report, 2023
Adopted by GRECO at its 94th Plenary Meeting (Strasbourg, 5-9 June 2023)
Recommendation xi
- 41. GRECO recommended that staff panels be involved more broadly in the selection and career evolution of ordinary and administrative court judges, including the presidents and deputy-presidents, and that the proposals of the panels become binding for the executive body making appointments (recommendation xi). [partly implemented]
Recommendation xii
- GRECO recommended that a system of periodic appraisals be introduced for judges, including the presidents of the courts, and that the results of such appraisals be used in particular for decisions on career progression (recommendation xii). [not implemented].
Recommendations xvii and xviii
- 57. GRECO recommended that the statute of prosecutors be further approximated with the one for judges recommended in the present report, particularly with regard to decisions on appointments and career changes including for the highest functions (the role of the executive should be limited to the formal appointment and should not include the choice of the candidate), as well as with regard to periodic appraisals for all prosecutors and the incompatibility of their function with a political function in the executive or legislature (recommendation xvii). [partly implemented]
Recommendation xix
- 62. GRECO recommended that an annual programme be put in place for the in-service training of judges and prosecutors, including administrative judges and lay judges, which would include integrity-focused elements concerning the rights and obligations of these professionals. [partly implemented]
Compliance with European Courts' Judgements
Court of Justice of the European Union (CJEU)
State Performance
0
European Court of Human Rights (ECtHR)
State Performance
Very good
Implementation record
3
22 %
15
months
Judgements with pending implementation
Selected on relevance to the judiciary / rule of law
Pagitsch GMBH v. Austria
Administrative courts’ refusal to hold oral hearings in social security disputes.
This case concerns a violation of the applicant companies’ right to fair civil proceedings due to the domestic administrative courts’ refusal to hold oral hearings in social security disputes they were involved in between 2010 and 2017 (violation of Article 6 § 1).
The European Court noted that “the disputes, as presented by the applicant companies to the domestic courts, involved not only legal issues, but also questions of fact” (§28). It found a violation holding that “the Federal Administrative Court and the Administrative Court in both cases gave no reason why they considered a hearing to be unnecessary other than stating that such a hearing was not likely to contribute to the clarification of the case” (§31).
Status of Execution:
An action plan was received on 7 January 2022 (currently under assessment).
56387/17,
22-06-2021