Gerichtsbarkeit#

Jurisdiction and Administration of Justice, law-administering function of Judges (as opposed to judicial administration). It is based on sovereign power and thus confined to Austrian national territory (principle of territoriality). All judicial power emanates from the Federal government (art. 82 of the Austrian Constitution, Bundesverfassungsgesetz); decisions on the merits of a cause are thus made "in the name of the Republic". No one may be removed from the jurisdiction of his/her lawful judge (cf. art. 83 of the Austrian Constitution, Bundesverfassungsgesetz, art. 6 of the European Convention on Human Rights); accordingly only members of the judiciary admitted or provided by law may pass legally valid judgements.

A difference is made between the administration of justice in the field of public law ( Constitutional Court and Administrative Court) on the one hand, and in civil and criminal matters on the other (courts of justice). The jurisdiction of the courts of public law is embodied in the Constitution (Bundesverfassungsgesetz, art. 129ff.) and in special Federal laws (Verwaltungsgerichtshofgesetz and Verfassungsgerichtshofsgesetz). The courts of public law have to decide on request (appeal), for instance, on the lawfulness (administrative court) or constitutionality (constitutional court) of administrative acts which are no longer contestable; another duty incumbent on the highest constitutional court is judicial review (the power to review statutes or administrative acts and to determine their constitutionality); this duty is exclusively reserved to the highest constitutional court (art. 89, 133 of the Constitution, Bundesverfassungsgesetz).

The courts are separated from the administrative authorities at all levels (art. 94 of the Constitution, Bundesverfassungsgesetz). The people has to participate in judicial decisions (lay judges ( "Schoeffen" and jurors "Geschworene") in criminal trial proceedings, lay judges ( "Laienrichter") in civil litigation. Highest instance is the Supreme Court of Justice (art. 92 of the Constitution, Bundesverfassungsgesetz), the decisions of which are not subject to appeal. Court jurisdiction (Code of Criminal Procedure, Code of Civil Procedure) and court organisation (law governing court organisation, regulation governing the rules of procedure of trial and appellate courts) are provided by Federal law and regulations. Courts of first instance are district (Bezirksgerichte) or provincial courts (Landesgerichte), depending on the subject matter; courts of second instance are provincial (Landesgerichte) or higher provincial courts (Oberlandesgerichte), depending on the court of first instance. In 1997 there were 187 district courts, 18 provincial courts and 4 higher provincial courts (ordinary courts) with distinct local jurisdiction (= "Sprengel", district), together covering the entire national territory on every organisational level. At these courts, according to the subject matter and instance, jurisdiction is exercised by judges sitting alone, panels of judges or with the help of lay people as in jury trials for capital crimes and certain political offences ( Geschworenengericht) or in Schoeffengerichte, i.e. courts consisting of one judge and two lay judges; in civil proceedings jurisdiction is exercised by judges sitting alone (almost always in original jurisdiction), panels of judges or "Kausalsenate" (assistance of lay judges in commercial, labour and social cases). Furthermore, in civil proceedings certain legal affairs of original jurisdiction, which are to be specified in detail, can be transferred to persons who are not judges ( Rechtspfleger) (most important: summary proceedings for order to pay debts, i.e. financial disputes up to ATS 100,000).

The right to be tried by the judge having jurisdiction makes necessary the prior assignment of functions to the decision-taking bodies in a court (e.g. according to alphabetical order). On grounds of bias judges or other members of the judiciary may be excluded or rejected. All trials before the deciding court are open and subject to the principle of oral presentation, exceptions being governed by law. Official language in court is German and, in specifically designated courts, also Slovene and Croat.

In criminal cases, the decisions over crimes listed in the Penal Code (e.g. murder, battery, theft, fraud, embezzlement), or governed by special statutes (e.g. use of drugs, financial crimes) or the Military Criminal Code, and their enforcement lie exclusively with the ordinary courts. Some professional representative bodies have disciplinary jurisdiction, which does not mean the exclusion of the Federal jurisdiction, but in some cases allows those bodies to impose additional penalties concerning professional practice (e.g. Medical Association, Bar Associations, Chamber of Notaries). The Death Penalty was abolished in 1950, as was the function of military courts in times of peace. Jurisdiction and procedure of the criminal courts are governed by the Code of Criminal Procedure (1873) and the Prison Act (1969). The Constitution provides minimum standards for procedure (e.g. right to be heard; right of protection of personal freedom, 1988). Special provisions have been laid down for young offenders as well as military criminal proceedings and criminal proceedings in regard to financial matters.

In many civil cases (except e.g. matrimonial proceedings) and on the condition of mutual agreement a decision can be made by a (non-governmental) Court of Arbitration, but the enforcement of such awards always rests with the ordinary courts. Further legally recognised special courts are: Restrictive practices court and Restrictive practices court of appeal, arbitration court of the stock exchange, supreme patent and trademark court. Civil cases are general civil legal disputes (e.g. disputes resulting from sales contracts, actions for damages, disputes between landlord and tenant, matrimonial cases), labour and social cases (e.g. claim to remuneration, protest against dismissal), commercial disputes (claims resulting from commercial transactions, disputes related to product liability and unfair competition) as well as extra-judicial affairs (e.g. probate proceedings, matters of guardianship and adoption, appointment of creditors' trustees). Judgements are enforced by Execution or Bankruptcy, Insolvency Settlement. Jurisdiction and procedure are governed by the "Jurisdiktionsnorm" (standard of jurisdiction), the Code of Civil Procedure (both 1895), the Law governing Extra-judicial Matters (1854), the Execution Act (1896), Bankruptcy Act and the Composition Act (both 1914); special rules of procedure exist for labour and social cases and for matrimonial and descent cases.

In the Middle Ages judicial power was part of the exercise of sovereign power; in Austria the Prince was invested with judicial power by the Privilegium minus of 1156. Later judicial power was transferred to the rulers, who exercised it until 1848. From the 16th century rules of the court governed the enforcement of law, supervised, at the same time, by the provincial authorities. During the 18th century state influence on the courts increased, in 1850, after the manorial system was abandoned, state courts (district courts, county courts, provincial courts and higher provincial courts) were established. In 1968 the administration of justice was separated from the administrative authorities even at the lowest instance. Owing to Austria´s membership in the Council of Europe since 1956 and in the European Union since 1995 Austria also falls under the jurisdiction of the European Court of Human Rights (EGMR) and the European Court of Justice (ECJ).

Literature#