!!!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.

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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).

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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).

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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.

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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.

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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.

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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 
16%%sup th/%  century rules of the court governed the enforcement of 
law, supervised, at the same time, by the provincial authorities. 
During the 18%%sup th/%  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
R. Walter, Verfassung und Gerichtsbarkeit, 1960; R. 
Holzhammer, Oesterreichisches Insolvenzrecht, %%sup 5/%1996; 
H. W. Fasching, Lehrbuch des oesterreichischen 
Zivilprozessrechts, %%sup 2/%1990; R. Walter and H. Mayer, Grundriss 
des oesterreichischen Bundesverfassungsrechts, %%sup 8/%1996; H. 
Rechberger and D. Simotta, Exekutionsverfahren, %%sup 2/%1992; W. 
Platzgummer, Grundzuege des oesterreichischen Strafverfahrens, 
%%sup 8/%1997; C. Bertel, Grundriss des oesterreichischen 
Strafprozessrechts, %%sup 6/%2000; H. Rechberger and D. Simotta, 
Grundriss des oesterreichischen Zivilprozessrechts 
(Erkenntnisverfahren), %%sup 5/%2000; R. Holzhammer, Oesterreichisches 
Zwangsvollstreckungsrecht, %%sup 4/%1994; R. Holzhammer aand M. Roth, 
Konkursrecht, 1999.


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