State of implementation of the Recommendation (2010)12 of the Committee of Ministers on Judges in Austria (Statement from the point of view of the Administrative Court

The following statement only applies to the situation in administrative jurisdiction. It tries to evaluate the situation for all those who are “judges”, understood in the sense of members of a tribunal in the sense of Art. 6 of the Convention in Austria, charged with the control of the administration, in particular :

 the Constitutional Court

 the Administrative Court

 the Asylum Court

 the Independent Fiscal Board

 the Independent Administrative Tribunals in the “Länder”.

It should be noted that from 2014 onwards, the Austrian system will change. The three last mentioned judicial bodies will be the nucleuses of the newly established Administrative resp. Financial Courts of first instance. At the moment, the Constitutional provisions for this change are already adopted, but not those on the level of simple law. So, the following answers treat the actual situation in 2012, if nothing contrary is said.

The statement tries to point out those scopes of the Recommendation where Austria seems not to fulfill its requirements. If there is no comment to a certain article of the Recommendation it can be said that the Austrian situation can be seen as in compliance with this provision.

Article 4 and 7 :

Whereas independence of individual judges is enshrined and guaranteed even on constitutional level in Austria, there are no similar provisions concerning judiciary, or in particular administrative judiciary as a whole. Generally spoken, it can be said that the idea of structural independence of the judiciary is not accepted by the Austrian legislation. Only concerning structural independence of the Constitutional Court and the Administrative Court an exception exists according to the case law of the Constitutional Court. In a decision from 10th of March 2000, G 19/99 it quashed a provision saying that the President of the Administrative Court is submitted to directives of the Federal Chancellor in matters of justice administration (which are not done by judicial bodies) of the Administrative Court. Since this decision, the President of the Administrative Court and (due to an amendment of the respective law) the President of the Constitutional Court are (like ministers) supreme administrative authorities concerning justice administration of their court.

In this decision the Constitutional Court explicitly declared that its ruling does not apply to normal justice and to the independent tribunals. The reform that will enter into force in 2014 starts from the assumption that these principles are not valid for the newly established first instance Courts either. Justice administration of these courts will be done by the competent ministers (for the courts established by the federation) and the governments of the “Länder” (for the courts established by the “Länder”). The persistence of this system can be seen as one of the most regrettable aspects of the reform.

Art. 8 :

Neither a formal procedure nor a competent authority exists for recourse from judges who feel that their independence is threatened. The only legal remedy in such a case that might be used by a judge is to challenge a directive given to him by the President in the administrative lawsuit, that means, he could apply for an administrative decision by the President, saying that the judge is not obliged to follow this directive or that the directive violates his subjective right for independence. If the President decides contrary, the judge could challenge such a decision before the Administrative Court or the Constitutional Court.

Art. 15 :

Judges have to justify their decisions in disciplinary proceedings in some respect ; nonetheless this might be in compliance with Art. 66.

Art. 17 :

The Austrian legislator does not invalidate judicial decisions individually. But it often happens that it adopts retroactive laws that might jeopardize the effect of decisions of the Constitutional Court or, more often of the Administrative Court, not only for other parties, but also for the parties of the individual case after the annulment of an administrative decision by these Courts. It happens rarely that the legislator exempts cases that have already been decided from the retroactive effect of a law. The problems that might arise from this situation can be seen f.e. in the decision of the Administrative Court from 21st of December 2011, 2010/12/0138. A (rare) positive example concerning exemptions of individual decisions that had already been taken from the retroactive effect of a (constitutional) law can be seen in (Federal law Gazette- BGBl. I Nr. 30/2000, paragraph 23b of the Finanzausgleichsgesetz).

Another problem might be the possibility for the ombudsmen, who are seen as organs of the legislative power and who are politically elected by the Parliament, to judge the justification and necessity of procedural steps taken by the court and to interfere indirectly into the course of pending proceedings (in favor of the complaining party).

Art. 148a para 3 and Art. 148c of the Constitution provide in this context :

“Art. 148a. (1) Everyone can lodge complaint with the ombudsman board (Commission for Complaints from the Public) against alleged maladministration by the Federation, including its activity as a holder of private rights, provided that they are affected by such maladministration and in so far as they do not or no longer have recourse to legal remedy. All such complaints must be investigated by the ombudsman board. The complainant shall be informed of the investigation’s outcome and what action, if necessary, has been taken.

(2) The ombudsman board is ex officio entitled to investigate its suspicions of maladministration by the Federation including its activity as a holder of private rights.

(3) Notwithstanding para 1 anyone can complain with the Ombudsman board for alleged delay of a Court to hear a case , if being personally affected. Para 2 applies accordingly.

…

Art. 148c. … The Ombudsman board may in a specific case at the occasion of a certain case request a deadline to cure the delay by a court (Art. 148a para 3) and suggest measures of supervisory control.”

Art. 20 :

There are no “permanent mechanisms” in the understanding of this article existing in Austria.

Art. 24 :

The allocation of cases in the Administrative Court is without any problem as far as the competence of the chamber (5 judges) is concerned. But the President of the Court is competent to nominate the reporting judge. In some aspects this decision not only determines the judge who prepares the decision, but also the composition of the deciding body. This is not the case if the chamber decides in plenary (with 5 judges). But in minor important cases, only three judges decide (the president of the chamber, the senior judge and the reporter). In this situation the composition of the deciding body is influenced by this act of the President. This also true for applications for stay of execution for which the reporting judge is competent as a single judge.

Chapter IV

No judiciary council exists in Austria (which is regrettable, but seems to be in compliance with the Recommendation). Judges’ representations seek for the establishment of such a council for many years. But there is a strong political consensus against it.

Art. 32 and 35

These requirements are not fulfilled for the Administrative Court. Due to the high number of cases it is difficult to take decisions on Supreme Court level and to comply with the requirements of Art. 6 ECHR, as far as the duration of the proceedings is at stake. Hopefully the reform that starts in 2014 (and that will restrict the scope of control done by the Court to important legal questions) will lead to a reduction of the workload. Anyway, this is doubtful, because – on the other hand – the Administrative Court will again become competent for asylum matters which might jeopardize the effect of the reduced control. Nonetheless the budgetary legislator refuses to increase the number of judges. On the other hand some support by more scientific assistants was promised.

Art. 39

Procedural law does not provide for such mechanisms in administrative matters. This is due to the principle of legality that binds the administration and seems to forbid it to accept amicable settlements with applicants in administrative cases.

Art. 46

This article is not at all implemented in Austria. In the Austrian system it is always the administration that takes the decision upon the nomination of judges (in the Federation : President of the Republic on proposal of the federal government ; in the Länder : Government of the Land).

Art. 47

This article contains rulings for systems like the Austrian that do not comply with the principles of Art. 46. These rules are fulfilled for the members of the administrative court (except President and Vice-President), due to the fact that the government is bound to a proposal of the plenary assembly of the court that contains three members. It only can propose one of the three to the President of the Federation and usually proposes the candidate that has been ranked on the first place by the Court. But these requirements are not met for all existing tribunals.

After the reform it will be fulfilled for most of the administrative judges (there will be made proposals from the newly established first instance courts, even though they are not binding for the administration ; we shall monitor whether the administration will follow them in practice or not ; exceptions, see below).

The biggest problem in this context is that there are and will be not even proposals from judicial bodies for the highest positions in administrative justice, namely :

 concerning all judges of the Constitutional Court

 Presidents and Vice-Presidents of the Supreme Administrative Court

 Presidents and Vice-Presidents of the Administrative Courts.

In the Austrian political system there is a big consensus that the decisions concerning nominations in these positions should be taken exclusively on political level without any influence of the judiciary.

Art. 49 and 52

The provisions for judicial independence of the Austrian Constitution that allow pensioning of judges against their will in the case of reforms of the judicial system seem to be in contradiction with the limitations of Art. 52 (only new appointments or moves are allowed).

Here is the text of Article 88 para 2 of the Constitution :
„(2) Otherwise judges may be removed from office or transferred against their will or superannuated only in the cases and ways prescribed by law and by reason of a formal judicial decision. These provisions do not however apply to transfers and retirements which become necessary through changes in the organization of the courts. In such a case the law will lay down within what period judges can without the formalities otherwise prescribed be transferred and superannuated.“

Art. 54
No legal provisions in the sense of the last sentence of this article are existing in Austria.

Art. 56
No such in service training exists at the Supreme Administrative Court. Budgetary restrictions are preventing to establish such training.

Art. 57
No such authority exists.

Art. 64
See Article Art. 39.

Art. 74
No such body exists.