Austria

   

Quality of Democracy

#19
Key Findings
With free, fair elections, but some concerns with regard to media structure and discrimination, Austria falls into the middle ranks with regard to quality of democracy (rank 19). Its score on this measure is unchanged relative to 2014.

Voting rights are well developed, and civil rights and political liberties are generally well protected. Efforts to rein in political-party campaign spending have been undermined by loopholes in transparency laws. Presidential candidates, deemed to be individuals, are exempted from party-financing laws.

Some discrimination against women and minorities is evident, and police forces sometimes use violence in interactions with non-citizens. The growing migrant minority’s inability to participate politically is also seen as a kind of discrimination. Right-wing populist parties have increasingly instrumentalized social and economic anxieties, blaming migrants and refugees for negative developments.

The broadcast- and print-media sectors are highly concentrated. A major recent bank collapse exposed links between the financial and political sectors, leading to some prosecutions.

Electoral Processes

#26

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
9
The Austrian constitution and the laws based on the constitution are consonant with the framework of liberal democracy. They provide the conditions for fair, competitive, and free elections. Parties based on the ideology of National Socialism are excluded from participation, but there has never been an attempt to exclude other parties considered to be outside the accepted mainstream of democracy (such as the Communist Party). Persons younger than 16 years of age cannot vote or stand for office.

There is ongoing debate on how best to handle the system of proportional representation that is enshrined in the Austrian constitution. The system contains a 4% electoral threshold; parties must receive at least this share of the national vote in order to gain a parliament seat, a policy ostensibly designed to minimize the deconcentrating tendency of proportional representation systems. Nevertheless, critics of the system argue that proportional representation as implemented in Austria prevents clear majorities, thus making it difficult to obtain a direct mandate to govern from the voters. Coalitions are a necessity. A system based on single-member constituencies would increase the possibility that single-party governments could be elected, but at the cost of limiting smaller parties’ chances for survival. Thus, though the current system is criticized for undermining the efficiency of government, it is considered to be more democratic than the alternatives.

The elections of a new federal president in 2016 has inspired a heated debate about technicalities of the electoral process. The results of the second round of the presidential elections was declared illegal by the Constitutional Court due to some irregularities and then postponed again because some absentee ballots were not properly sealed. But this did not imply that the procedure was viewed as a failure.

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
7
During electoral campaigns, all parties with parliamentary representation have the right to participate in non-biased debates hosted on the public broadcasting system. This can be seen as an obstacle to new parties, which are not covered by this guarantee.

There is no such rule for the private media, either print or electronic. While political parties today rarely own media organizations outright, print-media organizations more or less openly tend to favor specific parties or their associated political positions.

Political parties have what is, in principle, an unlimited ability to take out print advertisements, as long as the source of the advertisement is openly declared. This gives established parties with better access to funding (especially parties in government) some advantage.

However, the access to present a party’s perspectives depends on its financial capacity. Despite rules, recently implemented to guarantee some balance, it become publicly known that some parties have significantly overspent during the electoral campaign of 2013 and therefore clearly violated the rules. Moreover, in 2016, during the electoral presidential campaign, the two candidates for the final (second) round were unable to reach a consensus on how to control campaign spending.

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
9
Voter registration and voting rights are well protected. Registration is a simple process, taking place simultaneously with the registration of a residence. Citizens must be at least 16 to vote. The country has made efforts to allow non-resident citizens to vote from overseas.

The relative difficulty in obtaining citizenship, and thus voting rights, represents a more problematic aspect of the political culture. According to some mainstream interpretations of democracy (e.g., following Robert Dahl), all legal residents should have the right to vote and therefore the right to citizenship. However, Austria’s system does not provide most long-term residents with a simple means of obtaining naturalization and voting rights.

The presidential elections of 2016 led to a debate about the handling of absentee voting. The accommodating means of handling the absentee voting creates a discussion about mixing politics and legal principles: The permissive access to absentee voting is in the interest of specific social segments and therefore of specific parties (like the Greens) - and against the interest of others (like the FPÖ). This could lead, in the long run, to a conflict of interests, disguised as a conflict of principles. Nevertheless, at the moment it doesn’t seem that any significant change will take place.

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
6
Political-party financing in Austria has been characterized by unsuccessful attempts to limit the ability of parties to raise and spend money. Austrian electoral campaigns are among the most expensive (on a per-capita basis) in the democratic world, thanks to the almost uncontrolled flow of money to the parties. These large flows of money create dependencies, in the sense that parties tend to follow the interests of their contributor groups, institutions and persons.

However, some improvements have been made in recent years, for instance by making it necessary to register the sums given to a party. An amendment to the Austrian act on parties made it mandatory for parties to declare the sources of their income, beginning in 2012. Additionally, parties are required to keep records of their accounts and publish a yearly financial report. This annual report must include a list of donations received. Therefore, and for the first time, policymakers have sought to render the flow of private money to parties transparent. The yearly reports are subject to oversight by the Austrian Court of Audit, and violations of the law can be subject to penalties of up to €100,000. The fact that some parties violated set limits during the 2013 campaign has prompted a new debate regarding stronger oversight and sanctions.

This regulatory structure does have loopholes, however, as parties do not need to identify the sources of donations below the amount of €3,500. As long as parties can spend money without oversight or limitations, it can be assumed that they will find ways to raise money outside the system of official scrutiny.

A system of public political-party financing on the federal, state and municipal level was established in the 1970s. This can be seen as moderating the dependencies established by private funding, but has not significantly changed these private flows.

The presidential elections of 2016 demonstrated that the regulations concerning party financing do not include presidential elections. Presidential elections are officially seen as electoral contests between persons and not political parties. But as the candidates are usually nominated and backed by parties, exempting presidential elections from an overall system of campaign finance regulation must be seen as inconsistent.

Citations:
Hubert Sickinger, “Politikfinanzierung in Österreich”. Vienna 2009 (Czernin)

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
5
Plebiscites (referendums) are obligatory and binding when the matter affects significant constitutional issues. This has been the case only once, in 1994, when Austria had to ratify the treaty of accession to the European Union. Plebiscites are possible (and binding) if a majority of the National Council (the lower house of the two-chamber parliament) votes to delegate the final decision on a proposed law to the voters. This also happened only once, in 1978, when the future of nuclear power in Austria was decided by referendum. There is also the possibility of a non-binding consultational referendum. Thus, in 2013, a non-binding referendum was organized concerning the military draft system. The governing parties and parliament treated the decision – in favor of keeping the existing universal draft – as binding. The small number of direct-democratic decisions made in the past are the consequence of a constitutional obstacle: Except for the case of the obligatory plebiscites, it is the ruling majority that ultimately allows referendums to take place, and therefore controls access to direct-democratic decision-making.

Citizen initiatives are proposals backed by a qualified minority of voters (a minimum of 100,000 individuals, or one-sixth of the voters in at least three of the country’s nine provinces). These initiatives are not binding for parliament, which has only the obligation to debate the proposals. Most citizen initiatives have not succeeded in becoming law.

Reformers have argued that the use of plebiscites should be expanded, possibly by allowing citizen initiatives with very strong support (e.g., backed at least by 300,000 voters) to go to the ballot in the form of a referendum in cases of parliament’s refusal to make the proposal law. This seemingly endless reform will continue into the future and reflects the erosion of trust in the established party system.

Access to Information

#23

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/ market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
7
Media freedom is guaranteed by the constitution. There is no censorship in Austria, and new electronic or print-media organizations can be freely established. Limits to the freedom of expression in the media are defined by law, and the courts ensure that these limits are enforced.

The federal and regional governments use public money to promote specific policies in various print publications. This tradition has been criticized by the Austrian Court of Audit and by media organizations, but has not stopped. Due to the pluralistic structure of Austria’s political system (no single party has ever simultaneously controlled the federal government and all state governments), the impact of this practice is typically diffused, but this financial relationship necessarily reduces the credibility and the freedom of the media. A mutual dependence has developed, in which political parties try to influence the media and media try to influence political parties. A clear separation needs to be established, in which media organizations do less to start or support political campaigns or otherwise put pressure on politicians, and political parties do not use means such as financial incentives to have an impact within the media.

The Austrian Public Broadcasting (Österreichischer Rundfunk Fernsehen, ORF) company dominates both the TV and radio markets. The ORF is independent by law and is required to submit comprehensive reports on its operations. All parties in parliament are represented on the ORF’s oversight body (the Stiftungsrat). A number of (real or imagined) cases of political influence over the ORF by various political parties have been alleged. However, the ORF in general fulfills its mandate quite well, particularly in international comparison.

There is an imbalance between the ORF and TV and radio stations beyond the ORF. The ORF is financed mainly by public fees, which everyone who owns a TV or radio device has to pay. Other TV and radio broadcasters have to finance their structures and activities through advertisements. The ORF and the government justify this imbalance by referring to the ORF’s specific educational task, which private companies do not have to fulfill.

The impact of social media has not yet been fully analyzed in Austria. It can be seen as a counterweight to the highly concentrated traditional media market, in which a single daily newspaper (Die Krone) is read by more than one-third of newspaper consumers, and in which the ORF is still the dominant force in TV and radio. Social media use is highly skewed toward the younger generations, but are also responsible for a new means of access to information.

One particular aspect of new social media has been under discussion recently: how to deal with hate speech. Anonymous Neo-Nazi online postings, which violate the law and have been more or less under control in the traditional media, have widened the discourse.

Given Austria’s small size and its shared language with Germany, the country is particularly dependent on German media (print and electronic), which is not subject to oversight by Austrian policymakers.

Citations:
Ingrid Thurnher: “Politik und Medien - eine unheilige Allianz?” In: Andreas Khol et al. (eds.): “Österreichisches Jahrbuch für Politik 2011.” Vienna 2012, pp. 339 - 348.

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
5
The Austrian media system features a distinct lack of pluralism in both the broadcast- and print-media sectors. The TV and radio markets are still dominated by the public Austrian Broadcasting Corporation (ORF). By law, the ORF is required to follow a policy of internal pluralism, which in practice translates primarily into a reflection of the various political parties’ current strength in parliament. Thus, interests and movements not yet established in the political system may occasionally suffer a disadvantage.

The print-media sector is highly concentrated, with a single daily paper (Die Krone) accounting for a 40% market share on a circulation basis. This paper carries political weight insofar as politicians of various parties seek to please its editor and staff, a situation that erodes the fair and open democratic competition of ideas and interests. Print-media organization are no longer owned by parties or organized interest groups, and the concentration can be seen as a consequence of market forces and the small size of the Austrian market.

Regional monopolies also pose a threat to media pluralism. In some federal states, a single daily paper dominates the market. Once again, the small size of the Austrian media market is largely responsible.

Despite these problematic aspects to the market from the point of view of media pluralism, ORF fulfills its mandate of providing independent and comprehensive coverage well, and is therefore able to serve as a balance to pluralistic shortcomings.

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
8
Citizens can access government information, but certain restrictions apply. The principle of privacy protection is sometimes used as a justification – at times, only a pretext – to prevent academic research and other inquiries. The Austrian bureaucracy still appears tempted to consider access to information a privilege rather than a right. However, despite these practical shortcomings, the principle of transparency is enshrined in the Austrian constitution, and generally enables access to information by citizens.

Indeed, the overall trend is favorable, with practices of information access becoming progressively more liberal. For example, the police and courts have now established structures (offices and officers in charge) responsible for information. This seems in part to be a result of generational change within the bureaucracy.

Despite ongoing discussions, Austria has not yet adopted an encompassing Freedom of Information Act, of which all citizens are informed and able to use. There are too many caveats in the law (defined as state-relevant “secrets”) to protect government acts from public access. A draft for an Austrian Information Act is currently being discussed in parliament.

Increasingly, the impact of controlled information in the form of government paid advertisements in the media has become an issue. As these advertisements generate significant income for some media (especially newspapers), this should not only be seen as information directed by the government at citizens, but also as a means of making media dependent on the government.

Civil Rights and Political Liberties

#20

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
7
The rule of law as well as basic civil rights are guaranteed in Austria, at least for Austrian citizens. This is less so the case for non-citizens (and especially non-EU-citizens). Austrian laws concerning naturalization are extremely strict, which leaves hundreds of thousands of persons living legally in Austria excluded from political rights. Recent cases documented by NGOs have shown members of the Austrian police to have used cruelty and violence in interactions with non-citizens (especially migrants without a residence permit).

Right-wing populist parties, especially the Freedom Party of Austria (FPÖ), instrumentalize social and economic anxieties among the broader population to blame migrants and refugees for any kind of negative development, ranging from crime to unemployment. Mainstream political parties have sometimes been reluctant to insist that the guarantees provided by human-rights declarations signed by Austria (such as the Council of Europe’s Declaration of Human Rights) cover refugees and migrants, and must be implemented without reservation.

The European Court of Human Rights has been especially critical of the way Austrian courts implement the freedom of speech. There is a tendency within Austria’s administration and judiciary to define this freedom in a more restrictive way than the court believes is correct.

With respect to religious freedom, all major denominations enjoy the status of officially recognized religious communities. This status enables access to the public-education system in form of religious instruction in schools, paid for by the government; a privileged way of “taxing” members of religious communities (through the church tax, or Kirchensteuer); and other entitlements. As a consequence of these various financial links and other relationships, there is no clear separation between religious denominations and the state. However, the religious denominations (especially the still-dominant Roman Catholic Church) have resisted identification with any specific political party.

Two groups of Austrians are disadvantaged by this system of officially recognized denominations: members of the small denominations that lack official recognition, and atheists (or agnostics) who may feel that religion as such is privileged in Austria compared with non-religion.

Access to the courts in Austria has become increasingly difficult as a result of legal fees that have reached exorbitantly high levels, particularly in the civil branch of the judiciary system.

While the state does in some cases provide financial assistance, in many cases, the fees required for access to the Austrian judicial system constrain or altogether block access for people with limited means. In practice, this has fed the growth of a legal-insurance sector. People who cannot afford to pay for legal-insurance policies find the high court fees a significant obstacle to defending their rights in the Austrian court system.

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
9
As human rights, civil and political liberties are guaranteed effectively by the Austrian constitution. The Austrian standard of recognition accorded to such liberties and rights is very high. For religious liberties, Austria has developed a special system of official recognition. Officially recognized religious denominations, which include all major Christian denominations, Islam, Judaism and Buddhism, enjoy specific privileges such as the right to provide religious instruction in public schools.

The freedom of speech is sometimes seen as constrained by Austrian courts’ interpretation of libel. The European Court of Human Rights (ECHR) has overturned decisions by Austrian courts in numerous cases, as the Strasbourg court considers the Austrian interpretation as too narrow. The judicial system has in consequence adapted to the rulings of the ECHR.

The only legalized limitation to political freedom concerns any activity linked to National Socialism. As a consequence of Austria’s past, the Austrian system does not allow political activities based on the doctrine of National Socialism, including Holocaust denial. While the principle itself is widely supported, its interpretation in practice sometimes leads to controversy.

The existence of an apparently very small in number but internationally well-connected network of radical Islamists represents a new challenge to political liberties in Austria. Some Austrian citizens have been recruited to fight for the “Islamic State” militia, for example. This has resulted in a debate about the limits of political liberties, but has not yet led to any significant legal action being taken.

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
6
Austrian law bars discrimination based on gender, religion, race, age or sexual orientation. In practice, despite the institutionalization of an anti-discrimination policy, discrimination is evident within Austrian society. This includes indirect discrimination directed against women, who are still underrepresented especially at the level of management in the business sector; discrimination against dark-skinned persons, in some cases by the police; and gays and lesbians, whose position has improved, but still features structural disadvantages. Particularly with reference to sexual orientation, Austrian policies retain a rather conservative orientation, limiting the legal institution of marriage to heterosexual partnerships. Although legal substitutes exist for gays and lesbians, the bureaucratic reality makes life for heterosexual partners considerably easier.

From the viewpoint of an inclusive democracy, the most significant form of discrimination is currently the increasing number of people living legally in Austria but excluded from political participation by the obstacles faced when applying for Austrian citizenship. Dual citizenship in Austria is legally possible, but the dominant policy is to make it as difficult as possible.

Rule of Law

#6

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
8
The rule of law in Austria, defined by the independence of the judiciary and by the legal limits that political authorities must respect, is well established in the constitution as well as in the country’s mainstream political understanding. The three high courts – the Constitutional Court (Verfassungsgerichtshof), which deals with all matters concerning the constitution and constitutional rights; the Administrative Court (Verwaltungsgerichtshof), the final authority in administrative matters; and the Supreme Court (Oberster Gerichtshof), the highest instance within the four-tier judicial system concerning disputes in civil or criminal law – all have good reputations. Judicial decisions, which are based solely on the interpretation of existing law, can in principle be seen predictable.

The role of public prosecutors (Staatsanwälte), who are subordinate to the minister of justice, has raised some controversy. The main argument in favor of this dependency is that the minister of justice is accountable to parliament, and therefore under public control. The argument to the contrary is that public prosecutors’ bureaucratic position opens the door to political influence. To counter this possibility, a new branch of prosecutors dedicated to combating political corruption has been established, which is partially independent from the Ministry of Justice. However, this independence is limited only to certain aspects of their activities, leading some to argue that the possibility of political influence remains.

The rule of law also requires that government actions be self-binding and predictable. And indeed, there is broad acceptance in Austria that all government institutions must respect the legal norms passed by parliament and monitored by the courts.

The decision of the Austrian Constitutional Court to cancel the second round of the presidential election in the summer of 2016 is a clear example of how the rule of law is accepted. The decision has been widely criticized but nevertheless absolutely accepted.

On the other hand, laws are becoming so complex that even renowned experts struggle to understand them. This relates in particular to issues of immigration and asylum (Fremdenrecht).

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
8
Austrian laws can be reviewed by the Constitutional Court on the basis of their conformity with the constitution’s basic principles. According to EU norms, European law is considered to be superior to Austrian law. This limits the sovereignty of Austrian law.

Within the Austrian legal system, all government or administrative decisions must be based on a specific law, and laws in turn must be based on the constitution. This is seen as a guarantee for the predictability of the administration. The three high courts (Constitutional Court, Administrative Court, Supreme Court) are seen as efficient watchdogs of this legality. Regional administrative courts have recently been established in each of the nine federal states (Bundesländer), which has strengthened the judicial review system.

The country’s administrative courts effectively monitor the activities of the Austrian administration. Civil rights are guaranteed by Austrian civil courts. Access to Austrian civil courts requires the payment of comparatively high fees, creating some bias toward the wealthier portions of the population. Notwithstanding the generally high standards of the Austrian judicial system, litigation proceedings take a rather long time (an average of 135 days for the first instance) with many cases ultimately being settled through compromises between the parties rather than by judicial ruling. Expert opinions play a very substantial role in civil litigations, broadening the perceived income bias, since such opinions can be very costly to obtain. The rationality and professionalism of proceedings very much depend on the judges in charge, as many judges, especially in first-instance courts, lack the necessary training to meet the standards expected of a modern judicial system.

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
9
Judges are appointed by the president, who is bound by the recommendations of the federal minister of justice. This minister in turn is bound by the recommendations of panels consisting of justices. This usually is seen as a sufficient guarantee to prevent direct government influence on the appointment process.

The situation is different for the Constitutional Court and the Administrative Court. In these two cases, the president makes appointments following recommendations by the federal government or one of the two houses of parliament. Nonetheless, members of the Constitutional Court must be completely independent from political parties (under Art. 147/4). They can neither represent a political party in parliament nor be an official of a political party. In addition to this rule, the constitution allows only highly skilled persons who have pursued a career in specific legal professions to be appointed to this court. This is seen as guaranteeing a balanced and professional appointment procedure.

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
8
Corruption has become a major topic of discussion in Austria. In recent years, scandals concerning prominent politicians (including former cabinet members) and industries dependent on government decisions have been exposed in increasing numbers, and thoroughly investigated. In consequence, a special branch of the public prosecutor’s office dealing especially with corruption (Korruptionsstaatsanwaltschaft) has been established. This office is seen as a significant improvement on the earlier system, although it remains far from perfect with respect to political independence. The more proactive approach taken by government, represented for example in the activities of the Korruptionsstaaatsanwaltschaft, have yielded positive results.

As a consequence of the bankruptcy of a major bank (Alpen-Adria Hypo), the links between politics and business are openly discussed more than ever. Parliamentary committees at the state and federal levels have been able to bring some light to the affair and courts have successfully prosecuted highly connected persons (including politicians).
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