Fundamental rights and civil rights and liberties had and still have high status in the Austrian constitution. When the republican constitution was adopted in 1920, the seciton about fundamental rights and civil rights and liberties were inspired to the Basic Law of 1867.

More

Fundamental rights and civil rights and liberties had and still have high status in the Austrian constitution. When the republican constitution was adopted in 1920, the seciton about fundamental rights and civil rights and liberties were inspired to the Basic Law of 1867.

Most of the fundamental rights are granted not only to nationals but also to aliens and stateless persons, and are, therefore, human rights. They include the inviolability of property, personal liberty, the right to a lawful judge, the rights of the householder, privacy of the post, freedom of expression, freedom of the press, freedom of conscience and of worship as well as freedom of knowledge and its teaching.

Austrian constitutional framework is set by the Bundesverfassungsgesetz (B-VG, Federal Constitutional Statute) of 1920 as amended in 1929, which includes the Staatsgrundgesetz (StGG, Basic Law of the State) of 1867, the Treaty of St. Germain of 1919 and the Treaty of Vienna, 1955. Each state member (Land) of the Austrian federation has its own constitution. However, only two of them contain a catalogue of fundamental rights and of those, it is only the constitution of Vorarlberg that expressly mentions equality in a general sense, in an article entitled "aims and principles of governmental action”.

Austria has ratified the UN Convention on the Elimination of All Forms of Racial Discrimination in 1972, but it is not considered to be directly enforceable in Austrian Law (Austria declared a reservation of implementation). In order to implement the Convention Austria passed the mentioned constitutional law consisting in three articles, and the first one prohibits every form of racial discrimination.

The European Convention on Human Rights of 1950 and principles of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), articles 1, 2 and 14, have acquired constitutional rank. Article 7 of the Federal Constitutional Statute (B-VG.art.7) and article 2 of the Basic Law of the State do not expressly mention the criterion of race and guarantee equality before the law to Austrian citizens only, but Article 1 of the Constitutional Law on the implementation of ICERD and Article 14 of the Human Rights Convention as well as the Treaty of St. Germain refer to racial discrimination in particular (TSG.art.63, TSG.art.67,68). The General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) contains a general equal treatment clause stipulating that no natives (Fremde)  enjoy the same civil rights and obligations as the native population (Eingeborene) unless citizenship is explicitly required (ABGB Art 33). Article 879 includes the entitlement of the individual to freedom from discrimination.

Fundamental rights have generally no effect between private parties, but they are assuming an important role in private legal relations. According to decisions of the custody courts concerning the withdrawal or award of care, the religious conviction of a parent cannot generally be put forward as a reason to withdraw or not to award care.

The Verbotgesetz, StGBl (Prohibition Statute), 1945, prohibited the National Socialist German Workers Party and subjected anybody, who still belonged to that party or who acted for it or its aims, to capital punishment, which was abolished in 1968. The amending so called Nationalsozialistengesetz, 1947, defined the criminal offences contained in the Prohibition Statute in a more detailed way. The 1992 amendment introduced art. 3h, expressly penalizing the denial of trivialization of the National Socialist genocide or the National Socialist crimes against humanity.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

Hide