Austria has signed and ratified a large number of international legal instruments relevant in the field of combating racism and intolerance, but equality clauses with different scope are also contained in the various laws and provisions which compose its Constitutional order. Austrian constitutional framework is 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.

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Austria has signed and ratified a large number of international legal instruments relevant in the field of combating racism and intolerance, but equality clauses with different scope are also contained in the various laws and provisions which compose its Constitutional order. Austrian constitutional framework is 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.

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. 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.

While article 7 of the B-VG (B-VG.art.7) and article 2 of the StGG do not expressly mention the criterion of race and guarantee equality before the law to Austrian citizens only, 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.67,67).

The definition of racial discrimination is taken from ICERD, article 1 paragraph 1, and is thus considered an extension of Article 7 of the Austrian Constitution's equality clause (Bundesverfassungsgesetz zur Durchführung des Internationalen Übereinkommens über die Beseitigung aller Formen rassischer Diskriminierung, RassDiskrBVG 1973, Federal Law Implementing the International Convention on the Elimination of All Forms of Racial Discrimination). This regulates actions and requirements solely based on race, color, descent, national or ethnic origin. Religion is not included in this definition, it is however part of the equality clauses of both the two treaties of 1919 and 1955 and the 1929 constitution. Article 1 paragraph 1 of the Law on the Implementation of the ICERD prohibits different treatment for foreigners unless objectively justified and only insofar that the different treatment is proportionate. According to Article 14 paragraph 6 of the Federal Constitution public schools, nurseries, day care centers and student homes are accessible to anyone regardless of among other things race, religion or language (B-VG.art.14). The crucial question is whether the constitutional provisions mentioned above do prevent all possible unjustified discriminations or differential treatment between Austrian nationals and non citizens.

Furthermore, in consideration of the fact that discriminatory actions are rarely based on the "sole" basis of race, color, national or ethnic origin and that these grounds of discrimination are usually combined with other reasons, international observers wonder whether a different wording of Article 1 (para.1) of the Federal Constitutional Act would not provide for a more thorough protection against discrimination.

Legal regulations and case law as far as crimes of racism in the context of (neo-)Nazism ideology are concerned are somewhat developed. Based upon the treaty of 1955 are the provisions of the Verbotgesetz, StGBl (Prohibition Statute), 1945. It 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 later abolished. The amending act, called Nationalsozialistengesetz, 1947, defined the criminal offences contained in the Prohibition Statute in a more detailed way. The 1992 amendment introduced § 3h, expressly penalizing the denial of trivialization of the National Socialist genocide or the National Socialist crimes against humanity. In the Austrian Strafrecht (Criminal Code) art 283 threatens with imprisonment for up to two years whoever incites to hostile action also against a group determined by its belonging to a church or religious community, race, nation, ethnic group or state. Art 33 Z 5 (included in 1997) deals with aggravating circumstances to be considered in determining the extent of the sentence: in case of an offence committed for racist or xenophobic reasons, the motivation is to be investigated in court and considered an aggravating factor in determining the sentence. Art 33 of the Allgemeines Bürgerliches Gesetzbuch, ABGB (General Civil Code), 1811 last amended 1916, is a general equal treatment clause stipulating that non-natives enjoy the same civil rights and obligations as the native population unless citizenship is explicitly required. The ABGB also has other clauses related to oligations on the basis of ICERD, but does not contain a general anti-discrimination clause and does not deal with discrimination on the grounds of racial and ethnic origin. Articles 16 and 879 include the entitlement of the individual to freedom from discrimination.

In general there is equal access to education. In some areas of professional training and schools, however, discrimination exists with regard to the requirement of fluent speaking of the German language, e.g. in the area of federal training schools for children’s‘ nurses (KindergärtnerInnen). There is sometimes discrimination with regard to the fees that have to be paid, e.g. the training to become a nurse or assistant nurse (Krankenpfleger/in, -helfer/in) held by the city of Vienna.

The Austrian report submitted in 2000 under the provisions of the UN Convention on the Abolition of Racial Discrimination was dealt with in March 2002 by CERD. The committee approved Austria’s establishment of an advisory panel on human rights within the Ministry for Home Affairs as well as the functioning of human rights coordinators in the other ministries, the activities of the Vienna Integration Fund and the National Fund for Victims of National Socialism, relevant legislation on small businesses, security police, etc., and bilingual topographical signs in areas with linguistic minorities. Criticism was expressed on certain gaps in regulation, especially on civil rights, for the effective countering of racism (which, however, were already in the process of being corrected), gaps in the statistical data, individual cases of racism in everyday life, and problems in connection with state support for asylum seekers.

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

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