Constitutional Court Act (1953, as of 2016) (excerpts)

Constitutional Court Act 1953 - VfGG

(excerpts)

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“I. In the case of results of elections, popular initiatives, people’s consultations or referendums challenged and of decisions on the loss of a seat of a people’s representative body (art. 141 of the Federal Constitution Act)

§ 67. (1) Results of elections of the Federal President, elections to the general people’s representative bodies, the European Parliament, a constituent organ of a statutory association of professions, employers or employees or an executive organ of a municipality (hereinafter named municipal executive)may be challenged on the grounds of any alleged unlawfulness of the election procedure. The challenge shall contain the request to nullify the election proceeding or part of it, and specify the reasons for the request.

(2) Challenging the election to a government of a Land requires a motion of one tenth of all members of the legislative of the Land, in any case at least of two of its members, challenging the election of a municipal executive requires the motion of one tenth of the members of the municipal council, in any case of at least two of its members. Groups of voters (political parties) who have submitted in due time election proposals for the challenged election with an electoral authority prescribed by the election procedure are authorized to challenge the other elections as named in para 1, and they can do so through their authorized recipient. If the election procedure does not provide for any such submission of election proposals, the authorization for challenging elections before the Constitutional Court is governed by the special regulations of such election procedures. A challenge of an election may also be filed by such party intending to run in the election claiming that he had been unlawfully denied the right to run in the election.

(3) If the challenge of the election is based on the unlawfulness of a ruling and a suspension of the enforcement of the ruling contested does not give reason for a substantial disadvantage, the Constitutional Court may, upon request, decide that the challenge has suspensive effect. If the Constitutional Court is not in session, the President shall decide upon a motion of the reporter.

§ 68. (1) The challenge must be filed within four weeks after termination of the election proceeding, if however the respective electoral law provides for appeals, within four weeks after service of the ruling issued in the last stage of appeal. It must be accompanied by the original or a copy of all documents it is based on.

(2) The Constitutional Court shall send one copy of the challenge as filed to the supreme electoral authority in charge in accordance with the electoral regulation applicable, with the order to submit the electoral files within a given time. This electoral authority is free to submit a cross-statement at the latest when submitting the electoral files.

§ 69. (1) In addition to the challenging party, all groups of voters (parties running in the election) shall be summoned to participate in the public oral hearing before the Constitutional Court which have been applicants for the challenged election, or other parties entitled to challenge the election on basis of the respective electoral regulation. The electoral authority named in § 68 para 2 may delegate a representative at its discretion.

(2) If the unlawfulness alleged in the challenge consists in the fact that an ineligible person has been declared elected or an eligible person has been unlawfully declared ineligible, such person shall also be summoned to participate.

§ 70. (1) The Constitutional Court shall allow a challenge filed if evidence of the alleged unlawfulness of the election proceeding has been proved and such unlawfulness has affected the result of the election. In the decision granted to the challenge the Constitutional Court shall repeal either the complete election proceeding or parts of it to be specifically defined.

(2) If the Constitutional Court allows a challenge of an election because a non eligible person has been declared elected, it shall declare the election of such person null and void. In this case the provisions of the respective electoral regulation referring to a seat having become vacant shall apply.

(3) If the Constitutional Court allows a challenge of an election because an eligible person has been wrongly declared non eligible, the decision shall state whether this causes the election of other persons to be void, in which case the election of such persons shall be cancelled. If the contested election has taken place on basis of party lists registered, the electoral authority in charge shall correct the election result it published.

(4) The electoral authorities which, after the challenge of the election has been accepted, have to decide on the merits and issue the further rulings, are bound to the actual facts and the legal view expressed in the decision of the Constitutional Court.

(5) In the cases of paras 1 through 3 the decision of the Constitutional Court shall be served without delay to the chairman of the representative body concerned (the statutory association of professions, employers or employees itself). Those persons whose election is to be considered cancelled or void because of the decision, shall from the day following the date of service not participate in the meetings of the respective representative body and abstain from business in the government of the Land (in the municipality executive body, in the statutory association of professions, employers or employees). If however the decision of the Constitutional Court cancelling the result of the election results in the necessity of a partial or total repetition of the elections to a general representative body, to the European Parliament or to a constituent organ (representative body) of a statutory association of employers, employees or professionals, the members of such representative body concerned shall lose their seat only when the newly elected members take office.

§ 71. (1) The general representative bodies may at any time request the Constitutional Court to declare that a member of the representative body shall lose his/her seat for a reason provided by the law. This shall apply accordingly to the municipality organs with regard to the members of the municipality executive body with regard to such function and to the organs of the statutory representations of employers, employees and professionals as determined in the electoral regulations with regard to the constituent organs (representative bodies) of a statutory association of employers, employees and professionals. If one of such representative bodies takes such a decision, its chairman, or the deputy chairman, if the chairman himself is involved, shall file the request with the Constitutional Court on behalf of the representative body.

(2) If the right to be elected is lost due to a sentence under penal law, the Constitutional Court shall be bound to the final penal sentence.

(3) The provisions on challenges of elections shall apply accordingly to the proceeding. Also the person whose mandate is to be declared forfeited shall be summoned to the public oral hearing.

(4) Paras 1 through 3 shall apply accordingly if the request to forfeit a mandate is filed under §§ 9 and 10 of the Incompatibility Act 1983, Federal Law Gazette No. 330.

§ 71a. (1) A challenge of a ruling of an administrative authority pronouncing the forfeiture of a seat in a general representative body, the function in a municipal executive board or a constituent organ (representative body) of a statutory association of employers, employees or professionals can only be filed after exhausting the chain of appeals within a period of six weeks after service of the ruling issued in the last instance of appeal.

(2) Also the representative body (the statutory association of employers, employees and professionals) shall have the capacity to be a party in the proceeding before the Constitutional Court.

(3) The challenge has suspensive effect.

(4) The Constitutional Court shall allow the challenge and repeal the ruling challenged if the alleged unlawfulness is true.

(5) §§ 82 paras 2 and 3, 83, 84 para 1, 86 and 88 shall apply accordingly to the proceeding. The party filing the challenge and the authority shall be summoned to the public oral hearing.

J. In cases of suits claiming the constitutional responsibility of the supreme Federal and Laender authorities for legal contraventions culpably ensuing from their official activity (art. 142 and 143 of the Federal Constitution Act)”

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