The Austrian Constitution

Development
The constitution contains the basic rules governing politics and society. Austria’s constitutional law comprises the Federal Constitution, in the strict sense of the term, a multitude of constitutional acts and state treaties. Parts of the constitution date back to the 1860s. However, it is the Federal Constitutional Law of 1920, as amended in 1929, which forms the core of the Austrian Federal Constitution.

Milestones in the development of the constitution were, first of all, the revolution of 1848 and political liberalism from 1867 onwards. In the revolutionary post-war era 1918/19, the principles of parliamentary democracy prevailed over conceptions of a corporate state and a council democracy, and determined the constitution of 1920.

After a major amendment in 1925, the federal constitution was again amended in 1929, partly owing to pressure exerted by the fascist Heimwehren (Home Defence Front Fighters). The main consequence was a strengthening of the position of the Federal President vis-à-vis the Parliament: henceforth the president would be elected by the people and hold more powers.

On 4 March 1933, a procedural matter provided the Federal Government with a pretext for excluding the Nationalrat the lower house of the Austrian parliament, from political decision-making. Since all three presidents of the Nationalrat had resigned from office, there was no-one to close the sitting in the proper manner. An attempt by the third president Sepp Straffner to summon the Nationalrat on 15 March 1933, was forcibly stopped by the police. The official version issued by the Dollfuß cabinet was that the parliament had eliminated itself. The social democratic MPs were prevented from lodging an appeal against this procedure with the Constitutional Court by the following stratagem: the members of the Constitutional Court nominated by the Christian Social Party were coerced into resigning their offices, which immobilized the Court. This was the final breach of the constitution. On 30 April 1934, the democratic constitution was suspended by an emergency decree issued by a specially convened rump parliament. A new corporate constitution was promulgated on 1 May 1934. In this way the Dollfuß government effectively established an authoritarian political structure of a corporate nature. This structure was abolished upon the occupation of Austria by fascist German forces on 12 March 1938, and its annexation to the German Reich.

After the country’s liberation in April 1945, the Provisional Government decided to reinstate by means of the Transitory Constitutional Act of 1 May 1945 the constitution which had been in force before its breach in 1933/34. The regulations pertaining to the constitution which were to be rescinded were specified. The State Treaty of 1955 stated expressly: “The allied and associated powers recognize that Austria is re-established as a sovereign, independent and democratic state.”

Permanent neutrality had a strong bearing on the state treaty negotiations. When the status of permanent neutrality was brought into play by Austria, it facilitated the way out of the impasse which negotiations had reached at the end of 1954, and to the conclusion of these negotiations. On 26 October 1955, Austria’s status of neutrality was laid down in a federal constitutional law, though it is not included in the State Treaty with the Allied and Associated Powers. The constitutional law says, “Of her own free will … Austria declared her permanent neutrality for the purpose of the permanent maintenance of her independence.”

On 1 January 1995, subsequent to a referendum, Austria acceded to the European Union and became part of a supra-national organization. Community law has autonomous legal force and is directly applicable. It takes priority over national law and even over national constitutional law with the sole exception of constitutional principles.

The “Building Laws” of the Constitution

A number of basic principles, the so-called “building laws,” have been extracted from the Federal Constitutional Law (B-VG) and close to four hundred individually promulgated constitutional provisions. These fundamental principles are not formally identified in the constitution and are subject to interpretation. In substantive terms the scope of interpretation is defined by reflections on the fundamental aims of the state, and in formal terms by the question of whether changing a given legal norm would imply a total revision of the Federal Constitutional Law. Any total revision of the Federal Constitutional Law is subject to a vote by the entire population.

The following are uncontested principles upheld by the Austrian Federal Constitutional Law: the principle of democracy, the principle of republicanism, the principle of federalism and the principle of the rule of law. The final decision on whether or not an amendment of the constitution is tantamount to a total revision rests with the Constitutional Court.

The principle of democracy is enshrined in Article 1 of the Federal Constitutional Law: “Austria is a democratic republic. Its law emanates from the people.” The core message of this principle is that the people are the source of any generally binding norm. The decision-making process is essentially an indirect one, i.e. elected representative bodies act on behalf of the population at large. However, Austrian Constitutional Law also provides instruments of direct democracy such as the popular initiative, the referendum and the plebiscite. Judged by international standards, these instruments are anything but negligible and provide parliament with the opportunity to submit certain matters to the direct vote of the people. Moreover, a referendum is mandatory for a total revision of the constitution.

From its inception the principle of republicanism was conceived as a refutation of the monarchial form of government. The head of state is to be an elected federal president.

The principle of federalism is anchored in Article 2, paragraph 1: “Austria is a federal state.” This principle means that government functions are divided between the Bund (federal state) and the Länder (federal provinces) as partial states. The actual division of legislative and executive powers between the Bund and the Länder reveals that the principle of federalism is not highly developed in Austria.

The principle of the rule of law is laid down in Article 18, paragraphs 1 and 2 of the Federal Constitutional Law. “All public administration must be based entirely on law.”

Apart from the four above-mentioned principles, the constitution contains a number of other substantive conceptions, the abolition of which could be interpreted as a total revision of the constitution: the principle of the division of powers, the principle of independence and of the ban on annexation; laid down in Article 3 and 4 of the State Treaty of 1955, multi-party democracy and the permanent prohibition of fascist and national socialist activities.

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 fundamental rights and the civil rights and liberties were taken over from the Basic Law of 1867 and still remain part of the constitution. To this day, the contrasting value systems embraced by the political parties have prevented the drawing up of a modern, uniform catalogue of fundamental rights. 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.

Austria is playing a decisive part in developing human rights within international organizations, in particular the UN and the Council of Europe. The European Convention for the Protection of Human Rights and Fundamental Freedoms has had legal force in Austria since 1958; in 1964, it was in given constitutional status in its entirety. Among other rights it contains the right to life, the prohibition of torture or inhuman and degrading treatment or punishment, a ban on forced or compulsory labour, a ban on the expulsion of Austrian nationals, freedom of emigration, respect for private and family life, and the right to marry and to found a family. In the context of fundamental rights, major political importance is attached to the protection of minorities, which is anchored in the State Treaty of St. Germain (1919) and in the State Treaty of Vienna (1955).

In Austria, fundamental social rights are laid down in statutory provisions and thus lack the status of constitutional laws. These provisions are contained in the European Social Charter and in the UN-Covenant on Economic, Social and Cultural Rights.