Judiciary of Austria

The administration of justice in Austria is the sole responsibility of the federal government. Judges and prosecutors are recruited, trained, and employed by the Republic; courts hand down verdicts in the name of the Republic (). There is no such thing, for example, as an Austrian county court. The court system has two branches: • general courts () try criminal cases and (most) civil cases; • courts of public law () try (some of the) civil cases in which the respondent is a government authority: • the Constitutional Court () exercises judicial review of legislation and constitutional review of administrative actions; • a system of administrative courts () exercises judicial review of administrative actions. Judges are independent. Appointments are for life; judges cannot be removed or reassigned without their consent. In courts with more than one judge − which is essentially all of them − there has to be a fixed and specific apportionment of responsibilities () to prevent the government from influencing outcomes by hand-picking a judge sympathetic to its perspective. For example, if a litigant files for divorce in a court with multiple judges handling divorce cases, the first letter of their last name decides which judge they are assigned. Judges presiding over trials are professionals. In order to become eligible for appointment to a bench, a prospective judge needs to have a master's degree or equivalent in Austrian law, undergo four years of post-graduate training, and pass an exam. The training includes theoretical instruction and internship-type practical work in an actual courthouse. Appointments to benches are made by the president, although the president can and does delegate most of this responsibility to the minister of justice. Nominations come from within the judiciary; panels of judges suggest candidates for benches with vacancies. There is no military justice in peacetime; members of the military are tried by the regular court system. == Procedure ==

regional court Trials are oral and public. Civil trials are adversarial trials (). The court evaluates evidence brought before it by the parties to the trial but makes no attempt to uncover any additional evidence or otherwise investigate the matter itself. Criminal trials are inquisitorial trials (). The court is actively involved, questioning witnesses brought forward by the parties to the trials, summoning expert witnesses on its own initiative, and generally attempting to determine the truth. Most trials are bench trials, although the bench will often be a panel including one or more lay judges (). Criminal defendants accused of political transgressions or of serious crimes with severe penalties have a right to trial by jury. Pursuant to the European Convention on Human Rights, which has been adopted into the Austrian constitution, but also to Austrian constitutional law preceding it, criminal defendants are protected by the set of procedural guarantees typical for modern liberal democracies. Among other things, defendants • are presumed innocent until proven guilty; • have the right to a speedy trial; • cannot be tried in absentia; • cannot be forced to incriminate themselves; • cannot be tried for transgressions that are not specifically defined to be criminal offenses by statutory law, or that not specifically defined to be criminal offenses by statutory law ("nulla poena sine lege"); • cannot be prosecuted twice for the same crime, alleged or actual ("non bis in idem"); • have a right to an appeal. The right to an appeal is taken seriously. Any party to any trial before a general court can file an appeal on facts and law (). If the case is a civil case, the appellate court first checks whether the trial court has committed procedural errors; if yes, it orders a retrial, sending the case back to the trial court. If no, or if the case is criminal, the appellate court conducts what is essentially a retrial itself − the appellate trial does not merely review questions of law but also questions of fact, assessing evidence and questioning witnesses. In addition to the appeal on facts and law against the verdict of the trial court, an appeal at law ( in civil trials, in criminal cases) can be filed against the verdict of the appellate court. In criminal cases, appeals at law that are not obviously frivolous are also handled in public hearings. A successful appeal at law not just overturns but completely erases the verdict of the appellate court, sending the case down the ladder again. Verdicts of trial courts − although not of appellate courts − that result from the trial court's application of an unconstitutional statute or an illegal ordinance can additionally be fought with extraordinary appeals at law to the Constitutional Court. == General courts ==

The hierarchy of general courts has four levels: district, regional, higher regional, and supreme. For most cases, original jurisdiction lies with one of the district courts; its decision can be appealed to the relevant regional court. Some cases are first tried before the regional court and can be appealed to the higher regional court. Except for special types proceedings (e.g. certain antitrust matters), higher regional courts and the Supreme Court do not have original jurisdiction; they exclusively hear appeals. One of the peculiarities of the Austrian judiciary is its strict organizational separation of civil and criminal justice. Courts are divided into civil and criminal chambers; judges spend their days trying either civil cases or criminal cases but never both. In Vienna and in Graz − the country's two largest cities by a wide margin − the two chambers of the regional court are actually two completely separate courts, housed in separate buildings. In Vienna, there is a third regional court for trials at mercantile law () and a fourth regional court for cases involving employment and social assistance law (). Normally, original jurisdiction over disputes in these areas of law would lie with the civil regional court. As an additional special case, the higher regional court in Vienna has original jurisdiction over antitrust cases. District courts There are currently 113 district courts (). Most judicial districts are coextensive with one of the country's 94 administrative districts, although there are exceptions. Some of the larger administrative districts are partitioned into two or more judicial districts. The extreme case is the City of Vienna, home to no fewer than 12 separate district courts. In some cases, a district court serving a city also serves part of the surrounding suburbs. In others, two or three very small administrative districts are lumped together into a single judicial zone. District courts are responsible for • civil trials () involving matrimonial and family matters, real estate rental or lease matters, real estate boundary or easement disputes, or trespass to land; • most simple debt collection, foreclosure, and bankruptcy matters; • other civil trials with the amount in dispute not exceeding €15,000, excepting employment and social assistance disputes; • most criminal trials () involving finable offenses or jailable offenses with a jail term of no more than one year; • most non-adversary matters (), for example probate proceedings, adoptions, declarations of death in absentia, or invalidation of lost securities certificates; • most adversary non-trial matters (), including but not limited to child custody disputes, child maintenance and visitation rights disputes, appointments of legal guardians for senile elders or the mentally ill, or expropriation proceedings; • maintaining the land register. Trials before the district court are bench trials decided by a single judge (). Non-adversary proceedings, debt collection, foreclosure, bankruptcy, and land register matters can also be decided by a judiciary clerk (). While there are permanent district judges, there are no district . Criminal trials are prosecuted by a state attorney () attached to the relevant regional court. In minor cases, the public prosecutor can assign a district prosecutor () to substitute for them. The district prosecutor is not necessarily an attorney, however, and cannot act on their own initiative or authority. Regional courts regional court There are 18 regional courts () in Austria; their seats are in Eisenstadt, Feldkirch, Graz, Innsbruck, Klagenfurt, Korneuburg, Krems an der Donau, Leoben, Linz, Ried im Innkreis, Salzburg, Sankt Pölten, Steyr, Vienna, Wels, and Wiener Neustadt. In Graz and Vienna, the civil and criminal chambers set up as two separate courts, meaning that Graz and Vienna each have a civil regional court () and a criminal regional court (). Regional courts are responsible for • exercising original jurisdiction over all civil and criminal matters not handled by district courts; • hearing appeals on facts and law () against district court decisions; • keeping the company register. In cases for which the regional court has original jurisdiction, the trial is usually a bench trial decided by a single professional judge, but there are several exceptions: • Suits at employment law or social assistance law are decided by a panel of three judges, one professional judge () and two lay judges (). The lay judges are lay judges () and are effectively meant to double as court-appointed disinterested expert witnesses. • Other civil suits can be tried by three-judge panels upon request of the parties if the amount in dispute exceeds EUR 100,000. In cases at mercantile law, the panel consists of two professional judges and one expert lay judge ( here). In other cases, the panel consists of three professional judges. • Criminal trials are held before three-judge panels, four-judge panels, or juries in cases of alleged homicide, sexual assault, robbery, certain types of grand larceny or fraud, and in any case where the alleged crime carries a maximum jail term of more than five years. The specifics are somewhat involved; the following is a rough outline: • Most of the cases outlined above go before a three-judge panel consisting of one professional judge and two lay judges (). • In cases of alleged manslaughter, aggravated robbery, rape, membership in a terrorist organization, abuse of official authority, or financial crimes causing more than EUR 1,000,000 in damage, a second professional judge is added to the panel. • Charges of murder, actual terrorist violence, or armed insurrection are jury trials decided by three professional judges and eight jurors (). The same is true for treason, a number of other political crimes, and all other crimes with minimum jail terms of more than five and maximum jail terms of more than ten years. In criminal trials, some effort is made to prevent panels and juries from being biased or unable to empathize with either defendants or alleged victims. If the crime alleged is a sexual assault or some other violation of a person's sexual integrity serious enough to warrant a panel, then at least one of the judges must belong to the same sex as the alleged victim. If there is a jury, then at least two of the jurors must be of the same sex as the alleged victim. If the defendant is juvenile and the alleged crime is serious enough to warrant a panel, then at least one of the judges must be of the same sex as the defendant and at least one of the judges must be a present or former educator or competent social worker. If there is a jury, at least two of the jurors must be of the relevant sex and at least four must have the relevant job experience. Appeals of district courts decisions to regional courts are decided by three-judge panels: two professional judges and one expert lay judge in trials at mercantile law, three professional judges in all other civil matters and in all criminal cases. Routine company register decisions are made by single judges or by judicial clerks. Attached to every regional court dealing with criminal trials, there is a branch of the state prosecution service () and a prison (). Regional courts and regional-level state prosecutors organize and supervise most of the pre-trial work () in Austria, even in cases in which the main court proceedings () are going to take place in a district court. In many ways, the regional courts are the backbone of the Austrian judiciary. Higher regional courts There are four higher regional courts (). They are located in Graz, Innsbruck, Linz, and Vienna. Higher regional courts decide appeals on facts and law () in cases originally tried before regional courts. As a special case, the higher regional court in Vienna decides antitrust disputes. Trials before higher regional courts are bench trials decided by panels of either three or five judges: three professional judges and two expert lay judges in employment and social assistance cases, two professional judges and one expert lay judge in all other civil cases, and three professional judges in all criminal trials. Each higher regional court has a chief public prosecutor's office (). Supreme Court of Justice , seat of the Supreme Court of Justice since 1881 The Supreme Court of Justice ( or ) hears appeals at law ( in civil trials, in criminal cases) against verdicts of appellate courts. The court also deals with service-related complaints by jurists against the judiciary and with disciplinary complaints against jurists; it acts as the trial court in cases involving certain senior judges and prosecutors, as an appeals court in cases involving lower-level judges and prosecutors, attorneys, and notaries. In addition to its adjudicative responsibilities, the court is charged with running the Republic's official public law library (the ). On the request of the president of the court or the minister of justice, the court produces appraisals of draft legislation presented to the National Council by the government. The court does not have a fixed number of justices; it consists of a president, a vice president, and as many additional members as Court and cabinet deem necessary and appropriate. As of the early 21st century, there are typically between fifty and sixty judges on the court. As of August 2018, there are 61. The court is partitioned into 18 panels () of five members each. One panel exclusively deals with appeals decisions reached by arbitration tribunals; another panel hears to appeals to antitrust verdicts handed down by the Vienna higher regional court, which has specialist exclusive jurisdiction over all Austrian antitrust cases. A third panel handles disciplinary proceedings and other disputes internal to the judiciary. Of the remaining fifteen panels, ten deal with civil cases and five with criminal trials. The responsibility for appointing justices is vested in the president, but the president can and usually does delegate this task to the minister of justice. The court maintains a special personnel committee (German: ) that provides the minister with a shortlist of three candidates in the event of a vacancy. In theory, the minister may appoint any Austrian legally qualified to sit the bench and not excluded by the constitution's rudimentary incompatibility provisions. In practice, the minister dependably picks one of the three candidates nominated by the court. The Supreme Court of Justice convenes in the Palace of Justice in Vienna. == Courts of public law ==

The Austrian model of separation of powers forbids the administrative and judicial branches of government from interfering with each other. This peculiarity, established during the neo-absolutist years of the Habsburg monarchy, originally meant that subjects could not take bureaucrats to court or otherwise petition the courts to review the legality of administrative acts. The Constitution of 1920 fixes this problem by establishing the Administrative Court and the Constitutional Court, two tribunals that cut across the division. Pointedly called instead of simply , the two tribunals are staffed by lawyer judges and generally behave like courts without technically courts. The terminology used by most modern English-language literature makes the distinction difficult to see; it remains salient in German texts. Broadly speaking, the administrative court system reviews administrative acts, the Constitutional Court reviews legislative acts and judicial demarcation conflicts. Administrative court system Constitutional Court The Constitutional Court ( or ) adjudicates on • liability claims against Austria, its provinces, and its municipalities; • demarcation conflicts between courts, between courts and the administration, and between national and regional governments; • the constitutionality of statutes and the legality of ordinances and other secondary legislation; • the legality of international treaties; • election complaints; • accusations of misconduct in office against certain elected officials and political appointees; • complaints alleging violations of constitutional rights or the rule of law by the executive branch. The Constitutional Court is the only court in Austria with the power of judicial review of legislation. The Austrian method of vesting all power to strike legislation in a single specialist court is called the system of judicial review. Because Austria was the first country to adopt this approach when Hans Kelsen created the Constitutional Court in its modern form with the 1920 Kelsen constitution, the approach is sometimes also called the system. Because the approach has since spread to Germany, Italy, Spain, Portugal, and Belgium, some people call it the approach. Legislation can be challenged before the Constitutional Court by any private person, natural or other. The complaint has to argue that the complainant is being violated in their rights by the piece of legislation at issue, actually and not just potentially. The complaint also has to argue that there is no plausible way for the complainant to get the problem resolved through any other procedure. Depending on the type of the statute, ordinance, or treaty, the court can often also be called upon by the national government, by regional governments, or by groups of national or regional legislators. Legislation can also be challenged by courts that are trying cases for whose outcome it is relevant. Legislation can further be challenged by one of the parties to the a trial, but only after the trial court has handed down its verdict and only if the verdict actually references the piece of legislation in question. Verdicts by administrative trial courts can additionally be challenged on the grounds that they violate the relevant party's constitutional rights in some other way. This possibility lets the Constitutional Court exercise judicial review not just of ordinances but also of individual-scope actions of the executive branch: A citizen who feels violated in their constitutional rights by an administrative decision or assessment files suit in an administrative court. If the administrative court agrees with the complainant, it overrules the administration. If the administrative court does not, the complainant can escalate the matter to the Constitutional Court. If the Constitutional Court agrees with the complainant, it overrules the administrative court, prompting a retrial; it thus potentially also overrules the administration. Unlike the Supreme Court of Justice and the Supreme Administrative Court, the Constitutional Court is not a court of appeals. It only hears cases it has original jurisdiction over, although the way Austria uses general and administrative courts to vet complaints about unconstitutional legislation and other constitutional rights infringements does present something of an edge case. The Constitutional Court consists of fourteen members and six substitute members, appointed by the president on nomination of the cabinet, the National Council, and the Federal Council. In theory, trials before the Constitutional Court are oral, public, and decided by the full plenum. In practice, oral argument and true plenary sessions have become rare because workload is heavy and there are broad exceptions to these general rules; most cases today are decided behind closed doors by panels of either nine or five members. Opinions tend to be concise and academic. Only the actual decision is published; there are no concurring or dissenting opinions. == History ==

March Constitution set Austria on the path from absolute to constitutional monarchy. In its modern form, the Austrian judiciary goes back to the March Constitution of 1849. Throughout the 18th and early 19th century, the Habsburgs had tried to rule as absolute monarchs, holding unrestricted power over their subjects with no constraints due to any kind of feudal social compact and with no interference from any of the estates of their various realms. The Revolutions of 1848 compelled a first step towards constitutional rule. Under intense pressure, Emperor Ferdinand tried to appease the revolutionaries by enacting the Pillersdorf Constitution, a statute that promised increased civil liberties, a limited form of democratic participation in government, and access to independent courts with the power to review administrative acts and halt administrative overreach.