Constitutional Court (Austria)
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The Constitutional Court ( or ) in
Austria Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...
is the
tribunal A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title. For example, an advocate who appears before a court with a singl ...
responsible for
judicial review Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are in ...
. It verifies the constitutionality of
statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
s, the legality of ordinances and other
secondary legislation Secondary may refer to: Science and nature * Secondary emission, of particles ** Secondary electrons, electrons generated as ionization products * The secondary winding, or the electrical or electronic circuit connected to the secondary winding ...
, and the constitutionality of decisions of certain other courts. The Court also decides over demarcation conflicts between courts, between courts and the public administration, and between federal and state bodies. It hears election complaints, holds elected officials and political appointees accountable for their conduct in office, and adjudicates on liability claims against Austria and its bureaucracy. The Court consists of fourteen members and six substitute members, appointed by the
president President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university *President (government title) President may also refer to: Arts and entertainment Film and television *'' Præsident ...
on nomination of the
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, the National Council, and the
Federal Council Federal Council may refer to: Governmental bodies * Federal Council of Australasia, a forerunner to the current Commonwealth of Australia * Federal Council of Austria, the upper house of the Austrian federal parliament * Federal Council of German ...
. Although theoretically supposed to, the Court rarely meets in plenum and rarely hears oral arguments; most cases today are decided behind closed doors by panels of either nine or five members. Opinions tend to be concise and academic. The Constitutional Court is very powerful but has historically exhibited considerable
judicial restraint Judicial restraint is a judicial interpretation that recommends favoring the ''status quo'' in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of '' stare decisis'' (that new de ...
.
Christoph Grabenwarter Christoph Grabenwarter (born 4 August 1966) is an Austrian legal scholar and professor, currently serving as the President of the Constitutional Court. Career Born in Bruck an der Mur, Styria, in 1966, Christoph Grabenwarter studied law and bu ...
is currently serving as the court's president.


Powers and responsibilities


Liability claims

The Constitutional Court adjudicates on liability claims against the Republic, its provinces, and its municipalities.


Demarcation conflicts

The Constitutional Court adjudicates on competing claims of authority: * between courts and the bureaucracy; * between general courts and administrative courts; * between other courts and the Constitutional Court itself; * between provincial governments; * between one of the provincial governments and the national government. The complaint does not have to come from one of the competing entities directly. Persons, natural or other, who believe they are being violated in their rights by an authority improperly assuming jurisdiction have a right to complain; they can file suit the authority they believe is being stepped over. Persons also have a subsidiary right to demand that the Constitutional Court deal with demarcation conflicts. If a person applies for a permit or for some other administrative act and gets turned away by two different authorities, each claiming that the matter falls within the purview of the respectively other, the applicant can ask the Constitutional Court to order one of the authorities to assume responsibility and take action. The national government and the provincial governments can ask the Constitutional Court to decide a possible demarcation conflict before it becomes an actual controversy. If the national legislature is considering an act that the national cabinet thinks would infringe the area of competence reserved to the provinces, the national cabinet can send the draft act to the Constitutional Court for review. The national cabinet can also ask for a review of
secondary legislation Secondary may refer to: Science and nature * Secondary emission, of particles ** Secondary electrons, electrons generated as ionization products * The secondary winding, or the electrical or electronic circuit connected to the secondary winding ...
it is considering. Provincial cabinets, likewise, can ask the Court to review draft provincial legislation, primary or secondary. The legislation has to be draft; it cannot have been resolved upon yet. The Court's verdict becomes constitutional law and is published as such in the statutory gazette. The verdict thus binds even the Constitutional Court itself, preventing it from overruling itself on the matter; only an amendment to the constitution can supersede the decision.


Judicial review

The Constitutional Court ensures that all Austrian legislation, primary or secondary, conforms to any Austrian legislation outranking it. Statutes and
international treaties A treaty is a formal, legally binding written agreement between sovereign states and/or international organizations that is governed by international law. A treaty may also be known as an international agreement, protocol, covenant, conventi ...
that have been elevated to statute rank by the legislature have to conform to the constitution. Executive ordinances and ordinary treaties also have to conform to ordinary law. Supplementary ordinances additionally have to conform to the original ordinances they derive from. A road sign, for instance, needs to be legal under the Road Traffic Act but also in compliance with the Ministry of Commerce Regulation on Road Signs. Since the Austrian constitution defines Austria to be a
federation A federation (also called a federal state) is an entity characterized by a political union, union of partially federated state, self-governing provinces, states, or other regions under a #Federal governments, federal government (federalism) ...
, the provinces are
federated states A federated state (also state, province, region, canton, land, governorate, oblast, emirate, or country) is a territorial and constitutional community forming part of a federation. A federated state does not have international sovereignt ...
on paper and have token constitutions of their own; provincial law has to conform with these as well as with the national constitution. The Court does not check legislation for compliance with
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...
law. Unconstitutional laws and ordinances are not void . The Court's decision rescinds them just like abrogation by the legislature or the administration would have done; decisions based on them that have been made in the past remain standing. The Court has some latitude with respect to the date its decision becomes effective. Usually, laws and ordinances found to be unconstitutional go out of force the day after the publication of the verdict. To prevent disruption, however, the Court can set a grace period during which a piece of unconstitutional legislation still remains on the rolls and may still be applied. The grace period may last up to six months for ordinances and up to eighteen months for laws. The Court may allow eighteen months for ordinances that are statutes because their disappearance will require a new statute to deal with. On the other hand, the Court can also make its decision retroactive. The Court's broad discretion forces the Court to "legislate from the bench" whether it wants to or not: the Court does not simply announce a finding it notionally cannot avoid; it is officially choosing policy. The Court cannot void treaties because Austria cannot unilaterally rescind an agreement it has entered into under international law. The Court can, however, order Austrian officials to stop applying the treaty. If this puts Austria in breach of treaty obligations, it is up to the administration to negotiate an amendment to the treaty or a withdrawal from it. As with statutes and ordinances it strikes, the Court can grant a grace period during which the provisions of the treaty can still be applied. The grace period may last up to two years for treaties that alter the constitution of the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...
and up to one year for most other treaties. 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 The executive branch is the part of government which executes or enforces the law. Function The scope of executive power varies greatly depending on the political context in which it emerges, and it can change over time in a given country. In ...
: 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.


Election complaints

Election results can be challenged before the Constitutional Court. Elections that can be challenged include, but are not limited to, presidential elections, elections to the National Council, provincial legislatures, municipal councils, municipal district councils, and the
European Parliament The European Parliament (EP) is one of the two legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it ...
. The Court hears challenges not just to elections by the general public but also to elections by representative bodies, for example elections of
Federal Council Federal Council may refer to: Governmental bodies * Federal Council of Australasia, a forerunner to the current Commonwealth of Australia * Federal Council of Austria, the upper house of the Austrian federal parliament * Federal Council of German ...
members or provincial governors by provincial legislatures, elections of mayors by municipal councils, or elections of municipal district chairpersons by municipal district councils. It also hears challenges to the results of popular initiatives, popular consultations, and plebiscites. Elections by the general public can be challenged by the participating political parties or candidates; elections by representative bodies can be challenged by a motion of one tenth of the relevant body's members. Results of popular initiatives () are challenged by the initiator or by a motion of four members of a legislature. A petition by voters challenges the results of a popular consultation () or a plebiscite (); the petition needs to have between 100 and 500 signatures, depending on the size of the constituency. If the Court finds that election law has been violated in a way that could have affected the outcome, the Court can order a recount or void the election outright, either in its entirety or least for the voting district in question. The Court is to void the election if the complainants prove that the irregularity really affect the outcome. Popular misconceptions regarding this point have caused controversy in the past. The Court was accused of overreach, for instance, when it ordered a repeat of the
2016 Austrian presidential election Presidential elections were held in Austria on 24 April 2016, with a second round run-off on 22 May 2016. However, the results of the second round were annulled and a re-vote took place on 4 December 2016.Klatzer, Jürgen, Daniela Wahl and Peter ...
. The losing side could prove infractions but did not show (or even argue) that these infractions were the reason they had lost. The Court would not have been to void the election; some commentators mistakenly believed it would also not have been to. The Court has historically been fairly strict in its insistence on proper procedure. It has voided elections over irregularities that could not possibly have affected the outcome, just as a matter of principle. Most notably, the Court has ordered a repeat of the 1995 National Council election in the town of
Reutte Reutte (; Swabian: ) is a town in the Austrian state of Tyrol. It is the administrative center of the Reutte district (''Districts of Austria''). Reutte is located on the Lech, and has a population of 6,704 (as of 2018). Neighbouring municipal ...
. Sonja Moser, Minister of Family Affairs at the time, was visiting her native Reutte on election day and was able to cast a vote even though she was not on the voter roll; as a minister, she was living in Vienna and would have been on the roll in Vienna. Polling station officials noticed the problem but chose to turn a blind eye. To make a firm point about election officials turning blind eyes, the Constitutional Court had the citizens of Reutte vote again.


Impeachments

A number of elected officials and political appointees can be
impeached Impeachment is a process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. It may be understood as a unique process involving both political and legal elements. In Eu ...
before the Constitutional Court for misconduct in office. Impeachment is limited to allegations of
culpable In criminal law, culpability, or being culpable, is a measure of the degree to which an agent, such as a person, can be held morally or legally responsible for action and inaction. It has been noted that the word ''culpability'' "ordinarily has ...
violations of actual law; mere political malpractice is not enough. As a special case, the
president President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university *President (government title) President may also refer to: Arts and entertainment Film and television *'' Præsident ...
can only be impeached for culpable violations of law. Members of the cabinet are impeached by the National Council. Most other officials are impeached by the cabinet. Members of provincial administrations are impeached by the National Council, the cabinet, or the provincial legislature, depending on the nature of the alleged transgression. The president is impeached by the Federal Assembly. If the Court finds the defendant guilty, the Court is required to remove the defendant from office. In certain minor cases, the Court can limit itself to merely noting the violation. In extreme cases, the Court can strip the defendant of their political rights, although only for a limited term; this would prevent the defendant from holding political office again for a while.


Composition

The Constitutional Court consists of the president, the vice president, twelve additional members, and six substitute members. Justices are appointed by the
President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university *President (government title) President may also refer to: Arts and entertainment Film and television *'' Præsident ...
on the nomination of the cabinet, the National Council, or the
Federal Council Federal Council may refer to: Governmental bodies * Federal Council of Australasia, a forerunner to the current Commonwealth of Australia * Federal Council of Austria, the upper house of the Austrian federal parliament * Federal Council of German ...
: * The cabinet nominates the president, the vice president, six additional members, and three substitute members. * The National Council nominates three members and two substitute members. * The Federal Council nominates the remaining three members and the remaining one substitute member. Nominees must have a
law degree A law degree is an academic degree conferred for studies in law. Some law degrees are professional degrees that are prerequisites or serve as preparation for legal careers. These generally include the Bachelor of Civil Law, Bachelor of Laws, an ...
and must have spent at least ten years working in a position that actually requires a law degree; they do not need to be licensed to practice law in any particular capacity. Justices nominated by the cabinet, however, need to be members of the judiciary () or career civil servants (), or hold a full professorship (). Members of the judiciary () are jurists who have completed post-graduate training for the judgeship, have passed the final exam, and are thus eligible for appointment to a bench; they do not have to currently hold an appointment. Nominees cannot be members of a national or provincial cabinet or legislative body and cannot be officers () or employees of any political party. Members who assume any such position after their appointment to the Court have to be removed from the Court. Apart from this restriction on overtly political occupation, there are essentially no rules trying to prevent conflicts of interest. The framers of the constitution of 1920 did not want the Court to consist mainly of professional judges; they wanted the Court to be able to draw on real-world experience in a variety of professions. The framers also did not predict current workloads and did not believe a position on the Court would be a full-time job; they envisioned membership of the Court as an honorary post bestowed on elders and dignitaries with continuing responsibilities elsewhere. Members of the Court can and do sit on the boards of directors of publicly traded companies, including companies that do business with the Austrian government; they can even do lawyering work for companies involved in disputes before Austrian courts. This fact has become a source of controversy. Members and substitute members retire on the last day of the year they turn seventy. A member or substitute member can be removed from the Court by a majority of two thirds of the members, but only for cause.


Process

Trials before the Constitutional Court are adversarial and mostly follow the rules for conventional civil trials. In theory, trials before the Constitutional Court are oral and public. A complaint before the Court is first assigned to one of the members for case management. The case manager or reporter () directs the preliminary research. An office staffed with about 80 specialists and assistants is attached to the Court to aid reporters in this task. Once the preliminary investigation is complete, a date for oral argument is set and announced in the
Wiener Zeitung ''Wiener Zeitung'' () is an Austrian newspaper. First published as the ''Wiennerisches Diarium'' in 1703, it is one of the oldest newspapers in the world. Until April 2023, it was the official gazette of the government of the Republic of Austria ...
, the Austrian
government gazette A government gazette (also known as an official gazette, official journal, official newspaper, official monitor or official bulletin) is a periodical publication that has been authorised to publish public or legal notices. It is usually establish ...
. The president takes the chair. In the absence of the president, the vice president takes the chair; in the absence of both, the session is chaired by the oldest regular member. The Court convenes and hears first the official presentation of case and research by the reporter, then the actual argument. The Court then retires to deliberate, reaches a decision, and pronounces the verdict. In practice, the general rule that trials should be oral and public has several broad exceptions and oral argument is rare today. Oral pronouncements are even rarer; deliberation can take considerable time; the verdict is usually just mailed out once it has been reached. The way trials before the Constitutional Court were originally envisioned, all 14 members should usually be present for argument and deliberation. The actual quorum, however, is either 9 members or 5 members, depending on the specifics of the case. The large percentage of cases that can be decided by only 5 members and the Court's increasing workload have led the Court to create a system of so-called Small Senates (); few cases today are handled by a true plenary session. This development is controversial. Cases are decided by a simple majority of the members. The chair does not vote but does break ties. Verdicts tend to be concise. The total length of the typical verdict is between 5 and 50 pages, with the actual opinion running to between 2 and 10 pages. Only the actual verdict is published; there are no dissenting or concurring opinions. The language is academic and dry. The Court addresses itself more to the legal community than to the general public; instead of reiterating existing court opinions and scholarly publications at any length, it simply references them.


The Court in practice

The workload of the Constitutional Court has been increasing steadily throughout the years. In 1950, a total of 303 cases were brought before the Court; in 1981, there were 694. The Court had to adjudicate on approximately 4400 disputes in 2011 and on exactly 4674 in 2012. About half of these cases involved alleged violations of constitutional rights by the
executive branch The executive branch is the part of government which executes or enforces the law. Function The scope of executive power varies greatly depending on the political context in which it emerges, and it can change over time in a given country. In ...
. Until 2014, certain types of administrative misconduct had to be brought before the Constitutional Court as opposed to the administrative courts; a 2015 reform that greatly expanded the administrative court system and ended the Constitutional Court's
original jurisdiction In common law legal systems, original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision. India In India, the S ...
in these disputes greatly alleviated matters. Another significant part of the Court's workload are demarcation issues. The Austrian constitution stipulates
federalism Federalism is a mode of government that combines a general level of government (a central or federal government) with a regional level of sub-unit governments (e.g., provinces, State (sub-national), states, Canton (administrative division), ca ...
in theory but more or less unitary rule in practice, in a way that presents legislators with a number of unique and complex technical challenges. The Court has historically shown significant
judicial restraint Judicial restraint is a judicial interpretation that recommends favoring the ''status quo'' in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of '' stare decisis'' (that new de ...
and has taken non-interventionist positions on politically sensitive subjects. To some degree, this is as a result of "depoliticization through politicization":
Social Democrats Social democracy is a social, economic, and political philosophy within socialism that supports political and economic democracy and a gradualist, reformist, and democratic approach toward achieving social equality. In modern practice, s ...
and People's Party, the two camps that used to dominate Austrian politics for decades, negotiated an informal but explicit split of the seats on the Court, making sure that neither camp would ever decisively outnumber the other. Partly as an expression of its policy of restraint and non-interventionism, partly due to a strong local tradition of
legal positivism In jurisprudence (also known as legal philosophy), legal positivism is the theory that the existence of the law and its content depend on social facts, such as acts of legislation, judicial decisions, and customs, rather than on morality. This con ...
, the Court used to strongly lean towards grammatical interpretation () until the early 1980s. Today, the Court often uses a teleological approach similar to that of the
German German(s) may refer to: * Germany, the country of the Germans and German things **Germania (Roman era) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizenship in Germany, see also Ge ...
Federal Constitutional Court The Federal Constitutional Court ( ; abbreviated: ) is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law () of Germany. Since its inception with the beginning of the post-W ...
. The Court is powerful but the Austrian constitution is relatively easy to amend, which has often allowed the legislature to overrule the Court. As a result, political scientists rate Austrian judicial review as "medium strength" even though the Austrian-style centralized model generally tends to result in judicial review.


History


Habsburg Empire

The predecessor of the Constitutional Court was the Imperial Court () established by the 1867
December Constitution The December Constitution (German: ''Dezemberverfassung'') is a set of six acts that served as the constitution of the Cisleithanian half of Austria-Hungary. The acts were proclaimed by Emperor Franz Joseph on 21 December 1867 and functioned as the ...
. The Imperial Court decided demarcation conflicts between courts and the bureaucracy, between its constituent crown lands, and between one of the crown lands and the empire itself. It also adjudicated on liability claims raised by crown lands against each other, by a crown land against the empire, by the empire against a crown land, or by a person, corporation, or municipality against a crown land or the empire. Last but not least, the Imperial Court also heard complaints of citizens who alleged to have been violated in their constitutional rights, although its powers were not cassatory: it could only vindicate the complainant by the government to be in the wrong, not by actually voiding its wrongful decisions. The Imperial Court did not yet have the power of judicial review of legislation. Another Court the December Constitution established was the State Court (); the State Court held the emperor's ministers accountable for political misconduct committed in office. This was an oblique and roundabout way of keeping the emperor himself in check. The emperor could not be taken to court, but under the terms of the Law on the Responsibility of Ministers () of 1867 he was no longer an autocrat; many of his decrees and injunctions now depended on the relevant minister to countersign them. The double-pronged approach of making the emperor dependent on his ministers and also making ministers criminally liable for bad outcomes would both enable and motivate the ministers to put pressure on the monarch. The statute in question actually predates the Constitution by a few months, but the Constitution conspicuously failed to abrogate it; it expressly confirmed both the legal inviolability of the person of the emperor and the criminal liability of ministers for violations of the law. Both courts existed until the collapse of
Austria-Hungary Austria-Hungary, also referred to as the Austro-Hungarian Empire, the Dual Monarchy or the Habsburg Monarchy, was a multi-national constitutional monarchy in Central Europe#Before World War I, Central Europe between 1867 and 1918. A military ...
in 1918, although nobody was ever actually charged before the State Court.


Early First Republic

When the empire disintegrated, the provisional government of the emerging Austrian rump state disbanded the State Court, which had never convened anyway, and transferred its responsibilities to a special committee of the Provisional National Assembly. A few weeks later, it renamed the Imperial Court to Constitutional Court (). Another few months later, the government transferred the responsibilities of the former State Court to the Constitutional Court and also gave the Constitutional Court cassatory power: from now on, the Court could not just the unconstitutionality of an administrative decision but could actually annul it, sending complainant and defendant back to square one. The provisional government also created an Election Court () meant to handle complaints regarding the upcoming Constituent National Assembly election. The new, permanent Kelsen Constitution of 1920 finally gave the Constitutional Court the power of judicial review of legislation. The Constitutional Court was now able to void ordinances that violated the law and laws that violated the constitution. It also acquired responsibility for handling election complaints; the new constitution did not retain the Election Court. The Constitutional Court could be asked to review legislation by other courts or by national or provincial cabinets; it could not yet be invoked by private individuals. The Court was also not yet charged with judicial review of international treaties. Under the terms of the Constitution of 1920, the president, the vice president, half the ordinary members, and half the substitute members of the Court were elected by the National Council; the remaining ordinary and substitute members were elected by the
Federal Council Federal Council may refer to: Governmental bodies * Federal Council of Australasia, a forerunner to the current Commonwealth of Australia * Federal Council of Austria, the upper house of the Austrian federal parliament * Federal Council of German ...
. There were no incompatibility provisions that prevented sitting legislators or cabinet members from being appointed to the Court; there were also no provisions requiring that prospective members of the Court have any formal legal education. Austria's political parties instantly stuffed the bench with reliable party troopers. The first formal agreement apportioning seats to factions was reached as early as February 1919, some twenty months before the constitution actually entered into force.


Descent into Fascism

The
Austrofascist The Fatherland Front (, VF) was the right-wing conservative, authoritarian, nationalist, corporatist, fascist and Catholic ruling political organisation of the Federal State of Austria. It claimed to be a nonpartisan movement, and aimed to unit ...
Heimwehr The Heimwehr (, ) or Heimatschutz (, ) was a nationalist, initially paramilitary group that operated in the First Austrian Republic from 1920 to 1936. It was similar in methods, organization, and ideology to the Freikorps in Germany. The Heimwe ...
movement was dissatisfied with the Constitution of 1920, which established Austria as a
parliamentary republic A parliamentary republic is a republic that operates under a parliamentary system of government where the Executive (government), executive branch (the government) derives its legitimacy from and is accountable to the legislature (the parliament). ...
that was a federation in name but unitary in practice. Inspired by
Benito Mussolini Benito Amilcare Andrea Mussolini (29 July 188328 April 1945) was an Italian politician and journalist who, upon assuming office as Prime Minister of Italy, Prime Minister, became the dictator of Fascist Italy from the March on Rome in 1922 un ...
's
Fascist Italy Fascist Italy () is a term which is used in historiography to describe the Kingdom of Italy between 1922 and 1943, when Benito Mussolini and the National Fascist Party controlled the country, transforming it into a totalitarian dictatorship. Th ...
and
Miklós Horthy Miklós Horthy de Nagybánya (18 June 1868 – 9 February 1957) was a Hungarian admiral and statesman who was the Regent of Hungary, regent of the Kingdom of Hungary (1920–1946), Kingdom of Hungary Hungary between the World Wars, during the ...
's Regency Hungary, the Heimwehr envisioned a country with a strongman leader answerable not to the legislature but only to the people. In the Austrian context, this would require a move to a
presidential system A presidential, strong-president, or single-executive system (sometimes also congressional system) is a form of government in which a head of government (usually titled " president") heads an executive branch that derives its authority and l ...
. Another thing the Heimwehr wanted was real, effective federalism. By early 1929, the Heimwehr had grown strong enough to force its democratic opponents into negotiations regarding constitutional reform. When the Heimwehr demanded that control of Constitutional Court appointments be taken away from the legislature and handed to the
president President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university *President (government title) President may also refer to: Arts and entertainment Film and television *'' Præsident ...
and to the provinces, it could cite the need for "depoliticization ()" as a pretext. Given the undeniably bad shape the Court was in, the democratic parties were in no position to object. The compromise that was eventually reached was essentially as follows: * president, vice president, six ordinary members, and three substitute members appointed by the president on nomination of the cabinet; * three members and two substitute members appointed on nomination of the National Council; * two members and two substitute members appointed on nomination of the Federal Council; * sitting legislators, other high-ranking elected officials, and party executives ineligible; * members nominated by the cabinet must have graduated from law school and must have worked in a legal profession; * at least three members and two substitute members must not be living in
Vienna Vienna ( ; ; ) is the capital city, capital, List of largest cities in Austria, most populous city, and one of Federal states of Austria, nine federal states of Austria. It is Austria's primate city, with just over two million inhabitants. ...
. The compromise became part of the Constitutional Reform of 1929. The immediate result was not depoliticization, however, but politicization in a different direction (""). All existing members of the Constitutional Court, ironically including
Hans Kelsen Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian and later American jurist, legal philosopher and political philosopher. He is known principally for his theory of law, which he named the " pure theory of law (''Reine Rechts ...
himself, were purged and replaced. By early 1932, the Austrofascists had gained control of the cabinet, but their majority in the National Council was paper-thin and likely to disappear entirely. When a procedural mishap caused a session of the National Council to disperse without formally having been closed, the Austrofascists grabbed the opportunity to claim that the parliament had " eliminated itself" and ordered police to prevent the National Council from convening again. When the cabinet's actions were challenged before the Constitutional Court, the Austrofascists used the cabinet's power to enact emergency legislation – created during
World War I World War I or the First World War (28 July 1914 – 11 November 1918), also known as the Great War, was a World war, global conflict between two coalitions: the Allies of World War I, Allies (or Entente) and the Central Powers. Fighting to ...
in order to deal with wartime economic upheaval but technically still on the books – to cripple the Court. The cabinet amended Constitutional Court procedure such that the departure of just one or two of its members would prevent the Court from convening, then had its sympathizers on the Court resign their seats. The Austrofascist constitution of 1934 merged the Constitutional Court and the
Supreme Administrative Court A supreme administrative court is the highest court in a country with jurisdiction over lower administrative courts and the administrative decisions of the authorities, but not the legislative decisions (laws) made by the government (which are unde ...
to create the Federal Court (). In theory, the Federal Court retained the power of judicial review of legislation, both secondary and primary. In practice, the Court's ability to void illegal ordinances and unconstitutional statutes was meaningless under the new regime. The cabinet, now supported by obvious precedent, still reserved the right to enact law, including constitutional law, and could therefore overrule the Court at will. In any case, only reliable Austrofascists were now appointed to the bench. The Federal Court survived the integration of Austria into Nazi Germany in 1938 and, in its capacity as an administrative court, continued to operate until 1945.


Second Republic

Following the liberation of Austria from Nazi rule in 1945, the provisional government of the
Second Austrian Republic The history of Austria covers the history of Austria and its predecessor states. In the late Iron Age Austria was occupied by people of the Hallstatt Celtic culture ( 800 BC), they first organized as a Celtic kingdom referred to by the Romans a ...
decided to reinstate the body of constitutional law that had existed immediately before the Austrofascist takeover of March 1933. The Constitutional Court was thus reestablished with the appointment rules of 1929. Once again, the two dominant political parties quickly reached an agreement regarding Constitutional Court nominations that prevented either camp from gaining a strong upper hand. Each party would effectively own a share of the seats. Retiring
Social Democratic Social democracy is a Social philosophy, social, Economic ideology, economic, and political philosophy within socialism that supports Democracy, political and economic democracy and a gradualist, reformist, and democratic approach toward achi ...
members would be replaced by other Social Democratic members; the People's Party would get to replace retiring People's Party justices. This time, however, the arrangement actually did create a balanced tribunal with a reputation for independence and quality scholarship; the somewhat paradoxical process has been referred to as "depoliticization through politicization". As a result, the Court has tended to take non-interventionist positions on politically sensitive issues; it has generally shown considerable
judicial restraint Judicial restraint is a judicial interpretation that recommends favoring the ''status quo'' in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of '' stare decisis'' (that new de ...
. Over the course of the following decades, the purview of the Constitutional Court was materially extended several times. In 1958, the Court's power to review the conduct of elections was expanded to include elections on the provincial and municipal levels. Since 1964, the Court has had the power to review international treaties. A reform in 1974 finally established a right of private individuals, and not just other arms of state power, to challenge statutes and ordinances before the Court.


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* {{Authority control Courts in Austria
Austria Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...
Human rights courts 1920 establishments in Austria Courts and tribunals established in 1920