Austrian Constitutional Court Research Articles

Prawnokarne ujęcie eutanazji w Austrii – uwagi do orzeczenia austriackiego Trybunału Konstytucyjnego z 11.12.2020 r., G 139/2019

International organisations consistently refuse to take a stand on worldview issues, leaving relevant rulemaking to domestic legislatures. Therefore, it is the state’s privilege and responsibility at the same time to develop legal regulations in this field. Progress in medicine and steadily growing life expectancy have caused the issues of in vitro fertilisation, abortion and euthanasia to be of more import. On 11 December 2020, the Austrian Constitutional Court issued a judgment (in G 139/2019) which may be deemed groundbreaking for the admissibility of euthanasia in Austria. This ruling may also be significant for legal systems in other count ries. Therefore, this paper takes as its subject-matter the aforementioned judgment of the Austrian Constitutional Court. The objective was to analyse it and its legal effects. The research question was formulated as follows: what changes will the judgment of the Austrian Constitutional Court of 11 December 2020 in G 139/2019 bring in Austria’s criminal legal reaction to euthanasia? The article describes the provisions applicable in Austria which penalise crimes against life, presents the historical background of assisted suicide in Austrian law, analyses the ruling of the Austrian Constitutional Court, and draws final conclusions. The most important conclusions arising from the research are that one must continuously review whether the provisions of criminal law concerning crimes against life are adequate to the current reality and that the potential admissibility of euthanasia inextricably involves further changes to the law – the lawmakers would have to specify its legal conditions and regulate the procedure itself.

Support for affirmative actions to increase inclusivity of intersex* persons at an Austrian medical university

BackgroundSince the ruling handed down by the Austrian Constitutional Court in 2018 intersex variation has been recognized under Austrian law as a “third sex”. In order to ensure that people with intersex variation are not discriminated against based on their group membership affirmative actions (i.e., proactive practices to avert discrimination) can be implemented. The current study explored whether students and employees at an Austrian medical university know about intersex variation. Furthermore, the study investigated what affirmative actions are practiced at the medical university to be inclusive for intersex persons and students’ and employees’ support for such affirmative actions.MethodsAll students and employees of a medical university in Austria were invited by e-mail to participate at the current study that included a self-constructed knowledge test on intersex variation with ten true-false questions. On five-point Likert scales participants reported for each of twelve listed affirmative actions whether they had seen a certain affirmative action at their university and how important they thought the implementation of an affirmative action was. Finally, participants’ gender, age, sexual orientation, highest level of education, and nationality was assessed. A cluster analysis was performed to determine groups of people with different degrees of support for affirmative actions for intersex persons.Results220 students (62% cisgender women, 38% cisgender men) and 200 employees (72% cisgender women, 28% cisgender men) participated. Participants responded correctly to three out of ten knowledge test questions. The cluster analysis revealed that participants could be clustered as heterosexual cisgender women (Cluster 1; 55%), heterosexual cisgender men (Cluster 2; 30%), or sexual minority cisgender women and men (Cluster 3; 15%). Sexual minority persons knew more about intersex variation than did heterosexual participants. On average, affirmative actions for the inclusivity of intersex people have not been encountered (M = 1.5, SD = 0.4) at the studied university. Participants, especially those in Cluster 3, believed that the listed actions are moderately important.ConclusionsAt the medical university many actions should be taken to increase inclusivity for intersex people. Increasing the knowledge of university staff and students concerning intersex might help increase their support for such actions.

A Model for the World: The Austrian Constitutional Court Turns 100

Abstract The design of constitutional courts usually shows a specific concern for independence from political actors and for pluralism on the bench. We argue that many institutional features of today’s constitutional courts can be traced back to the Austrian Constitutional Court (the first of its kind, which celebrated 100 years in 2020) and even further still to its predecessor, the Austrian Imperial Court of Justice of 1867. Strikingly, judicial independence is to be guaranteed against the existing judiciary as well, which is why constitutional courts often stand apart from the traditional judicial bureaucracy. Pluralism on the bench is to be ensured by specific criteria of eligibility, opening the constitutional court judgeship to a wider set of candidates (eg, attorneys, professors, civil servants), but also via institutional arrangements that make it easy for outsiders to join the court in the first place (eg, by allowing to continue one’s job or by not requiring residence at the court’s seat). Recounting the story of the Austrian model of constitutional adjudication in an unprecedented attempt to combine Austrian legal history with the structure and process of today’s constitutional courts around the world, this paper also highlights how relatively minor features of court organization contribute to the overarching goal of ensuring the independence of the court and pluralism within the court.

GRANICE KRYMINALIZACJI POMOCY DO SAMOBÓJSTWA – UWAGI NA TLE ORZECZENIA AUSTRIACKIEGO TRYBUNAŁU KONSTYTUCYJNEGO Z 11 GRUDNIA 2020 R. (SYGN. G 139/2019-71)

The article deals with the issue of limits of the criminalisation of assisted suicide. The reason for addressing this issue is the finding of the Austrian Constitutional Court on 11 December 2020 (ref. G 139/2019-71), in which the Austrian criminal provision penalising assisting another person to commit suicide (Section 78 of the Austrian Criminal Code) was unexpectedly declared unconstitutional. The Court not only confirmed that everyone’s right to autonomous and independent decision-making in matters of personal life includes the decision as to the time and manner of a dignified death, but also decided whether an individual’s right to selfdetermination includes obtaining the assistance of another person to undertake a suicidal act. The resolution of this issue is of universal significance – including for the Polish legal order, in which assisted suicide is currently penalised without exception. The aim of the paper is not only to provide an overview of the grounds for the finding and explain the limits of criminal liability under the revised Section 78 of the Austrian Criminal Code, but in particular to resolve the question of the admissibility and legitimacy of decriminalising assistance to suicide to the extent adopted in Austrian law, which may also provide some inspiration for the Polish legislator. The study uses a formal-dogmatic method of research, which is determined by its subject. In the final conclusions it was indicated that the Austrian legislator cautiously liberalized the prohibition of assisted suicide, which, however, is not without some controversy.

Self-Citations and Citations to European Constitutional Courts by the Austrian Constitutional Court

The Austrian Constitutional Court (VfGH) cites – frequently itself, but also other (constitutional) courts. This article describes comprehensively the citation behavior of the VfGH based on both citations of its own case law and citations of foreign case law, meaning citations to the European Court of Human Rights (ECtHR), the European Court of Justice (ECJ) and other national constitutional courts of Member States of the European Union. This allows an innovative identification of so-called leading cases. With regard to self-citations, we identify key decisions that have shaped the jurisprudence of the VfGH. The identification of the 20 most frequently cited decisions of the ECtHR and the ECJ also provides an insight into the evolution of Austria’s legal integration in Europe using the example of the case law of the VfGH. The data shows that, apart from the ECtHR and the CJEU, only the German Federal Constitutional Court plays a – albeit small – role in the case law of the VfGH. The VfGH makes almost no reference to other European constitutional courts.

Access to Justice vis-à-vis Immunities: The Austrian Constitutional Court’s OPEC judgment

Access to Justice vis-à-vis Immunities: The Austrian Constitutional Court’s OPEC judgment

Do populist parties in government produce unconstitutional policies? Evidence from Austria, 1980–2021

AbstractIn a rising number of countries, populist parties participate in coalition governments. While there exists a consensus that populism is incompatible with core tenets of liberal democracy on a conceptual level, we know much less about whether or not the participation of populist parties in government constitutes a threat to liberal democracy in practice. We study the impact of populist parties in coalition governments using a novel dataset of more than 2000 laws that were under review at the Austrian Constitutional Court between 1980 and 2021. We provide evidence that the court did not find laws passed by governments that included a populist party unconstitutional more often than those passed by non‐populist governments. Our findings indicate that the Austrian Freedom Party did moderate its policy while in office. The results imply that it is necessary to distinguish policy positions in party manifestos and party rhetoric from policies actually implemented by governments.

Enforcing Constitutional Sustainability Clauses in the Age of the Climate Crisis: Insights from Social Contract Theory on How to Take Account of Future Generations

Abstract Climate change is one of the most alarming events today, which will very likely have devastating effects on a lot of people worldwide. This paper addresses the question as to how constitutional sustainability clauses can be enforced in the age of the climate crisis. It does so by looking into some difficulties of making the notion of future generations operable. First, the paper will briefly analyze two decisions by the Austrian Constitutional Court and the Norwegian Supreme Court, which have both rejected claims based on constitutional sustainability clauses referring to future generations. This is juxtaposed with a recent decision by the Federal Constitutional Court of Germany which invigorated Article 20a of the German Basic Law and thereby also future generations. Second, this paper aims at shedding light on the notion of future generations by looking into philosophical debates on the so-called non-identity problem. The question as to how to include future generations in the social contract and selected philosophical strategies to address it are discussed and introduced to the legal discourse. This seems to be a worthwhile goal as by now several scholars from various disciplines such as geography, political science, and applied ecology have opened up a debate on the role of social contracts concerning climate change. This paper seeks to further the debate by aiming to suggest a connection between philosophical social contract reasoning and constitutional sustainability clauses taking the example of Austria, Norway, and Germany.

Views on Assisted Suicide and Religious Beliefs.

After the Austrian constitutional court decided to legalise assisted suicide, we conducted this cross-sectional survey study to assess how persons living in Austria viewed the decision, and whether their views associated with religious and/or moral beliefs. We found that persons claiming to be religious were significantly less likely to approve of the court's decision. They also advocated for significantly stricter regulations than non-religious respondents. When asked to give reasons for their response, several religious respondents cited their religious beliefs, highlighting that there is often an association between stronger religious beliefs and less favourable views on assisted suicide.

The Recent Trend of the Same-Sex Marriage and Same-Sex Partnership in Europe

This paper reviews the recent trend of the same-sex marriage and same-sex partnership in Europe and analyzes the implication thereof for the Korean Law. In 2015, the decision of Oliari v. Italy by the European Court of Human Rights opined that Article 12 of the European Convention on Human Rights (Right to marry) did not guarantee the right to marry for same-sex couples. However, it declared that Italy bore the positive obligation to provide the legal institution for the protection of the same-sex couple based on the Article 8 of the European Convention on Human Rights (Right to respect for private and family life). In July 2017, Germany enacted new law permitting same-sex marriage. There was controversy whether it was unconstitutional. However, even the state of Bavaria, the most conservative one, gave up the plan to raise the constitutional complaint against the new law. In December 2017, the Austrian Constitutional Court declared that the prohibition of same-sex marriage was unconstitutional in Austria. However, this decision was much criticized, as it was contradictory to the precedents of the Austrian Constitutional Court and the European Court of Human Rights. Looking at the Korean Law, against the backdrop, the Korean Civil Code does not permit the same-sex marriage. Nor can it be said that this is unconstitutional. However, the law should be changed to recognize the same-sex marriage, based on the constitutional right to pursue happiness.

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

Il reato di aiuto al suicidio al vaglio della Corte costituzionale austriaca

By means of the decision of 11 th December 2020, the Austrian Constitutional Court ruled § 78 StGB, II sentence unconstitutional, in that it absolutely bars medical assistance in dying. According to the Constitutional Court, the right to self-determination encompasses the faculty to decide in autonomy when and how to terminate life free from interferences by State authorities. In the essay I briefly compare this decision with the principles expressed by the Italian and German Constitutional Courts in their case-law.

Constitutional Review Complaint as an Evolution of the Kelsenian Model

Abstract A centralized constitutional review system, generally known as the Austrian Constitutional Court model established in 1920 by Hans Kelsen, has spread globally after World War II and is now the most active constitutional tribunal in Europe. Interestingly, although the Constitutional Court of Korea was classified as this Kelsenian model, besides a typical kind of constitutional review procedure, the Court runs an additional procedure for the constitutional review of legislation. The latter has some comparatively special and unusual requirements and procedure, but the statistics indicate it has been actively used. It takes the form of a constitutional complaint, but in practice, it is treated as the second type of constitutional review of legislation in Korean constitutional adjudication. Through this special procedure, individuals appear to participate in a tripartite conversation on constitutional interpretation along with the judicial branch and the Constitutional Court. Moreover, to some extent, this sui generis complaint is perceived to make up for the prohibition of constitutional complaint on judgments of ordinary courts (‘Urteilsbeschwerde’) in Korea. In Austria, the individual complaint on constitutional review of statutes was introduced by a constitutional amendment in 2013, whereby the individual parties of the pending cases are entitled to file a constitutional review with the Constitutional Court as of 1 January 2015. In terms of enabling the individual party to request to the Constitutional Court for constitutional review of legislation, the Austrian new complaint is similar to the Korean one, but their requirements and procedures are different. From the perspective of enhanced individual access to the Constitutional Court, however, both complaints may be viewed as an evolution of the Kelsenian model to meet the demands of the times. In this regard, the Korean practice for over three decades may provide useful insights into the implementation of a new practice and further improvement in Austria. This article will examine the Korean ‘Constitutional Review Complaint’ and compare it with the Austrian ‘Gesetzesbeschwerde (Parteiantrag auf Normenkontrolle)’ to explore mutual references that will help improve both institutions. Then, I will assess what this kind of evolutionary invention of the constitutional review implies to the centennial of the Austrian model.

Idiosyncratic Constitutional Review in Cyprus: (Re-)Design, Survival and Kelsen

Abstract The model of the Austrian Constitutional Court, with its Kelsenian origins, has been influential in the Cypriot constitutional context in a variety of intertwined and changing ways. The initial constitutional design followed the centralized and concentrated constitutional review by the Supreme Constitutional Court. The collapse of the bi-communal structure of the Cypriot system resulted in the application of the law of necessity and the establishment of a new Supreme Court with a simultaneous decentralization of constitutional review. At the time of writing a new reform initiative is underway, and the discussion about the Austrian model and Kelsen is revived. The continuous and varied influence from the Austrian prototype and interestingly the Kelsenian logic is assessed while recognizing the delicate idiosyncrasies of the Cypriot setting. The argument is that at neither stage the Austrian model was purely applied in Cyprus and the systemic adjustments were the result of improvisation rather than model adherence. This paper highlights the inconsistencies in the understanding of the Austrian model and explains the ‘modelling vertigo’.

Die Kompetenzverteilung in der Judikatur des österreichischen Verfassungsgerichtshofs

The Austrian Constitutional Court has dealt extensively with the fragmented allocation of competences, which it considers a key element of federalism and thus of one of the leading constitutional principles. Over the past century, the Constitutional Court has developed several methods and strategies – rather than theories – in order to determine the exact meaning of the allocated competences. Among these different, sometimes contested approaches, an originalist method prevails. While the case law is neither particularly centralistic nor favourable towards federalism, the Constitutional Court nevertheless has contributed a great deal to the understanding of the competences in the Austrian federal system.

From the Federalist Papers to Hans Kelsen’s “Dearest Child”: The Genesis of the Austrian Constitutional Court

This article sketches in broad strokes the genesis of Austrian constitutional jurisdiction in the 1920 Federal Constitutional Act. Beginning with the Constitution of the United States, it provides a review of the long 19^th century, during which legislative review was controversial. It then elaborates which circumstances were decisive for the fact that immediately after the disintegration of the Danube Monarchy, two of its successor states simultaneously introduced the review of constitutionality. Finally, it discusses the impact of Hans Kelsen shaping the Austrian Constitutional Court as an institution more through his judicial activities than through his constitutional drafts.

Le temps qui reste – a Comparative Analysis of the Constitutional Jurisprudence on Suicide Assistance in Germany and Austria

The Austrian Constitutional Court, such as the German Constitutional Court shortly before, has established the right to a self-determined death which includes the right to resort to assistance provided voluntarily by third parties for this purpose. It declared the encompassing criminalisation of assisted suicide under the Austrian Criminal Code (§ 78 variant 2) to be unconstitutional, stressing the importance of individual autonomy with respect to the decision on when and how one’s life should end. The German Constitutional Court declared the recently enacted prohibition of assisted suicide services (§ 217 German Criminal Code) to be unconstitutional. Both judgments provoke multiple legal questions which have to be addressed by the respective legislator when creating and enacting new regulation regarding the issue of assisted suicide.

The Austrian Constitutional Court after 100 Years: Remodelling the Model?

The establishment of the Constitutional Court more than 100 years ago was the beginning of the “Austrian model” of judicial review and marked a new era with the implementation of a centralized system. Throughout the years, this model underwent major and minor changes and continued to evolve. A number of players and developments lead to this dynamic process. This process depended not only on the development of powers or internal influence, but also on the external influence caused by Austria’s accession to the European Union and the impact on the Constitutional Court. Above all, the Constitutional Court itself, with its case law, was a major player in this dynamic transformation over the last decades. This all lead to the “Austrian model” in its current form, which has never been static and has thus become successful.

Imitation, Adaptation, and Further Development: The German Federal Constitutional Court and the Austrian Model

This paper addresses the influence of the Austrian Constitutional Court outside Austria. More particularly, it considers the impact of the regulation of the Constitutional Court in the Federal Constitutional Law of 1920 on the German constitutional order. To do so, the paper first considers the relevance of foreign models in the discussion about constitutional adjudication during the constitution-making process in the Federal Republic of Germany. After that, it analyses the main similarities and differences between the constitutional courts of Austria and Germany. The paper argues that the spread of Austrian-like constitutional courts throughout Europe is based on a complex reception of the Austrian constitutional experience, which can be described as a peculiar combination of imitation, adaptation and change.

The Influence of the Austrian Constitutional Court on the Constitutional Court of the Principality of Liechtenstein

The Constitutional Court of the Principality of Liechtenstein is one of the oldest constitutional courts in the world. Its duties and responsibilities include the constitutional review of laws as well as the review of international treaties and governmental decrees. This paper analyzes the impact of the Austrian model of constitutional review on the standing and tasks of the Constitutional Court within the court system of Liechtenstein. It also describes the influences of the Austrian Constitutional Court’s jurisdiction on the interpretation of Liechtenstein’s constitutional law concerning state organization, fundamental rights and the rank of European law.