1. Introduction
1. Austria regained its full sovereignty
after the Second World War in 1955 and joined the Council of Europe in
1956. It became a member of the European Union in 1995 and is a
member of the eurozone and the Schengen Area since 1997. Austria
has a population of 8.5 million, 98% of whom speak German.
2. The Austrian Constitution states that Austria is a parliamentary
democracy with nine independent federal States (
Länder)
with their own governments. In law
and in practice, the federal and State levels are closely interlinked.
The constitutional powers are shared between a directly elected
President and the bicameral parliament (Federal Assembly) composed
of the National Council (
Nationalrat)
and the Upper House of Parliament, or Federal Council (
Bundesrat), which adopts the federal
legislation. The Austrian President, who has extensive powers granted
by the Austrian Constitution,
plays the role of an impartial mediator.
In practice, since 1945, the role of the President has been rather
ceremonial, acting mostly upon the request of the government. On
22 May 2016, Dr Alexander van der Bellen, a former member and Chair
of the Green Party, was elected as the new federal President with
50.3% of the votes. The Freedom Party candidate, Norbert Hofer,
lost by just 30 863 votes. His party challenged the result, arguing
that postal votes had been illegally and improperly handled. On
1 July 2016, the Constitutional Court of Austria ruled in favour
of this complaint and annulled the result of the second round of
the presidential election. In the re-run of the second round held
on 4 December 2016, Alexander van der Bellen was elected President
of the Republic with 53% of the votes.
3. The 183 members of the National Council are elected for a
five-year mandate, through direct elections organised in nine constituencies
(from seven to 36 seats each, based on population) corresponding
to the country's federal States (
Länder),
which are divided into a total of 43 regional constituencies. There
is a closed party-list system with proportional representation applying
the Hare method to the regional and provincial constituencies, and
the D'Hondt method at the federal level.
The electoral threshold to enter
parliament is 4%, although a party that fails to reach this mark
may still gain representation if it wins at least one seat in a
regional election. Women represent 30.6% of the current parliament.
4. The Federal Council (
Bundesrat)
currently has 61 members, indirectly elected at the level of the
federal States (
Länder): it
is up to the President of the Republic to determine the total number
of members in the Federal Council as well as the allocation of seats
to each of the nine federal States. Depending on the ratio between
each federal State and the one with the largest population (based
on the last census), each State elects at least three representatives
and at most 12. The term of office of councillors varies from five
to six years, depending on the State they represent; they are partially
renewed after the federal State elections. The seats are divided
between the parties according to the number of seats they hold in
the federal State assemblies, which are determined on the basis
of proportional representation. The proportion of women in the Federal
Council is currently 29.51%.
5. The last elections for the National Council took place on
29 September 2013. Since then, the country has been ruled by a grand
coalition government formed by the centre-left Social Democratic
Party of Austria (SPÖ) (52 seats) and the centre-right Austrian
People's Party (ÖVP) (47 seats). On 16 December 2013, the federal
President, Heinz Fischer, appointed Werner Faymann (SPÖ) Chancellor
and entrusted him with the formation of a new government, which
was reshuffled in September 2014 after the resignation of ÖVP Finance Minister
Vice Chancellor Michael Spindelegger due to a disagreement with
his party. Werner Faymann (SPÖ) resigned on 9 May 2016 from his
position of Chancellor, and SPÖ leader, after the results of the
presidential elections and the loss of support of his party, which
was split, notably over the migration issue. Christian Kern was
sworn in as the new Austrian Chancellor on 17 May 2016 and reshuffled
the government with three new ministers and a new State Secretary.
6. The 2013 elections saw the consolidation of the (far right)
Freedom Party (FPÖ), which gained 40 seats. The party had campaigned
to leave the European Stability Mechanism bailout fund for ailing
eurozone members. Two new parties entered parliament: the Team Stronach
for Austria (FRANK), led by Austro-Canadian businessman Frank Stronach
(11 seats), which called for a flat-rate tax, and the Neos-New Austria (NEOS),
led by Matthias Strolz (9 seats). The Stronach political faction
currently has six members, after five members of the original Team
Stronach joined the ÖVP faction.
7. The migration crisis and the surge in asylum seekers sparked
tensions in the ruling coalition of Social Democrats and the People’s
Party, in particular about the country’s largest refugee “reception
centre” in Traiskirchen which had exceeded its capacity, leading
Interior Minister Johanna Mikl-Leitner (People’s Party) to build
tents as temporary accommodation and to negotiate a deal with the
neighbouring Slovak Republic to take up to 500 refugees. To alleviate
the crisis, the then Chancellor Fayman proposed a geographical distribution
of refugees across Austria. This step has however been fiercely
opposed by the People’s Party and their State governors (currently
heading six of the country’s nine federal States): they rejected
the idea of a quota for further distribution of refugees or opening
more reception centres.
I shall elaborate
on the issue of refugees later in this report (see section 4.2).
8. This periodic report was drafted in line with
Resolution 2018 (2014) and the explanatory memorandum approved by the Monitoring
Committee on 17 March 2015.
It will review the challenges faced
by Austria in the field of the rule of law, democracy and human
rights, based on the most recent findings of the monitoring mechanisms
of the main Council of Europe conventions, the findings of the Parliamentary
Assembly and the Council of Europe Commissioner for Human Rights
and, when relevant, the reports prepared by other international
instances and representatives of civil society and non-governmental
organisations (NGOs). I should underline that Austria is a well-established
and vivid democracy, based on a federal system, with a high level
of protection of human rights and, overall, well-functioning democratic
institutions. In the light of the conclusions of the Council of
Europe monitoring mechanisms, I believe that some issues could be
debated and further improved in the field of democracy, the rule
of law and human rights.
2. Democracy
9. Austria is a federal State
composed of 9 Länder and 2 357
municipalities, i.e. 15 cities with their own historical statutes
(Statutarstädte), 198 towns
(Stadtgemeinden), 759 municipalities
(Marktgemeinden) and 1 385
villages (Ortsgemeinden).
Austria ratified the European Charter on Local Self-Government (ETS No. 122)
on 23 September 1987. In its Recommendation 302 (2011) on local
and regional democracy in Austria, the Council of Europe Congress
of Local and Regional Authorities highlighted the existence of a
“co-operative federalism”,
which is a key element of the Austrian federal system, implying
that all changes to the powers of local governments are carried
out through both formal and informal consultation mechanisms between
municipalities, federated States (Länder)
and the federation.
10. Nevertheless, the Congress urged Austria to consider an overall
institutional reform of its federal system in order to ensure its
continuing efficiency and acceptance by the population. It recommended
that reforms should concentrate,
inter
alia, on modifying the composition and functions of the
Federal Council in order to make it better suited to representing
Länder interests; transforming the
system of indirect federal administration to direct
Land administration; introducing
regional administrative courts and modifying the division of powers; allowing
municipalities to participate in agreements between the federation
and the
Länder as foreseen
by Article 15a of the Federal Constitution; and taking concrete
measures to encourage better representation of women at local and
regional level.
11. The Austrian Parliament adopted, in June 2012, a reform of
the administrative court system in Austria (which entered into effect
in 2014), establishing a federal administrative court as well as
an administrative court
(Landesverwaltungsgericht) in
each of the federal States. Complaints against decisions of public
authorities at the State or federal levels can now be brought before
these administrative courts, with a possibility of appeal to the
Supreme Administrative Court or the Constitutional Court.
12. In the view of the Congress, Austria should also clarify the
competences of each level of government (municipalities, federated
States and the federation), in order to grant municipalities and
Länder larger tax autonomy allowing
them to raise an increasing amount of own
-source
taxes, and make sure that when their competences are extended, this
is followed by the allocation of the necessary financial resources.
13. Austria has not signed the
Additional
Protocol to the European Charter of Local Self
-Government on the right to participate
in the affairs of a local authority (CETS No. 207), although Article
117.8 of the Federal Constitution determines that the legislation
of the
Länder can foresee
the direct participation of the citizens. The Austrian authorities
are encouraged to sign and ratify this additional protocol.
3. Rule
of law
3.1. Fight
against corruption and money laundering
14. Austria has faced a series
of corruption scandals in recent years and suspicions of bribery,
even at the level of Austria's central bank. Former Interior Minister
and Austrian MEP, Ernst Strasser, was sentenced to a four-year prison
term for bribery in 2013 after being caught on camera offering to
amend European legislation in return for cash.
Three former
Telekom Austria managers were sentenced to jail in February for
share-price manipulation.
In addition, the former Minister
of Finance, Karl-Heinz Grasser, is currently the subject of a dozen
investigation procedures, including the Hypo Alpe-Adria-Bank case
and concerning the privatisation of State-owned companies. According
to the 2013 Special Eurobarometer on corruption, 66% of Austrians
agree that corruption is widespread in their country. Almost one
third of respondents stated that they found it acceptable to do
a favour or give a gift in exchange for a public service, which
is the only country in western Europe were such a relatively large
proportion of the population holds such an opinion.
According to the same report, 38%
of business representatives think that corruption is an obstacle
to doing business, and 41% of them think nepotism and patronage
is also problematic in this context.
15. I was informed by the delegation that following the adoption
of the Act on the Establishment of an Account Register and the Access
to Account, an account register should be operational in October
2016 to facilitate access to bank information for tax purposes and
for criminal investigations. Amendments to the Code of Criminal
Procedure were adopted in 2016
which allow the public prosecutor
access to the account register – without a court order. This law
also provides for additional possibilities to trace and detect accounts
in order to execute fines or implement confiscation decisions stemming
from criminal proceedings.
16. In order to comply with the recommendations of the Organisation
for Economic Co-operation and Development (OECD) and the Group of
States against Corruption (GRECO), new legislation was adopted.
In 2012, Austria adopted a new Party Funding Act, revised the tasks
of the Audit Office in supervising party accounts, adopted legislation
on lobbies (in force since 2013) introducing a compulsory register
of lobbying and interest associations and access to this database
on the internet, and amended its Criminal Code and Criminal Procedure
Code. These changes introduced the crime of
Anfüttern –
the offence of offering, promising or granting an advantage that
is not related to a specific official act, such as granting small
favours to “sweeten” a relationship with a public official.
In the 2015 Transparency
International Corruption Perceptions Index, Austria ranks 16 out
of 168 countries, with a score of 76/100,
compared to 25th in 2012, indicating
that the legislative changes are bearing results.
17. Austria ratified the Civil Law Convention on Corruption (ETS
No. 174) in 2006, and the Criminal Law Convention on Corruption
(ETS No. 173) in 2012 and its Additional Protocol (ETS No. 191)
in 2013. In June 2012, GRECO published its Addendum to the Compliance
Report that terminated the First and Second Evaluation Round compliance
procedure in respect of Austria.
In this addendum, GRECO concluded
that 16 of its 24 recommendations to Austria had been implemented
satisfactorily or dealt with in a satisfactory manner.
18. GRECO noted that Austria had made further important progress
in several areas, such as the establishment of the “Public Prosecution
Office for Economic Crime and Corruption”, the introduction of a
new regulatory framework at federal level for the protection of
whistle-blowers and for the movement of federal staff to the private
sector, as well as legal amendments aimed at enhancing transparency
of stock corporations and foundations. While several improvements
mainly concern the federal level and needed to be followed by corresponding
measures at the level of federal States, GRECO noted that the federal
States had been invited to take action themselves, as recommended,
and are currently engaged in a promising reform process.
19. However, GRECO regretted that in several areas the progress
achieved so far, if any, is only partial and more determined action
is needed to carry through the reforms planned or initiated – for
example, the Co-ordinating Body on Combating Corruption, which still
lacks a precise mandate and adequate resources, the economic crime
units of the police are in need of increased human resources and
the regime of parliamentary immunity needs to be changed (see below).
GRECO also awaits further developments with regard to the implementation
of its remaining recommendations pertaining,
inter
alia, to: the involvement of the
Länder and the
private sector in the overall anti-corruption efforts; the adoption
of guidelines related to acts connected to the official functions
of a parliamentarians, to their immunity and the conditions to lift
it; access to information;
regulations on acceptance
of gifts by officials (including elected officials, judges and prosecutors),
including at the level of
Länder;
adoption of a framework to deal with moves of federal employees
to the private sector; the introduction, when necessary, of measures
and appropriate mechanisms to prevent conflicts of interest; and stronger
control of the declarations of assets and interests to be submitted
by parliamentarians and senior members of the executive.
20. The issue of party funding has been hotly debated in Austria.
The European Commission noted that the recent discussions on corruption
in the context of politics had focused on (alleged) bribery of high-ranking political
office-holders and on illegal party funding. Criticism generated
by a number of cases of illegal funding of political parties, such
as the case of a prominent elected public official who was found
guilty of unjust enrichment relating to political interference in
exchange for a donation to his party, led to a series of reform acts.
21. In February 2015, GRECO published its Third Evaluation Round
Compliance Report on Austria related to Incriminations and Transparency
of Party Funding.
GRECO concluded at that time that
Austria had implemented satisfactorily 12 of the 21 recommendations,
and implemented 7 partially. Two recommendations had not been implemented.
In March 2016, GRECO adopted its
Second
Compliance Report on Austria, which was published on 21 October 2016.
GRECO concluded that Austria has now implemented satisfactorily
or dealt with in a satisfactory manner 16 of the 21 recommendations
contained in the Third Round Evaluation Report. Four further recommendations
remain partly implemented and one has not yet been implemented.
22. Further to the ratification of the Criminal Law Convention
on Corruption in 2012 and its additional Protocol in 2013, GRECO
welcomed a number of amendments to align national criminal legislation
with these legal instruments, including,
inter
alia, the incriminations of active and passive bribery
involving a public official or a member of an elected assembly and
the increase in the level of sanctions for private sector bribery,
as well as the recent amendments to Article 153 of the Penal Code
narrowing the scope of the offence of breach of trust.
GRECO also encouraged the
authorities to provide adequate guidance to practitioners on how
to deal with instances involving non-material advantages or advantages
whose value is difficult to evaluate.
23. With regard to political financing, GRECO welcomed the progress
made with the adoption, in 2012, of a new Political Parties Act
that became fully effective in 2013. GRECO considered that Austria
now has country-wide rules which regulate the sources of income
of political parties and (other) campaign participants, which require
the disclosure of financial statements and the subsequent supervision
by the Austrian Court of Audit, with possibilities to impose penalties
in case of a breach of the rules. In addition, the public will have
access to these statements since they will be made available on
the parties’ and the Court of Audit’s websites. However, in its
March 2016 report, GRECO regretted that the immediate disclosure
duty only applies to donations
sensu stricto
and thus does not capture other important forms of support such
as sponsoring and advertising.
24. At the same time, a majority of recommendations have received
only partial follow-up, for instance concerning the applicable accounting
and book-keeping standards, the consolidation of accounts, the availability
of financial information to the general public in a timely manner
and the range of penalties applicable in case of infringements.
Of particular importance is the new control mechanism, which raises
several questions as to its consistency and effectiveness, in particular
due to the absence of real control powers granted to the Court of
Audit. These shortcomings were also pinpointed by the President
of the Court of Audit
and the opposition, which highlighted
that a variety of loopholes still allow political parties to avoid
penalties, and to correct false data at any time or even not to
submit any financial statements at all without facing penalties.
The Court of Audit has to rely on external auditors, appointed by
the parties themselves, to assess financial documents.
25. The representative of the parliamentary opposition regretted
that no sanctions are in place in case of violation of the law on
party funding. He thus considers that further amendments to the
Political Parties Act are long overdue.
In its March
2016 report, GRECO “very much regretted the absence of any further
progress” concerning its recommendation about the need for future
legislation (at the level of the Federation and the
Länder) on the financing of political
parties and election campaigns “that provides for adequate accounting standards”.
Notwithstanding the overall positive results
already achieved by Austria in the reform process, GRECO urges the
authorities to continue this process and to eliminate the remaining
gaps”, which is important for the credibility of the financing of
political life.
26. Concerning the fight against money laundering, Austria ratified
the Convention on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime of 1990 (ETS No. 141) in 1997. It signed
the revised Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime and on the Financing of Terrorism (CETS
No. 198) in 2005 but has not ratified it. Austria recently signed
an agreement with Switzerland and Liechtenstein to recover taxes
generated by properties owned by Austrians and invested in these
countries. Austria is not a member of the Committee of Experts on
the Evaluation of Anti-Money Laundering Measures and the Financing
of Terrorism (MONEYVAL).
3.2. Judgments
of the European Court of Human Rights
27. At 31 December 2015, 135 applications
concerning Austria were pending before a judicial formation.
28. In 2015, the European Court of Human Rights (“the Court”)
dealt with 248 applications concerning Austria, of which 241 were
declared inadmissible or struck out. It delivered eight judgments
(concerning seven applications), five of which found at least one
violation of the European Convention on Human Rights (ETS No. 5,
“the Convention”),
which
concerned the length of procedure (two violations), the right to
a fair trial (one), the right to liberty and security (one), the
right to an effective remedy (one) and the right to respect for private
and family life (one).
29. There are currently no pending cases under enhanced supervision,
while 21 lead cases are being monitored by the Committee of Ministers.
Almost half of them relate to violations
of Article 6.1 of the Convention (excessive length of procedure).
In a welcome development, structural changes to the legal system have
been made to address the excessive length of civil or criminal administrative
proceedings that was found to be a violation of Article 6.1 of the
Convention in
Rambauske v. Austria and
29 other cases.
In the information
provided on 1 October 2015,
Austria indicated that
the Austrian administrative court system had been fundamentally
reorganised with effect from 1 January 2014 to significantly reduce
the workload of the Supreme Administrative Court and the Constitutional
Court of Austria, and address the root causes of the underlying
systemic problem of the unreasonable length of proceedings.
30. Another positive development is related to the execution of
the European Court of Human Rights’ judgment
Frodl
v. Austria, where
the Court found the blanket ban on prisoners’ voting rights was
incompatible with the right to vote enshrined in Article 1 of Protocol
No. 3 to the Convention (ETS No. 45). As a consequence, the Austrian
Parliament passed the Electoral Law Amendment Act in 2011: no prisoner
can now be automatically deprived of the right to vote; a decision
on disenfranchisement has to be taken by a judge based on rules
set out in law, while taking into account the particular circumstances
of the case and having regard to the Convention and the Court’s
case law.
4. Human
rights
4.1. General
considerations about the system of protection of human rights
31. Austria has a well-established
system for promoting and protecting human rights, as noted by the Council
of Europe Commissioner for Human Rights.
There have been
positive developments with regard to the fight against torture and
ill-treatment: Austria ratified the Optional Protocol to the Convention
against Torture and Other Inhuman, Cruel or Degrading Treatment
or Punishment (OP-CAT) on 4 December 2012, and nominated the Austrian
Ombudsman Board as the National Preventive Mechanism against Torture.
32. The Ombudsman Board employs 90 staff members (including representatives
of several federal ministries, offices of regional governments and
NGOs), with a yearly budget of approximately 1.5 million euros to
fund the work of its six regional monitoring commissions (
Besuchskommissionen) and the Human
Rights Advisory Board (
Menschenrechtsbeirat).
The Austrian Ombudsman Board
carries out preventive control and inspections of State-run and
private institutions where there is, or could be, a restriction
of personal liberty, reports on cases of established abuse, makes
recommendations and can report to the National Council and the Federal
Council.
33. The United Nations Committee on the Elimination of Racial
Discrimination raised questions about the independence of the members
of the Austrian Ombudsman Board
and invited the Austrian authorities
to adopt concrete measures to improve their status and ensure that
it is fully in line with the Paris Principles (relating to the Status
of National Institutions) and to allocate the necessary resources.
For
the opposition, the compliance of the appointment of the board members
with the Paris Principles is a crucial issue.
34. A National Action Plan on Human Rights, which was requested
by civil society and international human rights mechanisms, should
be adopted by the end of 2016. Its drafting involved the existing
networks of human rights co-ordinators of all the federal ministries
and the federal States, the Austrian Ombudsman Board, as well as
representatives of civil society and the academic community. This
action plan should create a general framework for thematic national
human rights plans (such as disabilities, integration, violence
against women, human trafficking and gender equality in the employment
market) and develop measures for the areas that are not yet covered.
About 50 projects
were also proposed by the “National Action Plan consultation group” covering
human rights aspects needing further attention, such as children’s
rights, the right to education, the fight against racism and xenophobia
or business and human rights.
There are, however, some concerns
that no budget had been allocated for elaborating, implementing
and evaluating the plan, and the government has objected to conducting
a base-line study.
The authorities consider that there
is sufficient information about human rights challenges available.
They confirmed that no additional resources would be allocated due
to financial constraints: the concrete measures proposed in the
framework of the National Action Plan will be implemented by the
federal ministries and governments of the federal States and funded
by their ordinary budgets.
4.2. Refugees
and asylum seekers
35. Since 1945, more than two million
refugees have come to Austria and more than 700 000 have stayed on.
Austria has for the past years figured
among the top three European Union countries for asylum applications
per capita.
In recent months, Austria has been
confronted with a massive wave of refugees, asylum seekers and migrants,
notably fuelled by the Syrian and other conflicts. The authorities
have estimated that, on average, 6 000 persons came to Austria per
day. From January to October 2015, more than 60 000 applications
for asylum were filed (compared to 28 000 in 2014). In addition,
300 000 refugees that had transited the country were accommodated
in temporary facilitates and taken care of by the government during their
stay on Austrian territory.
Two humanitarian
admission programmes launched in August 2013 and April 2014 helped
1 500 Syrian refugees directly from the crisis region, in addition
to the regular asylum procedure.
36. Austria does not currently have a general refugee resettlement
programme without geographic limitations, as required by the principle
of international burden and responsibility-sharing set out in the
1951 Refugee Convention. In its submission to the United Nations
Universal Review in 2015, Amnesty International regretted
inter alia the lengthy asylum procedures
and restricted access to the labour market, social benefits and
health care. It noted that accommodation for some asylum seekers
was poor and unhygienic, in a number of cases amounting to degrading
treatment.
37. The authorities indicated that more than 11% of the total
number of asylum applications in 2015 were submitted by unaccompanied
minors, amounting to 6 100 applications.
Access to public
schools, free of charge, is guaranteed to refugees and migrants,
including unaccompanied migrant and refugee minors, irrespective
of their legal status.
To promote the
integration of refugees, a new form of apprenticeship was under
preparation, the so-called “voluntary year of integration”.
Austria
also appointed a school mediator for refugees. The European Commission
against Racism and Intolerance (ECRI) suggested that the Austrian principle
of integration from the beginning (see below) benefiting the migrants
should also be applied to the asylum system.
The
Secretary General of the Council of Europe also drew attention to
the at least 10 000 asylum-seeker minors who have disappeared since
the beginning of the crisis,
416
of them in Austria. I note that the Austrian Federal Government
adopted a clear and comprehensive “50 Action Points – A Plan for
the Integration of Persons entitled to Asylum or Subsidiary Protection
in Austria” on 26 January 2016, which should provide for quick and
effective integration of refugee children into the Austrian school
system. This plan addresses the situation of minor refugees, in
many cases unaccompanied minors, who are no longer subject to compulsory
education,
and calls for
the development of conditions to enable this target group to acquire more
comprehensive skills.
38. The efforts undertaken by the authorities to cope with the
massive arrival of refugees and migrants – which is a real challenge
both for the federal State and the federal States – should be lauded.
In September 2015, the Austrian Parliament adopted Constitutional
Law No. 120 related to the “accommodation and distribution of foreigners
in need of help and protection”, which allows the State and the
Länder to require all municipalities
to accommodate refugees, thus restricting the Constitution-based
principle of local autonomy for a period of three years (1 October
2015 to 31 December 2018).
For
the time being, 67% of municipalities do not host refugees.
39. The migration crisis will remain an enormous challenge for
Austria in the coming months. The country received 660 000 refugees
in 2015, among which more than 89 000 filed an application for asylum.
The authorities indicated that, from 5 September 2015 to 31 March
2016, 791 826 persons transited through Austria (mainly to reach
Germany and seek international protection there), while 48 700 applications
for asylum in Austria were made during that period.
On 16 September 2015, Austria decided to
introduce border controls in accordance with the Schengen Borders
Code,
after
around 50 000 refugees and migrants had entered Austria between
5 and 13 September 2015, without any verification of their identity,
and following the introduction of border controls by Germany on
13 September 2015. The authorities added that due to continued structural
deficiencies of the external border control management of Greece,
on 12 May 2016 the Council of the European Union recommended that
Austria maintain border controls at the Austrian-Hungarian and the Austrian-Slovenian
land borders (at least).
40. In January 2016, in the light of the continuous flow of refugees,
Austria decided – as did some other European countries – to cap
the number of applications for asylum so that the number of asylum
seekers would not to exceed 2.5% of the population. Austria should
accept a maximum of 127 500 asylum seekers in the next four years,
including 37 500 refugees in 2016, but this figure is to be seen
only as indicative (
Richtwert).
The authorities
stated that accepting 90 000 asylum applications per year would
clearly overstretch the capacities and resources Austria can offer:
police, medical and other staff working at the borders, but also
the capacities of the Austrian social security and education systems,
not to speak of the labour market, providing for and absorbing a
high number of new residents while maintaining social peace and
cohesion. The Austrian Government thus decided to introduce in January
2016 a target of 37 500 asylum applications it would accept and
process in 2016. In addition, a maximum of 80 asylum applications
a day would be accepted at the borders with Italy and Slovenia,
and a daily total of 3 200 persons seeking international protection
in Austria or Germany would be allowed to enter Austria. The authorities
emphasised that up to now, these quotas have never been exceeded
and all applications for international protection in Austria have
been accepted and duly processed.
The question
of what would happen in that case remains open.
41. European countries are currently striving to reduce the number
of migrants and refugees reaching the European Union through the
so-called Balkan route. After the Austrian Minister for Foreign
Affairs, Mr Sebastian Kurz, paid an official visit to Serbia on
10 February 2016 and advised the Balkan countries to curb the flow
of refugees,
a “Joint Statement” was issued on
18 February 2016 by the heads of the police services of Austria,
Croatia, “the former Yugoslav Republic of Macedonia”, Serbia and
Slovenia. The authorities indicated that “the main purpose of this
statement was to co-ordinate the transportation of refugees and
migrants, prevent backlogs between the host countries and ensure
that each of the host countries has sovereignty over and knowledge
of who enters their territories, in line with their obligations
under EU and international law. … It grants the right to enter or
pass through the host countries only to persons who are actually
seeking international protection. It excludes those who state reasons
for such entry that clearly do not reflect the wish to seek international
protection (e.g. education, work, avoiding military service) or
who have been residing in safe areas/countries for longer periods
of time”.
This
statement however aroused the concern of the United Nations High
Commissioner for Human Rights, Zeid Ra’ad Al Hussein, as this agreement appeared
to authorise the profiling of people, and limit “entry on humanitarian
grounds”, solely on the basis of nationality and possession of identification
documents, rather than on an individual assessment of whether or not
there was a real need for asylum or some other form of international
protection of human rights.
42. I have also been informed that the Austrian Parliament amended
the Austrian Asylum Act in May 2016,
enabling the Austrian Government,
upon approval of the Standing Committee
(Hauptausschuss) of
the Austrian Parliament, to issue a decree according to which further
asylum applications may only be accepted if the acceptance is necessary
to protect certain fundamental human rights of the applicant concerned,
including his/her right i) not to be expelled to a country where
the applicant faces a risk of torture or cruel, inhuman or degrading
treatment or punishment, or a risk to his/her life; ii) not to be
expelled to a country which may violate the principle of
non-refoulement; and iii) to respect
for private and family life with special regard to the best interest
of the child. Such a decree may only be issued while Austria exercises
border controls, and on the condition that there are substantive
grounds that an imminent massive influx of refugees and migrants
would pose a threat to public order and security. Each asylum application
is processed individually, and an effective remedy is available
to each applicant. The authorities vowed that “the use of the above-described
decree by the Austrian Government for the purpose of maintaining
public order and security is a measure of last resort”. The Austrian
Government stressed that it thereby intended to satisfy its obligations
under European Union and international law, in particular the European
Convention on Human Rights and the Geneva Refugee Convention.
4.3. Prison
conditions
43. The Council of Europe’s Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT)
published its most recent report
on Austria in 2015. In its previous reports, the CPT raised the
issue of overcrowded prisons, juvenile detention, health care and
ill-treatment. The CPT welcomed the major changes initiated by the
Austrian authorities in recent years to ensure that the overall
prison population is kept within manageable levels. A system of
house arrest of prisoners under electronic surveillance was for
example introduced in 2010. A task force on preventive detention,
established by the Federal Minister of Justice, published its final
report in January 2015, recommending concrete measures to address
the growing number of people in preventive detention, as well as
its increasing length and frequent imposition for minor offences.
44. The CPT also welcomed the fact that the authorities have started
to carry out a comprehensive reform of the detention of juveniles
with a view to reducing resort to imprisonment to a strict minimum
.
It noted that the number of juveniles in Austrian prisons has decreased
significantly in recent years.
Several pilot projects have
been launched to this end, as a result of which the number of juveniles
in prisons significantly decreased in recent years (from 5% to 1%
of the total prison population) and the number of juveniles held
in pretrial and penal detention has declined considerably since
2004. Amnesty International acknowledged that the gradual implementation
of recommendations on the pretrial detention of juveniles issued
by the Federal Minister of Justice in October 2013 has had a positive
impact, but regretted that alternatives to pretrial detention were
not sufficiently used. Children under the age of 18 are still held
in adult prisons, and their specific needs are not adequately met.
The
authorities explained that efforts were being made to accommodate
juvenile prisoners at the juvenile prison in Gerasdorf. If this
proved impossible, the accommodation of juvenile prisoners was, without
exception, separated from that of adult prisoners. The juvenile
department was also organised so as to meet the special needs of
minors. The CPT welcomed the substantial improvements in detention
conditions for juveniles in recent years, and referred to the varied
and purposeful activities, and structured programmes for juvenile
detainees, including, for example, school or vocational training,
computer classes, sports, escorted group outings, or regular individual
and group sessions with a psychologist.
45. Staff shortages in the penitentiary system remain a concern,
with the inevitable negative impacts on prisoners’ access to out-of-cell
activities, prompting the CPT to call on the authorities to carry
out a complete overhaul of the staffing situation in Austrian prisons.
They also raised concerns about lack of adequate medical and mental
health care provided to mentally ill prisoners.
The
authorities pointed out that 100 additional tenured prison staff
positions were allocated in 2015, which considerably alleviated
the personnel situation in Austrian prisons and led to an increase
in purposeful activities for the inmates. Austria had also initiated
a reform of involuntary forensic placement
(Massnahmenvollzug),
which will introduce substantial changes to the structure of forensic
placement in specialised prison departments, with respect to management
responsibilities, work distribution, personnel deployment and training
programmes for staff members.
4.4. Torture
and ill treatment
46. The monitoring commissions
of the Ombudsman Office carried out some 400 (mostly unannounced) visits
to places of detention.
An amendment to the Austrian
Penal Code incorporated the crime of torture (as required by the
CPT in 2009) and came into force in 2013.
In its most recent report
on Austria, the CPT noted that the information gathered during the
visit suggested that ill-treatment and inter-prisoner violence did not
constitute a major problem in any of the establishments visited.
47. However, Amnesty International noted that the structural shortcomings
in the penal and preventive detention systems have resulted in cases
of ill-treatment and grave neglect of detainees. This has been compounded
by the lack of a prompt and effective response to such incidents.
The CPT stressed the need for the Austrian authorities to remain
vigilant and to pursue their efforts to prevent ill-treatment by
the police and to ensure that all complaints of ill-treatment brought
before the competent authorities are diligently investigated and,
where appropriate, followed by the imposition of a suitable penalty.
In this context, the committee expressed some doubts as to whether
investigations carried out by investigators of the Federal Bureau
of Anti-Corruption (BAK) – and even more so those carried out by
criminal police officers of the regional police headquarters – against
other police officers could be seen to be fully independent and
impartial.
48. The CPT expressed concern about the fact that certain long-standing
recommendations regarding fundamental safeguards had still not been
implemented, pointing to police questioning of (young) juveniles
and their signing statements without the presence of a lawyer or
a trusted person; or access to and presence of a lawyer for detained
persons who could not afford to pay for a lawyer themselves. The
authorities stated that the Austrian Juvenile Court Act stipulates
that juveniles, unless represented by a defence counsel, must, upon their
request, be interrogated in the presence of a person they trust
and that they must be informed about this right beforehand.
49. The CPT also reiterated previous recommendations aimed at
guaranteeing the confidentiality of conversations between detained
persons and their lawyers and ensuring that the right of detained
persons to have a lawyer present during police questioning is never
denied.
The authorities drew attention
to amendments made to the Criminal Proceedings Law in 2015,
which
will remove any possibility to infringe the confidentiality of the
communication between a lawyer and detained persons or other suspects.
These new provisions and an additional amendment to the Criminal
Procedure Code should enter into force in November 2016 and will
strengthen the right of all suspects, in particular of those in
detention, to have access to a defence lawyer.
50. The CPT noted with satisfaction that major police interventions
(such as large-scale raids or the policing of mass demonstrations
and deportations) continued to be monitored by members of the monitoring commissions
of the Austrian Ombudsman Board.
The Board is informed of every death,
suicide and suicide attempt in police detention facilities as well
as of any allegation of ill-treatment. This reporting to the Ombudsman
Board does not however apply to similar allegations in prisons and
other places of detention. The CPT invited the Austrian authorities
to extend the reporting procedure to prisons and other places of detention.
51. Amnesty International expressed concern about the lack of
an independent mechanism to investigate allegations of serious human
rights violations by law-enforcement officials, with a view, if
violations are found, to initiating disciplinary proceedings and
referring cases directly to the judicial authorities. In January
2015, the Federal Minister of the Interior announced plans to equip
police officers with body cameras to record sensitive police operations,
but rejected the use of a compulsory identification system for police
officers, which would help to identify the officers allegedly involved.
More
efforts by the authorities are required in this respect. The authorities
indicated that “pursuant to Article 31(2)(2) of the Security Police
Act, police officers are under an obligation to present their identification
cards upon request” which specify “their identification number,
his/her department and its telephone number. In case of a violation
of this obligation, a complaint may be filed at the State administrative
court”.
4.5. Fight
against trafficking in human beings
52. Austria ratified the Convention
on Action against Trafficking in Human Beings (CETS No. 197) on 12 October
2006 and underwent two rounds of evaluation carried out by the Group
of Experts on Action against Trafficking in Human Beings (GRETA).
GRETA identified Austria as a destination
and transit country for women, men and children trafficked for the
purpose of sexual exploitation (which remains the most frequent form
of exploitation), forced begging and forced labour. All the identified
victims
were foreign nationals originating
mainly from eastern Europe, Africa and Asia and, in the case of
sexual exploitation, an increasing number of men and transgender
persons from Latin America, which is an emerging trend.
53. On 30 November 2015, the Committee of the Parties adopted
Recommendation CP(2015)14,
which highlighted
the progress made by Austria in relation to,
inter
alia, the legal framework for combating trafficking in
human beings, improved co-ordination of anti-trafficking efforts
between the federal government and the federal States (
Länder), increased focus on trafficking
for the purpose of labour, the setting up of a specialised support
structure for male victims of trafficking, better compensation for
victims of trafficking and enhanced international police co-operation.
54. At the same time the Committee of the Parties encouraged Austria
to develop and maintain a comprehensive and coherent statistical
system on trafficking in human beings (while ensuring the protection
of personal data) and to adopt, as a matter of priority, a national
referral mechanism for child victims of trafficking which takes
into account the special circumstances and needs of child victims
and ensures that child victims of trafficking across the country
benefit from the assistance measures provided for under the convention.
It also recommended that Austria ensure better access to an effective
recovery and reflection period and all the measures of protection
and assistance (as foreseen in the convention). The principle of
non-punishment of victims of trafficking for their involvement in
unlawful activities should also be guaranteed, to the extent that
the victims were compelled to do it.
55. The Committee of the Parties invited Austria to further implement
the recommendations made by GRETA and to report back on the measures
taken to improve the implementation of the convention in the above-mentioned
areas by 30 November 2016.
56. The authorities informed me about the ongoing work to improve
the collection of statistical data concerning human trafficking,
establish a national referral mechanism for child victims of trafficking,
ensure a recovery and reflection period for victims of human trafficking
(a possible amendment to the Aliens Act is under consideration),
implement the non-punishment principle, including the development
of an official interpretation of the non-punishment provision and
drafting a guideline for public prosecutors concerning the non-punishment principle
(see Article 10 of the Criminal Code).
I welcome this work in progress and encourage
the Austrian authorities to finalise this process in order to address
the recommendations made by the Committee of the Parties and GRETA.
4.6. Combating
violence against women and promoting gender equality
57. The Convention on Preventing
and Combating Violence against Women and Domestic Violence (CETS No.
210, “Istanbul Convention”) was ratified by Austria in 2013. No
monitoring report is available yet. According to the first prevalence
violence survey carried out in Austria (2011), 85.6% of women experience
psychological violence at some point in their life after the age
of 16, whether in private or public spheres. Furthermore, 56.8% of
women experience physical violence, 74.2% sexual harassment and
29.5% sexual violence. Austria has set up a women’s national helpline,
30 women’s shelters, nine intervention centres and six centres for
women survivors of sexual violence.
Mandatory training of judiciary personnel
is provided on gender-based violence. Some recent legislative developments
are to be noted, including the 2015 amendment to the Criminal Code explicitly
prohibiting forced marriage. The inclusion of a provision in the
Criminal Code about displacement for the purpose of forced marriage
abroad, and the introduction of the crime of “violating sexual self-determination”.
A National Action
Plan against Violence against Women was adopted in 2014 and should
be assessed in 2017.
58. To ensure effective policies for gender equality, gender mainstreaming
and gender budgeting are promoted in the federal administration.
Progress has been achieved in gender equality in relation to family issues,
in so far that the rights of fathers not married to the mother of
their children were upgraded,
and same-sex couples are now entitled
to take a maternity/paternity leave within the first three months
of the birth or the first day of adoption, if the child is less
than two years old.
4.7. Protection
of national minorities
59. Due to its history and the
legacy of the Austro-Hungarian Empire, minorities remain an important
issue in Austria. Six ethnic groups, so-called “autochthonous minorities”,
enshrined in the Constitution, who have been living in Austria for
generations, are officially recognised in Austria: Croatians (in
Burgenland), Roma, Slovaks, Slovenians in Carinthia and Styria,
Czechs (in Vienna) and
Hungarians (in Burgenland), concentrated in the east and south of
the country. Minorities are defined as being Austrian nationals,
with a non-German mother tongue and their own ethnicity, who live
in parts of the national territory
which they regard as their domicile,
and who fall within the scope of application of the 1976 National
Minorities Act (
Volksgruppengesetz).
While the
Austrian Federal Constitution provides for the respect and promotion
of ethnic groups resident in Austria, the rights of the Croatian
and Slovenian minorities are also set forth in the State Treaty
of Vienna (1955). The issue of the continuous historical presence
of Polish speakers in Vienna remains to be clarified.
There are no ethnic
statistics collected. However, according to the last 2001 census, there
are about 82 500 people who declare that they use a national minority
language informally, 49 000 of them born in Austria.
60. Austria ratified the Framework Convention for the Protection
of national minorities (FCNM) (ETS No. 157) in 1998 and the European
Charter for Regional or Minority Languages (ETS No. 148) in 2001.
The regional or minority languages covered under the Charter in
Austria are Burgenland-Croatian, Czech, Hungarian, Slovak, Slovenian
and Romani.
61. Based on the latest report available, in 2011/2012,
the Committee of Ministers issued
two resolutions.
The Austrian authorities provided
their last report on the implementation of the Framework Convention
in January 2016.
The main issues raised by the minorities
were topographical signs, education in minority languages,
media
in minority languages, funding and the role and place of representative organisations
(i.e. advisory councils). It would go beyond the mandate of this
report to reflect in detail the issues mentioned in these detailed
and extensive reports. I would like, however, to look at the latest
developments and highlight some recommendations made by the Committee
of Ministers which merit closer attention.
62. In June 2012, the Committee of Ministers, in its Resolution
CM/Res(2012)7, highlighted that, overall, inter-ethnic tolerance
and understanding appeared improved, including in Carinthia, following
extensive efforts by the federal authorities and academia, as well
as private initiatives. The authorities continued to develop an advanced
and successful system of bilingual primary education in Burgenland
and Carinthia which is increasingly attractive also to pupils belonging
to the majority population. Moreover, some progress had been made
with regard to the availability and quality of minority language
television and radio broadcasting.
63. The agreement reached on 26 April 2011 in Carinthia on the
long-standing issue of the topographical signs should be welcomed.
A memorandum was signed by the State Secretary in the Federal Chancellery,
the Governor of Carinthia, mayors, local-heritage societies, political
parties and representatives of Slovenian speakers in Carinthia that
served as a basis for the new legislative provisions.
64. The Austrian Parliament also adopted amendment No. 46/2011
to the National Minorities Act in July 2011. This amendment contains
a list, incorporated under constitutional law, of those municipalities
in the federal States of Burgenland and Carinthia where bilingual
topographical signs and inscriptions must be provided. In practice,
there are sometimes even trilingual signs. Moreover, constitutional
law provisions ensure that the Croatian, Slovenian or Hungarian
languages may be used as an official language, in addition to German.
The Constitutional
Court stated in many decisions that when 10% of the population speaks Slovenian
or Burgenland-Croatian, the language should be considered as official.
The new law has increased the threshold to 17%, leading to limitations
for the use of Slovenian and Burgenland Croatian in some municipalities.
The
fact that this agreement has now become constitutional law makes
it impossible to challenge it through the Constitutional Court.
65. In 2012, there was an attempt to review and amend the National
Minority Act. The authorities intended to give a new definition
of a minority (which would no longer be based on ethnicity, but
rather on the language and the connected culture) and to modernise
the advisory councils, with a view to making them more participative
and increasing their autonomy. The draft law also foresaw the creation
of a forum of minorities and the appointment of all members of the
advisory councils, their presidents and vice-presidents by the Federal Chancellor,
which led the representatives of the minorities to fear that such
a move would mean a weaker representation of minorities. Also, under
this reform, the administrative court would no longer be able to
make a judicial review and the advisory councils would only have
an advisory function. No agreement could be reached to finalise
the draft law.
66. Vienna is not covered by a specific minority law which would
allow adequate protection and promotion of these languages, especially
in the field of education, where the demand is particularly high.
There are no plans to establish a minority school act for the traditional
regional or minority languages in Vienna, in particular with respect
to the Czech minority.
67. Although it is very rare that acts of discrimination affecting
national minority members are reported to official entities, the
Austrian authorities have launched, at the levels of the Federation
and the federal States, a number of awareness-raising activities,
including for the police and the judiciary, that are to be welcomed.
68. Financial support is granted to national minorities at federal
and regional level. The funds provided by the Federal Chancellery
amount to 3.9 million euros per annum. However this amount has remained
the same since 1995, leading to a decrease of 40% in real terms,
despite additional
yearly project-oriented funding allocated by federal or regional
authorities.
This
has resulted in some advisory councils alleging that the existence
of national minorities is threatened in Austria. In this respect,
it should be highlighted that collection of reliable data, in full
compliance with international standards, as suggested by the Advisory
Committee on the Framework Convention for the Protection of National
Minorities, would be helpful to prepare a comprehensive policy in
this regard.
69. At the same time, the Committee of Ministers expressed some
concern about continuously reported racist or xenophobic incidents
and statements, including from within the political spectrum, that
incite inter-ethnic hostility, while legal remedies against discrimination
and criminal law provisions sanctioning racial or ethnically motivated
violence are rarely or insufficiently applied.
70. In line with the resolutions of the Committee of Ministers,
we encourage Austria to immediately take any action required to
engage in comprehensive and effective consultation with national
minority representatives and amend the national minority legislation
with a view to ensuring consistent and inclusive protection of national
minority rights throughout Austria, and to ensure the effective
and consistent enjoyment throughout Austria of the linguistic rights
of persons belonging to national minorities and introduce due flexibility
when applying thresholds in relevant national legislation to avoid
arbitrary distinctions being made. In addition, we recommend that
the current system for the appointment and composition of the advisory
councils for national minorities be reviewed so as to substantially
broaden their competencies and ensure that they are effectively consulted
on all issues that affect them.
4.8. Roma population
71. It is estimated that only 3 000
to 5 000 Roma belong to the autochthonous Roma minority. The total number
of Roma living in Austria, including those originating from the
ex-Yugoslav countries who have arrived since the 1960s, has been
estimated to be between 20 000 and 100 000, depending on the sources
and calculation method.
72. A Roma Strategy was launched in 2012. An advisory council
for the Roma minority has been set up as a consultation partner
for the federal government concerning issues related to autochthonous
Roma. Efforts have been made to provide learning assistance to Roma
children in Burgenland and Vienna and Roma school mediators have
been set up.
Civil society representatives
have criticised the fact that, in their view, the Dialogue Platform
has no clear goals, is inefficient and is still in the phase of
stock-taking and data collection.
73. Despite some notable exceptions, people belonging to the Roma
minority continue to face substantial difficulties, particularly
as regards access to education and formal employment. ECRI has pointed
to the role of traditional media, which often publishes clearly
racist content and discloses the ethnic origin of suspects when
reporting criminal acts, thus stirring up resentment against Roma
and other vulnerable groups.
74. In its June 2012 resolution on the implementation of the Framework
Convention of National Minorities,
the Committee of Ministers
recommended designing, implementing and regularly monitoring, in close
consultation and co-operation with Roma representatives, comprehensive
long-term programmes to promote the effective equality and participation
of people belonging to the Roma minority in all spheres of public life.
As Roma are still particularly vulnerable, ECRI has decided to focus
its 5th report on this minority. In 2012, Austria introduced into
its broader social inclusion policies an integrated set of policy
measures focusing on Roma, which target the fields of education,
employment, housing and health.
A National Roma Contact Point was established
at the Federal Chancellery (in addition to the Advisory Council
for the Roma Minority, which was established in 1995), which brought
together representatives from the Roma community and the federal,
regional and local levels to specifically discuss the implementation
of the integrated set of policy measures.
4.9. Fighting discrimination, racism and
xenophobia
75. Due to its central position
in Europe, Austria has a long history of migration: 1.6 million
migrants were living in Austria in 2013 (19.4% of the global population),
566 700 persons originating from European Union countries, 533 100
from the former Yugoslavia and 268 400 from Turkey. Integration
has only recently become a political priority at the federal level.
76. Despite an elaborate legal and institutional framework, several
criminal law provisions only cover national-socialist motivated,
and not all racist motivated acts. In addition, the high number
of anti-discrimination acts and institutions reportedly undermines
their effectiveness. The Equal Treatment Act of the Federation does
not contain a clear prohibition of all discrimination, nor does
it place public authorities under the duty to promote equality.
Outside the field of employment, it only prohibits discrimination
on the grounds of gender and ethnicity. As mentioned previously,
the Ombudsperson for Equal Treatment is not fully independent and
does not have the power to provide legal aid and represent victims
in court proceedings.
Austria has not ratified Protocol
No. 12 to the European Convention on Human Rights (ETS No. 177).
The authorities consider however that the independence of the Ombudsperson
for Equal Treatment increased after the reform of the Equal Treatment
Act in 2011, which included
inter alia the
“explicit exemption from instructions for the Ombudsperson, as well
as an exemption from the so-called right to supervision
(Aufsichtsrecht) of the Federal Chancellor.
Thus even as the Ombudsperson remains, from an organisational point
of view, part of the Federal Chancellery, it acts as an independent
entity, with the Ombudspersons being fully independent in their
work”. Pursuant to the Equal Treatment Act, people who feel discriminated
against have the possibility to obtain advice as to their actions
and rights by the Ombudsperson for Equal Treatment. The Ombudsperson
may also intervene, as a third party, in support of a plaintiff
or defendant in court proceedings.
77. The findings of various monitoring bodies and NGOs concurred
to highlight a rise in racism and xenophobia in Austria, which is
a worrying trend:
- according
to Amnesty International, foreign nationals and members of ethnic
minorities appear to be more at risk than Austrian citizens of being
suspected by the police of having committed a crime.19 Austria
does not systematically collect and publish comprehensive and coherent
statistics on racist incidents or on the government's response to
such incidents.20 Furthermore, there
is a significant lack of information on the application in practice
of existing reporting and investigation standards for law- enforcement
officials, and of legislation to combat racism, hate crime and hate
speech, in particular Article 33 (1) lit. 5 and Article 283 of the
Austrian Penal Code;
- ECRI noted that antipathy towards migrants has considerably
increased in recent times, including in the political environment.
A new generation of right-wing extremist organisations has appeared
and others have radicalised. There were several cases of racist
attacks reportedly carried out by groups of perpetrators. Certain
media publish clearly racist content and do not respect the Press
Council’s decisions;
- the Service for the Protection of the Constitution has
reported that a new generation of right-wing extremist organisations
has appeared, which present racist views through “more diplomatic
propaganda” and aim to recruit young people from universities and
student fraternities (Burschenschaften);
- hate speech on online forums is not systematically monitored,
but generally considered to be on the rise. The number of cases
denounced on a police website for reporting Nazi activities rose
to 1 900 in 2015 (compared to 338 in 2011). The authorities give
three reasons: better information about this reporting, the possibility
of anonymous reporting – but also a rise in the number of relevant
acts.
78. Allegations of racial profiling and misconduct on the part
of police officers towards people with migration backgrounds were
also noted. ECRI has recommended that the Austrian Ombudsman Board
fully investigate such allegations.
79. The Commissioner for Human Rights has underlined that the
gaps in the existing legal and institutional framework to combat
discrimination, racism and xenophobia could have been resolved by
the ratification of Protocol No. 12 to the European Convention on
Human Rights (providing for a general prohibition of discrimination).
Austrian anti-discrimination legislation is scattered over numerous
federal and State laws and provides for varying degrees of protection
for different grounds of discrimination, resulting in confusion,
legal uncertainty and potential injustice, in particular in case
of multiple discriminations.
I was told that the Austrian
Federal Government has undertaken to make an evaluation of its equal
treatment law and instruments as part of its 2013-2018 work programme,
which should provide an opportunity to address
the shortcomings identified by Council of Europe bodies.
80. Special reference should be made here to the use of racially
inflammatory or xenophobic discourse by political parties or their
representatives. ECRI deplored that many hate-motivated public statements
have been made, in particular during election campaigns. The far-right
party FPÖ (Austrian Freedom Party) is openly hostile to historical
ethnic, religious and linguistic minorities, migrants, refugees
and asylum seekers
.
81. In 2012, the Committee of Ministers invited the authorities
to reinforce ongoing efforts to address racism and xenophobia in
society, including by strongly condemning all manifestations of
intolerance and populism in the political arena and the media, further
raising awareness on the available legal remedies, and strengthening the
capacity of the Ombudspersons for Equal Treatment and the Equality
Commission in order to more effectively combat discrimination in
society.
82. ECRI also considered that the authorities should apply the
law in a more vigorous way to curtail the activities of organisations
that promote racist ideology and systematically counter and condemn
hate speech, in particular during election campaigns.
Action also needed to be
taken against student fraternities that keep alive such ideology
in academia. In addition to applying criminal law vigorously, the
public funding of racist organisations, including political parties,
should be discontinued.
The ratification of the Additional
Protocol to the Convention on Cybercrime would considerably improve
the Austrian authorities’ response to cyber hate speech.
83. Vigorous measures should be taken to eradicate the spreading
of racist and xenophobic discourse. In this context, I welcome a
number of positive steps that were taken recently to address issues,
inter alia: the adoption of a new
article in the Criminal Code that prohibits incitement to violence
and hate speech against ethnic and religious groups; the re-establishment
of the Austrian Press Council in response to an ECRI recommendation;
the establishment of a task force on diversity by the Ministry of
Justice in January 2015, which explicitly seeks to address allegations
of institutional and structural racism in the judiciary.
84. The authorities confirmed that the adoption of the “Criminal
Law Amendment Act
(Strafrechtsänderungsgesetz) in
2015, which entered into force on 1 January 2016, improved the possibilities for
prosecution of hate speech, thereby implementing recommendations
by ECRI, among others. Thus, an amendment to Section 283(1) ensures
that incitement to hatred not only against groups but also against
a specific person is now a punishable offence. Moreover, incitement
to hatred or violence against “foreigners” or “non-Austrians” is
now punishable by law. This Act should also pave the way for the
ratification of the Additional Protocol to the Convention on Cybercrime,
for which legal analysis is now being undertaken.
85. In 2015, the Islamic Law (which actually amended the 1912
Islam law
)
was adopted and raised some controversy. This law provides for State
protection for Islamic holidays, the right of religious societies
to provide Islamic spiritual care in public hospitals and other
institutions and establishes regular university studies in Islamic
theology. At the same time, it bans foreign funding of Islamic religious
societies and reportedly provides for the dissolution of a considerable
number of associations. It also contains a provision for the mandatory translation
of religious texts, which is valid for all religious communities,
Islamic and other.
86. In this respect, ECRI recalled that freedom of religion needs
to be fully guaranteed (Article 9 of the European Convention on
Human Rights) and that the authorities need to ensure that Muslim
communities are not discriminated against as to the circumstances
in which they organise and practice their religion. The European
Commission for Democracy through Law (Venice Commission) has stated
that a blanket prohibition on all foreign funding was arguably unreasonable
and not necessary in a democratic society. Also, consideration should
be given to prescribing a range of sanctions of varying severity,
before taking the harsh step of liquidating a religious organisation,
which should be a measure of last resort. The authorities should ensure
that any restriction and differential treatment with regard to the
practice of Islam is in line with the case law of the European Court
of Human Rights.
4.10. Discrimination against lesbian, gay,
bisexual and transgender (LGBT) persons
87. Even though there are no official
statistics on homophobic and transphobic incidents,
discrimination on
the basis of sexual orientation in access to goods and services,
as well as legal inequalities between registered same-sex partnerships
and marriages, remain persistent. Recently, progress was recorded
in this area: the courts have annulled several discriminatory provisions
and preconditions for legal gender recognition of transsexual persons
were relaxed. Asylum can be granted for prosecution on the basis
of sexual orientation and gender identity and registered partners
can benefit from family reunification. Austria created a special regime
of registered partnerships for same-sex couples in 2010. In 2015,
it legalised the second parent (joint) adoption in same-sex couples
(registered or not) without terminating the child’s legal bond with
his or her biological parent, after amendments made to the Civil
Code and the Registered Partnership Act in 2015.
In January 2015, the Constitutional
Court declared illegal the ban on same-sex couples adopting children.
Since 1 January 2016, same-sex couples have the right to adopt non-biological
children.
88. In the cases
X and Others v. Austria and
E.B. and Others v. Austria, the
European Court of Human Rights held that Austria’s refusal to delete
convictions from gay men’s criminal records for homosexual relations
with consenting male adolescents violated the Convention.
In execution
of these cases and other case law of the European Court of Justice,
a Federal Law on the Deletion of Verdicts based on several articles of
the Criminal Code entered into force on 29 December 2015. This law
ensures that all verdicts for homosexual relations possibly discriminating
against gay men can be removed from the criminal records.
This is a positive example
of Austria’s execution of the Court judgment.
4.11. Other human rights issues
89. Concerning the situation of
disabled persons, the general right to freedom from discrimination
on the basis of a disability is set out in Article 7.1 of the Federal
Constitution. Austria has ratified the United Nations Convention
on the Rights of Persons with Disabilities, including its Optional
Protocol. Data obtained in 2008 show that about 20% of people living
in private households in Austria reported a limiting illness or
disability lasting for more than six months, which amounts to about
1.7 million people. Reportedly, the protection of the human rights
of people with disabilities suffers from fragmentation as a result
of the shared responsibility for policies in this area between the
federal government and the federal States.
90. The authorities explained that the basic instrument to promote
and to implement the Convention on the Rights of Persons with Disabilities
in Austria is the “National Action Plan on Disability 2012 to 2020”
developed under the responsibly of the Federal Ministry of Labour,
Social Affairs and Consumer Protection, in close co-operation with
civil society. A supervisory group was established, involving civil
society organisations representing people with disabilities, to
monitor the progress of implementation. The first interim assessment 2012
to 2015 is currently being drafted.
91. Austria ratified the European Social Charter (ETS No. 35)
on 29 October 1969 and the Revised European Social Charter (ETS
No. 163) on 20 May 2011, accepting 76 of the revised Charter’s 98 paragraphs.
Austria
has signed, but not yet ratified, the Additional Protocol of 1995
(ETS No. 158) providing for a system of collective complaints.
92. The European Committee for Social Rights has reviewed the
conformity of the provisions ratified. The committee found, inter alia, that equal treatment
with regard to social security rights is not guaranteed to nationals
of all other States Parties and that the granting of social assistance
benefits to non-EU/EEA nationals legally residing in Austria is
subject to an excessive length of residence condition. Moreover,
with regard to education, the Committee noted that nationals of
other States Parties who are not nationals of the European Economic
Area and are lawfully resident or regularly working in Austria are
granted access to university education only subject to the availability
of places.
93. In addition, with regard to labour rights, the Committee noted, inter alia, that it has not been
established that the lowest wage paid is sufficient to ensure a
decent standard of living and that the period during which protection
is granted to a workers’ representative beyond his/her mandate is
not reasonable.
94. The European Committee for Social Rights has encourage Austria
to ratify the Additional Protocol of 1995 providing for a system
of collective complaints, which would strengthen the protection
of social rights in Austria. The authorities mentioned that the
findings of non-conformity by the European Committee for Social Rights
will be addressed in the forthcoming reports on the respective provisions
of the Charter. The ratification of the Additional Protocol of 1995
providing for a system of collective complaints could prove more
difficult, as the Austrian legal system does not provide for class
actions. They vowed, however, to monitor developments regarding
the Additional Protocol and will duly consider the experience with
the collective complaints procedure made by the member States of
the Council of Europe.
5. Conclusions and recommendations
95. Overall, the functioning of
democratic institutions in Austria complies with Council of Europe
standards. Austria globally honours its membership obligations to
the Council of Europe. The Monitoring Committee recognises that
Austria has recently been facing an unprecedented influx of refugees.
It has, in the same period, experienced rising populism with mounting
anti-migration and anti-Islam rhetoric, which could challenge its
social cohesion. However, Austria has shown its capacity to remain
so far a well-established and vivid democracy, based on a federal
system, with a high level of protection of human rights and, overall,
well-functioning democratic institutions.
96. In the light of the findings of the monitoring mechanisms
of the main Council of Europe conventions, a certain number of issues
should, however, be addressed by the authorities. The committee
therefore wishes to make the following recommendations to the Austrian
authorities:
97. In the field of combating corruption and money-laundering,
the committee welcomes the upgrading of Austria’s anti-corruption
legal framework, including the ratification of the Criminal Law
Convention on Corruption and Additional Protocol in 2013 and the
adoption of a variety of laws. In the light of the recommendations
issued by the Group of States against Corruption (GRECO), it encourages
the Austrian authorities to:
- pursue
their efforts to fully fulfil the recommendations issued by GRECO
which have not yet been implemented, or only partially implemented;
consider in this respect amending the Political Parties Act, in
line with the recommendations issued by GRECO, reinforcing the rules
governing funding of political parties and election campaigns and
strengthening the role and independence of the Austrian Court of Audit;
- ratify the Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime and on the Financing of
Terrorism (revised) signed in 2005;
- promote co-operation mechanisms with the federal States
to encourage them to develop and strengthen anti-corruption measures
and policies.
98. The committee encourages the Austrian authorities to consider
becoming a member of the Committee of Experts on the Evaluation
of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL).
99. Concerning the protection of human rights, the committee welcomes
the intention of the Austrian authorities to adopt a National Action
Plan on Human Rights in the near future. Based on the evaluation
of the human rights mechanism, the Austrian authorities should,
in this context:
- consider merging
the various anti-discrimination acts and institutions of the federation
and the federal States (Länder) in
order to improve the protection afforded to victims of racism and
discrimination;
- ratify the Additional Protocol to the Convention on Cybercrime,
concerning the criminalisation of acts of a racist and xenophobic
nature committed through computer systems.
100. Concerning the fight against discrimination and racism, in
the light of the finding of the European Committee against Racism
and Intolerance (ECRI), the committee welcomes the adoption of the
“Criminal Law Amendment Act” in 2015 that should improve the prosecution
of hate speech. It encourages the Austrian authorities to:
- strengthen the Austrian Ombudsman
Board and ensure that the appointment of its board members complies
with the Paris Principles;
- ratify Protocol No. 12 to the European Convention on Human
Rights signed in 2000;
- take vigorous action against political parties and organisations
that spread xenophobic rhetoric.
101. In the field of combating human trafficking, the committee
invites the Austrian authorities to further implement the Convention
on Action against Trafficking in Human Beings and Recommendation
CP(2015)14 of the Committee of the Parties. It encourages the rapid
finalisation of the work in progress to establish a national referral
mechanism for child victims of trafficking as a matter of priority,
to improve statistical data collection, to ensure a recovery and
reflection period for victims of human trafficking, and to implement
the non-punishment principle, including by drafting a guideline
for public prosecutors.
102. Concerning the protection of national minorities, the committee
welcomes the agreement reached in 2011 and the amendment of the
National Minorities Act related to bilingual topographical signs
and the use of minority languages as an official language. It encourages
the Austrian authorities to seek further consensus among national
minorities in order to review the National Minorities Act in co-operation
with the national minorities’ advisory councils, in order to comply
with the recommendations of the Committee of Ministers and the Advisory
Council of the Framework Convention for the Protection of National
Minorities.
103. In the field of local and regional democracy, the Austrian
authorities are invited to:
- sign
and ratify the Additional Protocol to the European Charter of Local
Self-Government, on the right to participate in the affairs of a
local authority;
- initiate an overall institutional reform of the federal
system in Austria, in line with Recommendation 302 (2011) on Local and regional democracy in Austria;
104. In the field of social rights, the Austrian authorities are
invited to consider ratifying the Additional Protocol to the European
Social Charter Providing for a System of Collective Complaints signed
in 1999, in the light of the best practices developed by Council
of Europe member States.
105. The Austrian authorities are also encouraged to work towards
Austria becoming a member of the Council of Europe Development Bank.
106. The committee will evaluate the implementation of these recommendations
on the occasion of its next periodic evaluation cycle of member
States that are not under a monitoring procedure in sensu stricto or engaged in a post-monitoring
dialogue.