Austria

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Background

The Republic of Austria was once the epicenter of the all powerful Austro-Hungarian Empire, which can be dated back to 976 AD[1]. Austria was only reduced to its current size after its defeat in World War I (World Factbook). In 1938, Austria was annexed by Nazi Germany and saw its population suffer heavy losses during the height of World War II (World Factbook). In 1945, Austria was liberated and occupied by Allied forces for nearly ten years before the State Treaty of 1955 ended occupation, recognized Austrian independence, and prohibited Austrian re-unification with Germany (World Factbook). Austria has additionally adopted a constitutional law upholding neutrality, an issue that has raised concerns in the country since its admission to the European Union in 1995 (World Factbook).Austria’s current chief of state is President Heinz Fischer and the current head of state is Chancellor Werner Faymann (World Factbook). In 2008, the country installed a coalition government comprising of the center-left Social Democrats and the conservative People’s Party[2] Austria has weathered the recent financial crisis relatively better than its European neighbors, although domestic austerity measures have left the population bitterly opposed to further cutbacks (Austria Country Profile). The capitol of Austria is Vienna and the official national language is German (World Factbook). Nearly 91.1% of the population is ethnic Austria, while 4% are former Yugoslavs, 1.6% are Turks, and .9% are German (World Factbook). Approximately 73.6% of Austrians identify as Roman Catholic, 4.7% are Protestant, and 4.2% are Muslim. [3]

Type of system

Austria has a civil law system that has origins in Roman law.[4] The Austrian court system is five-tiered and is divided into the courts of public law jurisdiction and the courts of ordinary jurisdiction[5]. The courts of public law jurisdiction are comprised of the Constitutional Court and the Administrative Courts (The Austrian Legal System and Laws: A Brief Overview). The Constitutional Court is assigned with protecting the rights of the citizens and ensuring that all laws are in accordance with the Austrian Constitution (The Austrian Legal System and Laws: A Brief Overview). The Administrative Courts are responsible for reviewing the decisions of the other courts and legal authorities (The Austrian Legal System and Laws: A Brief Overview). The courts of public law jurisdiction are comprised of the courts of first instance, the courts of second instance, and the Supreme Court (The Austrian Legal System and Laws: A Brief Overview). The courts of first instance are either regional or district courts that are usually presided over by a single judge (The Austrian Legal System and Laws: A Brief Overview). The courts of second instance are courts that preside over appeals (The Austrian Legal System and Laws: A Brief Overview). In the event that a case was tried in the District Courts, the appeal will be brought to the Regional Courts (The Austrian Legal System and Laws: A Brief Overview). If the case was tried in the Regional Courts, the appeal will be brought to the Provincial Courts (The Austrian Legal System and Laws: A Brief Overview). Finally, the Supreme Court is the highest court in all civil and criminal cases and hears trials only at last instance.[6]

Source of defendants’ rights

The Austrian Federal Constitution, the Austrian Basic Law on the Rights of the National, and the Austrian Federal Constitutional Law on the Protection of Personal Liberty provide defendants with certain rights. The Austrian Federal Constitution upholds the basic rights of all Austrians in regards to education, civil rights, protection, etc. [7]The Basic Law on the Rights of the National is more extensive and protects rights to privacy of the home, property, communication, and movement. [8]Finally, the Austria Federal Constitutional Law on the Protection of Personal Liberty protects all individuals from unlawful detention, ensures that prisoners are treated with dignity and respect, guarantees liberty and security, outlines the rights of the individual at the time of arrest, and provides all defendants with the right to counsel.[9]

Pre-trial phase

The Austrian Federal Constitutional Law on the Protection of Personal Liberty Article 4(1) states that an arrest may only be made with a judicial order. Under exceptional circumstances, the order may be obtained 24 hours after the arrest has been made. [10] At the time of arrest, the suspect has the right to be immediately notified of the charges brought before him in a language that he understands. [11] The suspect also has the right to request that a relative and/or legal representative be notified at the time that the arrest is made. [12]

The Austrian Federal Constitutional Law on the Protection of Personal Liberty states that no person may be unlawfully detained or arrested. [13] Whoever is arrested or detained must be treated with human dignity and respect. [14] Austrian law states that no person may be detained for longer than 48 hours before being brought before a competent court. [15] Additionally, investigative detention periods may not exceed two years.[16]

Suspects are not required to answer questions during an interrogation without an attorney present. In reality, however, police officers often question suspects immediately after arrest even if their attorney is not present.[17] When the suspect is brought before the court, a judge must interrogate him without delay and inquire into the grounds of his detention.[18]

Court procedures

In the Austrian court system, all defendants are regarded as equal before the law, are presumed innocent, and have the right to a fair trial before an independent judiciary. All Austrian trials are conducted orally before the public and juries are only used in cases of major criminal offenses. The defendant has the right to be present at all trials, may present witnesses, question witnesses against them or for them, and may provide evidence for their defense. [19]

Defendants have only 96 hours after their arrest to contact their lawyers, but legal representation is not required in cases that involve only minor offenses. In the event that the defendant cannot obtain or afford legal counsel, a pro bono lawyer will be assigned to his case in trials that require lawyers. Additionally, the defense has access to all evidence held by the government that is relevant to the case. [20]

All Austrian lawyers must be registered on a bar association’s list in order to legally practice law. Only lawyers that practice independently may be admitted to the legal profession. As of 2008, there were 5,300 practicing lawyers in Austria. Around 90% were registered European lawyers and 17% were women. [21]

References

  1. CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook
  2. Austria Country Profile, available at www.news.bbc.co.uk
  3. CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook
  4. CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook
  5. The Austrian Legal System and Laws: A Brief Overview, available at www.nyulawglobal.org/Globalex/Austria
  6. The Austrian Legal System and Laws: A Brief Overview, available at www.nyulawglobal.org/Globalex/Austria
  7. Austrian Federal Constitution
  8. Austrian Basic Law on the Rights of the National
  9. Austrian Federal Constitutional Law on the Protection of Personal Liberty
  10. Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(1)
  11. Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(6)
  12. Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(7)
  13. Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 1(2)
  14. Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 1(4)
  15. Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(2)
  16. US State Department 2010 Human Rights Report: Austria, available at www.state.gov/g/drl/rls/hrrpt/2010
  17. US State Department 2010 Human Rights Report: Austria, available at www.state.gov/g/drl/rls/hrrpt/2010
  18. Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(3)
  19. US State Department 2010 Human Rights Report: Austria, available at www.state.gov./g/drl/rls/hrrpt/2010
  20. US State Department 2010 Human Rights Department Report: Austria, available at www.state.gov/g/drl/rls/hrrpt/2010
  21. www.ibanet.com


QUICK FACTS

  • Austria's total prison population is 8,671 with every 103 per every 100,000 people in prison
  • 23.7% of Austrian prisoners are pre-trial detainees, 2.6% are juveniles, and 45.8% are foreigners
  • Austria has 28 prison institutions that have an official capacity of 8,423 prisoners
  • The current prison system is at 102.9% capacity
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