The central human rights concerns in Austria in 2003
included infringements on the freedom of the media, racial discrimination and
racially motivated assaults, minority rights, and the rights of asylum seekers.
The European Court of Human Rights (ECtHR) continued
to consider and rule on several defamation cases resulting from the apparent
inability of Austrian politicians—particularly those representing the
right-wing Austrian Freedom Party (FPÖ)—to face criticism. The case flow was
facilitated by Austrian legislation that theoretically provided for prison
sentences for defamation. In addition, there were reports that Austrian public
radio and television, ORF, was subjected to pressure by the FPÖ and the other
governmental coalition partner, the conservative People’s Party (ÖVP).
Racial discrimination and racially motivated
incidents were of serious concern. The lack of appropriate legislation to
address them, and the lenient sentences handed down by courts for racially
motivated crimes did not help the fight against racism and intolerance. The
death of an African, as a result of what appeared to be inadequate conduct by
the police and emergency doctors, was at the center of criticism.
The October amendments to the asylum law were aimed
at accelerating the processing of asylum claims, but they also significantly
restricted the rights of asylum seekers, opening up avenues for violations of
the Geneva Convention on the Status of Refugees.
The dispute over minority rights continued, with
authorities failing to abide by a ruling of the Austrian Supreme Court. The law
on religious communities was inherently discriminatory and measures were taken
to present minority religions in a questionable light.
Freedom of Expression and the Media
Freedom of speech and of the media were safeguarded under the
Constitution, and the government generally respected these rights in practice. The
main concerns in the field of free expression were the media concentration,
alleged pressure exerted on the public radio and television ORF, and the
defamation provisions in the Criminal Code.
There
were signs that the parties that formed the government coalition, the ÖVP) and
the FPÖ, were exerting continuing pressure on public radio and television, ORF.
Critics claimed that the pressure could be seen in programming policies,
especially regarding newscasts and the choice of guests for political talk
shows.[1]
However, the most vehement criticism was targeted at ORF’s personnel policy,
which was said to effectively result in the attempt to replace politically
liberal or left-oriented employees with those who were pro-government.[2]
The
high media concentration in
In
a positive development, the monopoly of the ORF was lifted in 2002 when the
media regulatory body, known as KOMM Austria, permitted private television
stations. In June 2003, the first private Austrian TV channel, ATV Plus, could
be received nationwide through cable networks and house antennae.
Austrian
legislation dealt with defamation both under the Media Act and the Criminal
Code. Section 6 of the Media Act provided for the strict liability of the
publisher in cases of defamation; the victim could thus claim damages from the
publisher. Article 111 of the Criminal Code prescribed a fine or a prison
sentence of up to 12 months for defamation.[4]
In 2003,
several cases were pending before the EctHR against
Judicial System
In
2003, the Austrian government presented a draft reform of the country’s
Criminal Code[7] and
Criminal Procedure Code[8].
The Criminal Procedure Code was adopted in March 2004 while the Criminal Code
remained pending in parliament.
The
new Criminal Procedure Code provides for an extensive revision of the old code,
part of which goes back as far as 1873. The preliminary proceedings are
restructured. Victims’ rights are improved through measures such as expanding
the right to information about the proceeding, easier access to legal aid and
the right for victims of violence and sexual abuse to have psychological and
legal assistance during proceedings.
While the above-mentioned novelties have been welcomed
and widely accepted, some parts of the draft have been opposed by some experts
and the political opposition.[9] It
has been heavily criticized that, although in the future the preliminary
investigation will be carried out mainly by the police under the guidance of
the prosecutor (instead of the examining magistrate), the minister of justice
will retain the right to issue instructions towards the prosecutor. Therefore,
it cannot be ruled out that the minister might use his power to influence the
investigation in favor or against a certain outcome. Furthermore, the suspected
person’s rights, such as access to records or the right to legal assistance,
can be constrained or even suspended if it is considered as necessary to
prevent any interference with the investigation or with evidence. The new code
also provides for the possibility for the coercive taking of blood samples from
people not directly suspected of a crime, a provision that has triggered
criticism as being in breach of the Austrian Constitution and the ECHR.[10]
Among
other things, the draft Criminal Code contains some important and long overdue
improvements to legislation on sex offenses. It proposes that in the future,
rape within a marriage would be dealt with in the same manner as every other
form of rape, whereas previously it was considered a less severe offense.
Additionally, the element of “sexual assault” is expanded to include
“grabbing.” The draft also tightens the regulations concerning trafficking in
human beings.
The
controversial proposal of the Minister of Justice, Dieter Böhmdorfer, to build
prisons in
No progress was made in the rehabilitation of the victims
of the National Socialist military justice system. In 1999 the Austrian
parliament decided to exonerate those unjustifiably convicted by Nazi military
courts,[13]
however, since then, almost no progress was made on the matter.
Torture, Ill-treatment and Police Misconduct
As
in previous years, there were repeated reports of police misconduct especially
in relation to people of different skin-color or ethnic origin than the
majority population. The types of abuses ranged from verbal assaults to
ill-treatment.
The most serious alleged case of alleged police misconduct was connected
to the tragic death of Seibane Wague.
Articles 14
and 15 of the Constitutional Act on General Human Rights of Citizens provided
for freedom of religion and created a system of state-recognized and
non-recognized churches and religious communities.
Three
legislative acts provided the framework for legal recognition: the 1874 Law on
Recognition of Churches and Religious Communities for “state-recognized
churches and religious communities” (staatlich
anerkannte Kirchen und Religionsgemeinschaften); the 1998 Law on the Status
of Religious Communities providing for “confessional communities” (Bekenntnisgemeinschaften); and the 2002
Law of Association providing for a status of “associations” (Vereine).
Thirteen religious organizations were recognized
by the state: the Catholic Church, the
The 1998 law introduced additional criteria in order to
gain the status of a “state-recognized religion”: membership of at least 0.2%
of the population (approximately 16,000) and a 20-year period of existence, at
least ten of which must be as a “confessional community.” However, should the
0.2% criteria had been systematically applied in practice, only four of the 13
state-recognized churches and religious communities would have been recognized.
In 2003, the Coptic Orthodox Church was granted the status of a
state-recognized religion by a special law, although it only had 1,600 members
and had only been a “confessional community” since 1998.
“Confessional communities” (under the 1998 law) had to
have at least 300 members. Their doctrine and statutes needed to be submitted
to the Federal Ministry of Education, Science and Culture for examination and
decision. Their official status did not provide for fiscal and educational
privileges enjoyed by “state-recognized religions.” Their legal status was
similar to the status of “associations” under the 2002 law, which entitled them
to own property. Apart from that, they were given some insignificant
privileges, unlike “associations.” The confessional communities were: Jehovah’s
Witnesses, Free Christian Society/Pentecostals, Evangelical Alliance,
Seventh-day Adventists, Hindu Religious Community, Baptists, Movement of
Religious Renewal, Baha’i Faith and Mennonites.
The existing
system and in particular the 1998 Law on Confessional Communities was
inherently discriminatory as it de facto prevented
religious organizations from obtaining a state-recognized status and relegated
them to a second-class status.
Islam
was granted the status of “state-recognized religion” by a special law in 1912.
Under a separate act, the “Islamic Denomination” had public legal status and
had represented the Islamic community since 1988. Besides, there had been
Islamic religious instruction in public schools since 1982/83.
There was no
law banning headscarves (hijab) and
many girls wore them to school. Teachers were allowed to wear headscarves in
Islamic religious lessons in public schools. Problems, however, were
encountered in everyday life: wearing a headscarf led to cases of intolerance
and some discrimination in various sectors such as housing and employment.
A new law on animal protection was in the drafting
process. Some members of the FPÖ questioned the appropriateness of allowing the
slaughter of animals on religious grounds in the new law, despite the 1998
decision of the
In 1998, the Austrian Parliament passed the Federal Law
for the Establishment of a Documentation and Information Office for Matters
Concerning Sects. The tasks of this office, whose head was appointed and
supervised by the minister for social security and generations, were to collect
and distribute information about dangers originating from programs or
activities of sects or sect-related activities.
The law was
not applied to state-recognized churches and religious communities and was
therefore discriminatory. Besides, there was no legal protection in cases of
defamation of religious organizations.
The
distribution in public schools of a CD-ROM entitled “The Search for Meaning: an
Orientation Guide to Organizations that Offer the Solution” caused some controversy.
It was prepared by the Catholic Diocese of Linz in collaboration with the
deputy governor of
National
and Ethnic Minorities
Six national
minorities were officially recognized under the 1976 National Minorities Act (Volkgruppengesetz): Croats, Slovenes,
Hungarians, Czechs, Slovaks, and Roma and Sinti. Furthermore, the Croatian and
Slovenian minorities enjoyed special cultural rights (e.g., using their
language in administration) in the federal entities of
The
long-standing conflict regarding bilingual topographic signs in municipalities
continued in
On a positive
note, in June the ORF began to expand its “ethnic minority program.” As a
result, radio stations in Burgenland and
During 2003, two EU directives came into force, setting
minimum standards for legal protection against discrimination: Directive
2000/43/EC (“Race Equality Directive”) and Directive 2000/78/EC (“Employment
Directive”). The former directive prohibited racial and ethnic discrimination
in employment, education, social security and healthcare, access to goods and
services and housing. The latter prohibited
discrimination in employment on grounds of religion and belief, disability, age
and sexual orientation.
On 13
November, draft legislation for an Equal Treatment Act (Gleichbehandlungsgesetz), an act on the establishment of an Equal
Treatment Commission and an Office of the Ombudsperson for Equal Treatment were
referred to in the Equal Treatment Committee of parliament. At the end of 2003
these were still pending, but were expected to be adopted soon.
The nine provinces of
The wording
of the Equal Treatment Act does, in most parts, follow that of the underlying
EU directives, which ought to ensure its smooth application without major
difficulties of interpretation. This, however, cannot be said of the important
issue of burden of proof. Whereas the EC directives intend to fully shift the
onus to the discriminator once a prima
facie discrimination can be established, the Austrian Equal Treatment Act
requires that an action for compensation be rejected when the defendant’s
version appears to be more plausible.[20]
Further
critique regards the composition of the draft Equal Treatment Commission, which
will draw its staff from several ministries and the “social partners” but not
from independent civil society organisations or pressure groups. The draft law
does not foresee any co-determination of NGOs and does not establish them as
privileged actors with the right to file actions in cases of discrimination.
Moreover, work in the commission is unpaid, meaning that its members can only
work for the cause of equal treatment on the side, in addition to working their
regular jobs, a fact that could erode the efficiency and credibility of the
institution.[21]
Political
commentators have broadly regretted that the government has not taken the
opportunity to elaborate a general anti-discrimination law (a comprehensive draft
was prepared by the Ludwig Boltzmann Institute of Human Rights in 2001) and has
largely refused to involve NGOs in the preparation of the law, which could have
positively contributed to the effort.[22]
The NGO ZARA
published its fourth annual report on racism and discrimination in
In many
reports received by ZARA, police officers had also used racist vocabulary or
acted in an inappropriate manner. Racist graffiti—especially against
Africans—on the walls of public buildings and on public transport were also
increasingly reported in 2003. Furthermore, numerous incidents indicated a
widespread attitude that black skin-colour was considered a synonym for
drug-dealer, danger, aggression and provocative behaviour. Discriminatory
attitudes against foreigners looking for a job or at their working place were
also relatively common.
Due to the lack
of an appropriate anti-discrimination law, it was difficult for the victims to
take effective measures to defend themselves in the face of racially motivated
discrimination or acts of violence.
A report,
published by the so-called Austrian Historical Commission (Historikerkomission) presented its comprehensive report on the
systematic confiscation of property of Jews and other victims during NS times,
as well as on restitution and compensation by the
Other victims
of confiscation (and in many cases deportation) were the nearly 10,000 Roma and
Sinti, several other ethnic groups (among them Slovenes), political opponents
(from Catholics and conservatives to Communists), homosexuals and handicapped
people. Property of the Catholic Church was also confiscated. In
the post-war period seven restitution laws were enacted, but they remained
insufficient (e.g. they ignored lost rented property, copyright and licenses).
The report concluded that the amount of money which has been spent on
restitution, has been largely insufficient.[26]
The
Austrian government adopted a new asylum law in the fall of 2003, which will
come into force on
During 2003,
32,240 asylum applications were filed, compared with 39,350 in 2002.[27]
The official approval rate was 28.4%. In 2003, the largest group of applicants
by far were persons from the
In 2003, the
police at
The October
amendments to the asylum law are aimed at expediting the processing of asylum
claims, but it was also officially stated that another aim was to make the law
more restrictive. Interior Minister Ernst Strasser, for example, pointed out
that the changes must fit into the European context, which in his view meant
aligning Austrian law to the more rigorous laws in
The amended
law foresees a procedure on admissibility (Zulassungsverfahren)
with a first interview within 48-72 hours of filing a claim. After that, the
applicant is informed orally if his/her claim is declared admissible or if
“there is an intention” to declare it inadmissible. If the claim is declared
admissible, the Federal Asylum Office shall decide within the following 20 days
whether to grant asylum already at this stage, to declare it inadmissible, or
to start a procedure on the merits of an admissible application. The asylum
seeker can appeal against inadmissibility but can be deported pending appeal.
The new law
puts an end to possibility to submit asylum claims at land borders altogether,
as all
Of major
concern is the fact that, under the new law, the submission of new evidence and
motives for flight at the appeal stage is only permitted in very restricted
cases, including if the asylum seeker was not able to present the facts earlier
due to a traumatization that can be “medically certified.”[35]
The UNHCR and other refugee organizations have noted that trauma is a condition
that is notoriously difficult to diagnose or measure. This provision does not
take into account that victims of torture or of gender-based persecution,
including sexual assault, are often understandably hesitant toward providing
details of the ordeal they have suffered, either because of feelings of pain
and humiliation, or because of strong cultural or religious taboos.[36]
Likewise it ignores the fact that many asylum seekers are distrustful,
exhausted, or wrongly informed, which makes them unable to disclose their
situation, even when they are informed of the necessity to do so.[37]
Another
worrisome feature of the new law is that it does not allow asylum seekers, who
appeal inadmissibility decisions, to stay in
Other
problematic provisions of the new law are the fact that a lawyer (or another
“person of confidence”) is not allowed to be present during the first interview
of the admissibility procedure; that asylum seekers are not allowed to leave
the reception center during the admissibility procedure; and that the interior minister
can declare a reception center barred for unauthorized persons if he thinks
this is necessary for maintaining order in the center. All such measures
contribute to further isolation of the asylum seekers and block their access to
necessary consultation and care.
Critics of
the new law, including some legal experts, have deemed the law unconstitutional
because it restricts the possibility to effectively appeal first instance
decisions, and because it compromises the principle of individual investigation
of claims. The regional government of
In August,
the implementation of a controversial 2002
Interior Ministry guideline was stopped after the Supreme Court had ruled for
the second time against it. The guideline had barred access to state-run
shelters and public care to asylum seekers from EU candidate
countries and a number of other countries while their appeals were pending. The
court stated that that every asylum seeker must be guaranteed public
care during the whole asylum procedure.[40]
On
After the
ruling the interior minister announced that he would try to find new places to
accommodate the asylum seekers and appealed to the regional governments,
municipalities and relief organizations to make available additional
accommodation. However, he stressed that he would accept such places only if
the respective mayors and village councils gave their consent—as a result of
which the situation did not change markedly, and the relief organizations still
had to accommodate people beyond their capacity. On 12 December the four
largest of them, Caritas, Diakonie, Red Cross and Volkshilfe, made an urgent
appeal to the interior minister demanding additional state funding for their
shelters.[42]
As of July,
the administration (housing, care, food supply and social care) of former
state-run refugee centers was privatized and a private German agency, European
Homecare, was contracted to take over the centers because its offer was the
least expensive.[43]
European Homecare was criticized for alleged inadequate care particularly
following a violent incident in the main center Traiskirchen in August 2003,
which led to the death of a Chechen man. In another incident that was disclosed
in February 2004, a woman had allegedly been raped by a member of the security
service hired by European Homecare.
[1] Der Standard, “Unabhängigkeit, die sie meinen: FPÖ und ORF, 5 April 2003; Institut der Kommunikationswissenschaft der Universität Salzburg,” Bericht zur Lage des Journalismus in Österreich – Ein Qualitäts-Monitoring, Erhebungsjahre 2002/2003, at http://www.kowi.sbg.ac.at/journalistik/vojournalistik/Journalismusbericht/Journalismusbericht%202003.pdf
[2] Der Standard, “ÖVP will ORF zu Parteifernsehen machen“ and “Im ORF droht totale Machtübernahme durch ÖVP, 25 Februar 2004; Falter, “Ein Land sieht schwarz,“ November 2002, at http://www.falter.at/print/F2002_48_1.php
[3] Media-Analyse, “1. Halbjahr 2003,” at http://www.media-analyse.at/frmdata103.html.
[4] Verlagsgruppe News v.
[5] In the Austrian context, “brown” refers to
National Socialists, “black” to the ÖVP and “red” to the Socialist Party (later
renamed to the Social-Democratic Party).
[6] Scharsach
and News Verlagsgesellschaft v.
[7] Ministry of Justice, Strafrechtsänderungsgesetz 2003, at http://www.justiz.gv.at/gesetzes/download/straeg2003.pdf
[8] Ministry of Justice, Strafprozessreformgesetz, at
http://ris1.bka.gv.at/authentic/index.aspx?page=doc&docnr=1.
[9] Austrian Parliament, “Strafprozessreform im Justizausschuss verabschiedet,“ 20 February 2004, at http://www.parlament.gv.at/portal/page?_pageid=908,649421&SUCHE=J&P_TEXT=1&P_MEHR=J&_dad=portal&_schema=PORTAL
[10] Kurier, “SP ficht Strafprozessordnung an,” 17 February 2004; the Green Party, “Verfassungswidrigkeit, mangelnde Beschuldigtenrechte und Defizite beim Opferschutz in der StPO-Reform,” Press conference, 17 February 2004, at http://www.gruene.at/texte/dokument_21933.doc.
[11]FPÖ, “Böhmdorfer: Eckpunkte für Gefängnisbau in Rumänien fix,” at http://www.fpoe.at/bundneu/home/news/index_news_1444.htm.
[12] Ministry of Justice, “Justizminister Dr. Böhmdorfer in Rumänien – Verstärkte Zusammenarbeit beim Strafvollzug,” at http://www.bmj.gv.at/presse/detail.php?id=212.
[13] Politik portal.at, “Grüne beantragen Rehabilitation von Opfern der NS-Militärjustiz,” at http://www.politikportal.at/?goto=%2Fmeldung.php?schluessel=OTS_20040220_OTS0195.
[14] No-racism.net, “Rassistische Rechtsprechung: Bezeichnung ‘Scheiß Neger’ verstößt nicht gegen Menschenwürde,” 12 August 2003, at http://www.no-racism.net/staatsrassismus/rassistische_justiz120803.htm.
[15] Der Standard, “’Scheiß Neger’ verletzt doch Menschenwürde," 6/7 March 2004.
[16] For further information, see http://www.orf.at/040130-70331/index.html?url=http%3A//www.orf.at/040130-70331/70332txt_story.html.
[17] Der Standard, “Staatsanwalt ermittelt wegen fahrlässiger Tötung,” 22 July 2003.
[18] Der Standard, “Schuldspruch für Wiener Polizei,” 2 February 2004.
[19] E.U. Network of Independent Experts on
Fundamental Rights, “Report on the Situation of Fundamental Rights in
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] ZARA, Zivilcourage und
Anri-Rassismus-Arbeit, Rassismus Report 2003, at http://www.zara.or.at/01_06.html.
[24] Der Standard, “Amnesty: Blanker Rassismus,” 21 January
2004.
[25] Der Standard, “Juden mussten Vernichtung selbst finanzieren,” 24 February 2003, at http://derstandard.at/?id=1220897.
Der Standard, “Ungeheure Dimension,” 24 February 2003, http://derstandard.at/?id=1220721.
The report of the Historical Commission can be found at http://www.historikerkommission.gv.at.
[26] Ibid.
[27] UNHCR, “Asylum Levels and Trends:
[28] Asylkoordination Österreich, “Asylstatistik
2003 – Jeder Vierte erhält Asyl, jeder Dritte Schutz,”
[29] BBC Monitoring International Reports, “New
checks implemented at Austrian airport to discover illegal immigrants,” quoting
Die Presse,
[30] The law Asylgesetz
1997 (AsylG-Novelle 2003) is posted at http://www.parlament.gv.at/portal/page?_pageid=908,145444&_dad=portal&_schema=PORTAL.
[31] BBC Monitoring International Report, “Austrian
interior minister defends new asylum bill,” quoting Der Standard,
[32] Additionally from May 2004, the neighboring
countries, the
[33] BBC Monitoring International Report, “Austrian
interior minister defends new asylum bill,” quoting Der Standard,
[34] UNHCR, “UNHCR-Chef Lubbers warnt: EU-Asylregeln könnten internationale Standards untergraben,” 24 November 2003, at www.unhcr.at.
[35] Other circumstances that would justify new
claims during appeal under the new law are: a flawed initial procedure, major
changes of facts in the case, and occurrence of new facts after the initial
decision.
[36] UNHCR, “UNHCR says Austrian legislation may
lead to breaches of UN Convention,”
[37] Asylkoordination Österreich, “Presseaussendung der asylkoordination Österreich zur Asylrechtsänderung,” 5 May 2003, at www.asyl.at.
[38] UNHCR, “
[39] Ibid.
[40] This list included, for example, the
[41] Der Standard, “Österreich für Flüchtlinge Schlusslicht in der EU,” 25 August 2003.
[42] Neue Zürcher Zeitung, “Neue Kontroverse um Asylpolitik in Österreich,” 13/14 December 2003.
[43] Another offer, which was only slightly more
expensive, came from a consortium of the Red Cross, Caritas, Diakonie and
Volkshilfe, all organizations with long-time experience in running refugee
accommodation centers and shelters for asylum seekers, as well as in providing
legal and social services.