Supreme Court of Justice (Austria)

The Supreme Court of Justice (German: Oberster Gerichtshof or OGH) is the final appellate court of Austria for civil and criminal cases. Along with the Supreme Administrative Court and the Constitutional Court, it is one of Austria's three courts of last resort.

Supreme Court of Justice
Oberster Gerichtshof
Established1848
LocationPalace of Justice, Vienna
Composition methodPresidential appointment on nomination of the minister of justice
Authorized byFederal Constitutional Law
Number of positions60 (August 2022)[1]
Websiteogh.gv.at
President
CurrentlyElisabeth Lovrek[2]
Since1 July 2018
Vice President
CurrentlyEva Marek[3]
Since1 February 2018
Vice President
CurrentlyMatthias Neumayr[4]
Since2018

The Court does not have a fixed number of members. As of the early 21st century, there are typically between fifty and sixty justices on the Court. The responsibility for appointing Supreme Court justices is vested in the president of Austria, but the president can and usually does delegate this task to the minister of justice. The minister picks from a shortlist of three nominees provided by the Court itself.

The Supreme Court of Justice convenes in the Palace of Justice in Vienna.

Background

The Austrian judiciary is organized into general courts (ordentliche Gerichte) and courts of public law (Gerichte öffentlichen Rechts). The courts of public law are responsible for the executive and legislative branches of government. One of its limbs, the administrative court system, reviews the legality of administrative acts.[5] Its other limb, the Constitutional Court, adjudicates on liability claims against Austria, its its states and municipalities,[6] handles demarcation conflicts between courts of law, or between courts and members of the public administration;[7] hears complaints regarding the constitutionality of statutes or the legality of ordinances,[8] hears election complaints,[9] and hears complaints regarding the conduct of sitting elected officials and political appointees.[10] While the general courts deal with all civil and criminal cases as well as so-called "non-adversary proceedings" (Außerstreitverfahren), such as inheritance or guardianship matters.[11]

In most cases, original jurisdiction lies with a district court (Bezirksgericht); the decision of a district court can be appealed to the respective regional court (Landesgericht). Some cases are tried directly before a regional court and may then be appealed to a higher regional court (Oberlandesgericht). The four higher regional courts and the Supreme Court of Justice do not have original jurisdiction and are limited to hearing appeals.[12]

Any party to a general court case can file an appeal on points of fact and law (Berufung).[13] If the case is a civil case, the appellate court will examine whether the trial court has made any procedural errors: if yes, it orders a retrial, sending the case back to the trial court;[14] if no, or if the case is criminal, the appellate court conducts what is essentially a retrial itself. An appellate trial does not merely review points of law but also points of fact, assessing evidence and questioning witnesses again.[15]

An "appeal-at-law" (Revision in civil trials, Nichtigkeitsbeschwerde in criminal cases) can be filed against the decision of an appellate court.[16] In criminal cases, appeals-at-law that are not obviously frivolous are also handled in public hearings.[17] A successful appeal-at-law not only overturns but utterly erases the ruling of the appellate court, sending the case down the ladder again.[18] Decisions of trial courts − although not of appellate courts − that result from a trial court's invocation of an unconstitutional statute or an illegal ordinance can be challenged before the Constitutional Court by filing an "extraordinary appeal-at-law".[19]

Powers and responsibilities
A statue of Iustitia in the Austrian Palace of Justice, the seat of the Supreme Court since 1881

The Supreme Court of Justice hears appeals-at-law (Revisionen and Nichtigkeitsbeschwerden) against rulings of lower appellate courts.[20] In addition to that, the Court also deals with some intra-judicial disputes. It hears, as court of first instance, complaints lodged by judges against the public administration and disciplinary complaints against certain senior judges and prosecutors.[21] It has appellate jurisdiction in disciplinary proceedings against lower-ranking judges and prosecutors, attorneys, and notaries. Decisions handed down by the Court are final; there is no appeal against the Supreme Court of Justice in internal affairs proceedings any more than there is in ordinary trials.[22]

In addition to its adjudicative functions, the Court is charged with publishing appraisals of draft legislation presented to the National Council by the Cabinet; the Court is required to evaluate a Cabinet bill if asked to do so by the president of the Court or the minister of justice.[23] The Court does not have the authority to actually veto legislation, however, and neither does it have the soft power to make draft bills politically untenable. Austria is a parliamentary democracy in which most bills originate not from individual lawmakers but from the Cabinet; the country has had strong consociationalist tendencies historically and remains highly consensus-oriented to this day.[24] Formal expert opinions on draft bills offered by political lobbying groups, professional associations, churches, regional governments, and various arms of the federal bureaucracy are a routine part of the legislative process; neither the Cabinet nor the legislature are required to defer to any of them.[25]

The Court maintains the Central Library (Zentralbibliothek), Austria's official public law library.[26]

Composition

The Supreme Court of Justice consists of a president, a vice president, and as many additional members as Court and Cabinet deem necessary and appropriate.[27] Since the early 21st century, the Court typically has fifty to sixty members.[28] As with any other general court, Supreme Court justices are professional judges; they have graduated from law school, done several months of internship-type practical work in an actual courthouse,[29] received four years of post-graduate training,[30] and passed a special exam.[31] Supreme Court justices cannot be members of a cabinet or legislative body.[32]

The responsibility for appointing justices is vested in the president of Austria, but the president can and usually does delegate this power to the minister of justice.[33] The Court maintains a special personnel committee (Personalsenat) that provides the minister with a shortlist of three candidates in the event of a vacancy.[34] In theory, the minister may appoint any Austrian legally qualified to sit on the bench (and not excluded by the constitution's rudimentary incompatibility provisions). In practice, the minister dependably picks one of the three candidates nominated by the Court.[35]

Process

For the purpose of actually trying cases, the Court is partitioned into 18 panels (Senate) of five members each.[36] As everywhere in the Austrian court system, panels are subject to a fixed and specific apportionment of responsibilities (feste Geschäftseinteilung).[37] The fixed apportionment is meant to prevent the Cabinet from influencing outcomes by hand-picking a panel sympathetic to its perspective.[38] One panel exclusively deals with appeals decisions reached by arbitration tribunals; another panel hears appeals against antitrust verdicts handed down by the Vienna higher regional court, which has specialist exclusive jurisdiction over all Austrian antitrust cases. A third panel handles disciplinary proceedings and other disputes internal to the judiciary. Of the remaining fifteen panels, ten deal with regular civil cases and five with criminal trials.[39]

A new case that comes before the Court is first assigned to the relevant panel. One of the members of the panel is appointed case manager (Berichterstatter). The case manager directs the preliminary research. An office staffed with about 30 to 40 researchers and other assistants is attached to the Court to aid case managers in this task.[40] Once the preliminary investigation is complete, the panel convenes, hears the official presentation of case and research by the case manager, deliberates, and votes. The case manager votes first, the presiding justice votes last; other members vote in order of decreasing seniority.[41]

In cases that are trivial or routine, the panel is permitted to meet as a panel of just three (Dreiersenat).[42] If a panel of five (einfacher Senat) suspects that a case currently before it may raise a question of law of wider importance (Rechtsfrage von grundsätzlicher Bedeutung) and that existing Supreme Court case law in the matter is ambiguous or inconsistent, the panel has to add an additional six members, for a total of eleven. A case that raises a question of law of wider importance also requires a panel of eleven (verstärkter Senat) if the verdict is going to overturn a large body of existing Supreme Court case law (ein Abgehen von der ständigen Rechtsprechung) or a verdict handed down by another panel of eleven.[43]

The Court only rarely meets in plenum; a plenary session is mainly required to authorize the yearly activity report.[44]

History
As an independent tribunal committed to the rule of law, the Supreme Court was first established during the reign of Ferdinand I.

Absolutist era

Between shortly after 1300 and shortly before 1800, the Habsburgs had gradually transformed their empire from a personal union of numerous independent realms and territories into a highly centralized unitary state.[45] Feudal structures had been replaced with rules-based bureaucracies, hereditary local potentates with professional civil servants. The consolidation and modernization of jurisprudence, on the other hand, had been allowed to lag. Civil and criminal procedure as well as the criminal code proper had made great strides forward during the reigns of Maria Theresa and Joseph II in the late 18th century, a period of rapid and profound reform.[46] In the early 19th century, Emperor Francis II had revolutionized the civil code. In terms of its organizational structure, however, the Court system was still essentially medieval.[47]

Original jurisdiction over most civil and criminal matters resided with local princes (Landesfürsten) in some regions, with the estates of the realm (Landstände) in others, with petty landlords in parts of the countryside, and with proto-democratic municipal governments in certain cities. Clergy, aristocracy, transients, or members of guilds could be subject to claims of jurisdiction based not on locale or subject matter but purely on social class.[48] There was no systematic separation of powers between judiciary and administration.[49] The State as such mostly only exercised a limited amount of appellate jurisdiction. The Supreme Judicial Office (Oberste Justizstelle) in Vienna, created by Maria Theresa in 1749, functioned both as a token court of last appeal and as a rudimentary ministry of justice.[50]

Constitutional era
Although he originally resisted judicial independence and the separation of powers, Franz Joseph I ended up presiding over the development of Austria's modern system of general courts.

The Revolutions of 1848, whose goals included constitutional rule, equality before the law, and the abolition of outdated remnants of the feudal system, finally forced the Habsburgs to take drastic action. The first milestone was the Pillersdorf Constitution enacted by Emperor Ferdinand in April 1848. The constitution promised increased civil liberties, provided for a limited form of democratic participation in government, and stipulated that from now on all jurisprudence would be within the purview of the emperor, implicitly promising and end to Austria's jumbled mess of landlord, estate, and ecclesiastical courts.[51] Another milestone was an edict issued on August 21 abolishing the Supreme Judicial Office and creating the Supreme Court of Cassation (Oberster Gerichts- und Kassationshof).[52]

When Ferdinand's concessions failed to appease the revolutionaries and Ferdinand was forced to abdicate, his successor, Emperor Franz Joseph, promulgated the March Constitution, elaborating on a number of the provisions of the Pillersdorf Constitution. In particular, the March Constitution confirmed that the judicial powers and responsibilities of landlords, cities, and ecclesiastical corporations were abolished. All disputes were to be settled by the State, in courts explicitly created by statutory law and according to procedure explicitly set forth in statutory law.[53] The new constitution also expressly established judicial independence[54] and the separation of powers of judiciary and executive.[55]

Subsequent legislation pursuant to the March Constitution created a system of general courts that also survived, with a few significant but narrow alterations, to this day.[56] Most notably, the Constitution of the Courts (Gerichtsverfassungsgesetz or GVG) of June 1849 and the Penal Procedure Code (Strafprozessordnung or StPO) of January 1850 implemented an empire-wide hierarchy of trial and appellate courts that is virtually identical to the contemporary system.[57]

A statute enacted in August 1850 established the panel system and otherwise detailed Supreme Court organization and procedure.[58]

Effective 1852, Franz Joseph rescinded the March Constitution, attempting to reestablish himself as an absolute monarch.[59] A complete rewrite of the Penal Procedure Code in 1853 eliminated judicial independence and, partially, the separation of powers.[60] The hierarchy of trial and appellate courts in general and the Supreme Court of Cassation at its top in particular, however, survived. The Court then also survived the gradual return to constitutional rule between 1860 and 1868, although it lost jurisdiction over the eastern half of the empire when the Lands of the Crown of Saint Stephen gained legal independence ensuing the Austro-Hungarian Compromise of 1867.[61]

Republic

The collapse of the empire at the end of World War I and the Austrian rump state's subsequent transition from monarchy to democratic republic necessitated a number of changes to Austria's system of courts of public law. The system of general courts, on the other hand, remained largely unaffected, except of course for its drastic decrease in geographic reach. A pair of laws enacted by the emerging republic's provisional government in late 1918 and early 1919 confirmed the Supreme Court in its existence. The only thing the transition really changed was the name: the Supreme Court of Cassation (Oberster Gerichts- und Kassationshof) became the Supreme Court of Justice (Oberster Gerichtshof).[62] Both the Kelsen Constitution of 1920 and the Austrofascist Federal State of 1934 retained the Court unaltered.[63][64]

Suspension under the Nazis

The absorption of Austria into the German Reich in March 1938 made the Supreme Court superfluous and, in fact, inconvenient. For one thing, the German judiciary used the same four-tier hierarchy as its Austrian counterpart. The judicial districts served by German and Austrian local, regional, and higher regional courts, respectively, were roughly comparable in size. Decisions of Germany's 28 higher regional courts were appealed to the Reichsgericht in Leipzig; there was no strong reason for an extra appeals court intermediating between the Reichsgericht and the paltry 3 higher regional courts of the Reich's new territorial addition, the State of Austria (Land Österreich). For another thing, the Nazis were already planning to dissolve the State of Austria into a number of unlinked provinces (Reichsgaue) in the near future; any institution that expressly and specifically served the territory traditionally known as Austria would eventually have to be disbanded in any case.[65] The Court ceased operations in March 1939.[66]

When Austria regained independence in 1945, the Supreme Court was swiftly brought back. Since then, its role and institutional structure have remained largely unchanged.[67][68][69]

Citations
  1. Richterinnen und Richter.
  2. Elisabeth Lovrek.
  3. Eva Marek.
  4. Matthias Neumayr.
  5. Berka 2016, pp. 282, 301–303.
    Öhlinger 2007, p. 273.
  6. B-VG, Art. 137.
    Berka 2016, pp. 383−385.
    Öhlinger 2007, p. 445.
  7. B-VG, Art. 138.
    Berka 2016, pp. 385−386.
    Öhlinger 2007, pp. 446−447.
  8. Berka 2016, pp. 50, 333−334, 363, 366, 379–381.
    B-VG, Art. 139–140.
    Öhlinger 2007, pp. 449−454.
  9. B-VG, Art. 141.
    Berka 2016, pp. 389−390.
    Öhlinger 2007, pp. 469−470, 473.
  10. B-VG, Art. 142.
    Berka 2016, p. 391.
    Öhlinger 2007, pp. 473−474.
  12. Brauneder 2009, pp. 127–128, 201–202, 223.
    Öhlinger 2007, pp. 269, 271, 273, 442.
    StPO, §29.
  13. StPO, §280.
    ZPO, §461.
  14. ZPO, §477, §494, §496.
  15. ZPO, §482, §484.
  16. StPO, §§502-505.
    ZPO, §280.
  17. StPO, §§285c-285d, §286.
  19. B-VG, Art. 140.
  20. Aufgaben, Oberstes Organ.
    StPO, §34.
  21. RStDG, §82, §90.
  22. RStDG, §111.
    Aufgaben, Dienst- und Disziplinargerichtsbarkeit.
  23. OGHG, §11.
    Aufgaben, Gesetzesbegutachtung.
  25. Pelinka 1998, pp. 50–56.
  26. Aufgaben, Zentralbibliothek.
    Zentralbibliothek.
  27. B-VG, Art. 92.
    OGHG, §1 (2).
  28. Foster 2013, p. 38.
    Graf 2006, p. 76.
    Stelzer 2011, p. 188.
  29. RStDG, §2.
  30. RStDG, §9.
  31. RStDG, §16.
  32. B-VG, Art. 92 (2).
  33. B-VG, Art. 86 (1).
  34. B-VG, Art. 86 (2).
    RStDG, §25, §32, §33.
  35. Graf 2006, p. 76.
  36. OGHG, §6.
    Aufgaben, Fünfer Senate.
  37. B-VG, Art. 87−88.
    OGHG, §13.
  38. Berka 2016, pp. 269−271.
    Öhlinger 2007, pp. 269−270.
  40. Graf 2006, p. 76.
    OGHG, §14.
  41. OGHG, §5 (2).
  42. OGHG, §6.
    Aufgaben, Dreier Senate.
  43. OGHG, §8.
    Aufgaben, Verstärkter Senat.
  44. OGHG, §9.
  45. Brauneder 2009, pp. 79–85, 101.
    Pernthaler 1989, pp. 30–31.
  47. Olechowski 2019, pp. 97–99.
  48. Brauneder 2009, pp. 29, 37–40, 44, 66, 93–94.
  50. Adamovich 1947, pp. 6–7.
    Brauneder 2009, p. 93.
  51. Brauneder 2009, pp. 112−114.
    Hoke 1996, pp. 341−345.
  53. RGBl 1848/150, §20, §100.
  55. RGBl 1848/150, §102.
    Brauneder 2009, pp. 119, 122, 125, 127−128.
    Hoke 1996, pp. 345−353, 356–357.
  56. Brauneder 2009, pp. 127−128.
  59. Brauneder 2009, p. 134.
    Hoke 1996, pp. 359−360.
  60. Brauneder 2009, pp. 145−146.
    Hoke 1996, pp. 361, 363−364.
  61. Brauneder 2009, pp. 154−155.
    Hoke 1996, pp. 370−371, 385−387.
    Österreichisch-Ungarische Monarchie.
  65. Adamovich et al. 2011, pp. 88−89.
    Botz 1976, pp. 100–107.
    Schaarschmidt 2017, pp. 221−230.
  67. StGBl 1945/47, §1, §4.
    StGBl 1945/94, §25, §69.
  68. Brauneder 2009, p. 259.

References

English books
  • Foster, Nigel (2013). Austrian Legal System and Laws. Routledge. ISBN 978-1-135-33658-5.
  • Lijphart, Arend (1999). Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries. New Haven and London: Yale University Press. ISBN 978-0-300-07893-0.
  • Pelinka, Peter (1998). Out of the Shadow of the Past. Boulder, Colorado: Westview Press. ISBN 978-0-8133-2918-5.
  • Schaarschmidt, Thomas (2017). "Multi-Level Governance in Hitler's Germany: Reassessing the Political Structure of the National Socialist State". Historical Social Research. 42 (2): 282−242. JSTOR 44234960.
  • Stelzer, Manfred (2011). The Constitution of the Republic of Austria: A Contextual Analysis. Boomsbury. ISBN 978-1-847-31649-3.

German books
  • Adamovich, Ludwig (1947). Grundriss des österreichischen Verfassungsrechts (4th ed.). Vienna: Springer. ISBN 978-3-709-13505-1.
  • Adamovich, Ludwig; Funk, Bernd-Christian; Holzinger, Gerhart; Frank, Stefan (2011). Österreichisches Staatsrecht. Band 1: Grundlagen (2nd ed.). Vienna: Springer. ISBN 978-3-211-89396-8.
  • Berka, Walter (2016). Verfassungsrecht (6th ed.). Vienna: Österreich Verlag. ISBN 978-3-7046-7281-0.
  • Botz, Gerhard (1976). Die Eingliederung Österreichs in das Deutsche Reich. Planung und Verwirklichung des politisch-administrativen Anschlusses (1938−1940). Europaverlag. ISBN 978-3-203-50627-2.
  • Brauneder, Wilhelm (2009). Österreichische Verfassungsgeschichte (11th ed.). Vienna: Manzsche Verlags- und Universitätsbuchhandlung. ISBN 978-3-214-14876-8.
  • Hoke, Rudolf (1996). Österreichische und deutsche Rechtsgeschichte (2nd ed.). Vienna: Böhlau Studienbücher. ISBN 978-3-205-98179-4.
  • Öhlinger, Theo (2007). Verfassungsrecht (7th ed.). Vienna: Facultas. ISBN 978-3-7089-0152-7.
  • Pernthaler, Peter (1989). Kompetenzverteilung in der Krise. Vienna: Wilhelm Braumüller. ISBN 978-3-7003-0811-9.
  • Olechowski, Thomas (2019). Rechtsgeschichte (8th ed.). ISBN 978-3-7089-1846-4.

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