Constitutional Framework

Constitutional Framework

Austria is a parliamentary democracy of the kind that exists in most of Western Europe. The legal basis for the Austrian system of government is the constitution of 1920, which was amended in 1929 and several times thereafter. The constitution of 1920 provided a transition from Austria-Hungary (also seen as the Austro-Hungarian Empire) to a democratic federal republic in which the law emanates from the people. The constitution was suspended from 1934 to 1938 during the authoritarian administrations of Engelbert Dollfuss and Kurt von Schuschnigg and again during the Anschluss that was forced on Austria by Adolf Hitler from 1938 to 1945. Since 1945, when the Second Republic was proclaimed, Austria has been governed by the 1920 constitution as amended.

Executive, legislative, and judicial branches of government were established by the 1920 constitution, with the executive branch subordinate to the legislative branch. The federal presidency as established by the 1920 constitution was a weak political office whose incumbent was elected by a joint session of the bicameral legislature, the Bundesversammlung (Federal Assembly). The constitutional amendments of 1929 increased the president's political role by granting him the formal power to appoint or dismiss the chancellor and, on the chancellor's recommendation, the cabinet. The 1929 amendments also provided that the right of electing the president be taken away from the legislature and given to the people.

Austria's political system is federal in nature, reflecting the fact that the country consists of nine provinces. Although Article 15 of the constitution states that the provinces shall have jurisdiction over all matters not explicitly reserved for the federal government, Austrian federalism is weak and underdeveloped. The areas of law reserved for the provinces are few in number and relatively unimportant. Among the areas where the federal government is almost exclusively responsible are foreign affairs, national security, justice, finance, civil and criminal law, police matters, and education. In other areas of law, the provinces are called on to pass implementing legislation for matters already decided at the federal level. This process, known as indirect federal administration, applies to areas such as elections, highway police, and housing affairs. Other laws are made and administered at the provincial level, but within federally established guidelines. These concern social welfare, land reform, and provincial administration. Areas where the provinces have primary authority include municipal affairs (for example, trash removal and major aspects of zoning), preschool and kindergarten, construction laws, fire control, and tourism. The constitution does not include a bill of rights as such, but it does guarantee equality before the law and further guarantees that there shall be no discrimination because of birth, gender, civil status, class, or religion. Individual rights are further defined by inclusion in the constitution of the final article, which raises certain older Austrian laws to the rank of constitutional law. Among them is the Basic Law of December 1867, which establishes equality before the law, inviolability of property, and freedom of assembly, expression, and worship. Laws promulgated in 1862 set forth individual rights regarding personal liberty and one's home. These rights include not being held without a warrant and, except in unusual circumstances, not allowing homes to be searched without a warrant.

Some restrictions are placed on freedom of expression and association. Proper authorities must be informed when a new association is formed. Officials then have six weeks to object to its formation if the group is thought to be illegal or a potential threat to the republic. Since the Second Republic was established in 1945, care has been taken to ensure that laws concerning individuals are in accord with the United Nations Universal Declaration of Human Rights of 1948.

Amendments to the constitution can be made through laws designated constitutional laws or through constitutional provisions if the amendment is part of another law. Passage of an amendment requires a two-thirds majority vote in the presence of at least one-half the members of the Nationalrat (National Council), parliament's lower house. Constitutional laws or provisions are accompanied by a national referendum only if requested by one-third of the deputies of either the Nationalrat or the Bundesrat (Federal Council), parliament's upper house. In 1984 a constitutional amendment provided that amendments changing the division of responsibilities between the federal government and the provinces require the approval of two-thirds of the Bundesrat as well as two-thirds of the Nationalrat.

In addition to the amended constitution, two laws--a treaty and a constitutional law--are particularly important to the constitutional development of Austria because they concern the country's international status and reaffirm the people's basic rights. In April 1955, a stalemate over the restoration of full sovereignty to Austria was finally broken when the Soviet Union agreed to drop its insistence that a solution to the Austrian question be tied to the conclusion of a peace treaty with Germany. This paved the way for the signing of the State Treaty in May 1955 by the Four Powers (Britain, France, the Soviet Union, and the United States) and Austria. The treaty established Austria's frontiers as those existing on January 1, 1938, and forbade economic or political union with Germany. Rights to a democratic government and free elections were guaranteed, and the document reiterated guarantees of fundamental rights and freedoms, including equal rights for minorities. Specifically mentioned in this category were Slovenes and Croats. The second law of constitutional importance is the Federal Constitutional Law of October 26, 1955, on the Neutrality of Austria. The law declared the country's permanent neutrality and prohibited it from entering into military alliances or allowing foreign countries to establish military bases within the borders of Austria.

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