The Constitutional Court of Austria


The Decision Process

Commencement of proceedings

The Constitutional Court cannot initiate proceedings on its own accord. All Constitutional Court proceedings are triggered by a petition which, depending on the type of proceedings, may be submitted under different names (e.g. complaint, challenge to elections, petition in the narrow sense of the term).

With few exceptions (for territorial authorities and their bodies, as well as in electoral proceedings), every petition has to be submitted by a lawyer equipped with power of attorney. Low-income petitioners may apply for legal aid, including the provision of legal counsel free of charge.

Every incoming case is given a file number and assigned by the President to a Permanent Reporter – or exceptionally to another member of the Court – who will work on the case and prepare the decision. When assigning cases, the President is not bound by any procedural rules, as there is no established division of responsibilities. However, a division by fields of law, considering the specific experience of the Permanent Reporters and ensuring a fair distribution of the work load, has proved its merits in practice.

Preliminary proceedings and preparation of the decision

Having been assigned a case, the Permanent Reporter first examines the requirements of admissibility to establish whether the case is within the jurisdiction of the Constitutional Court, the complaint has been submitted in due time and the petitioner is authorized to submit a petition, as well as to verify compliance with the formal legal requirements. Petitions that do not meet the formal requirements are returned to the petitioner - provided the defect identified can be corrected – for correction and re-submission within a certain period of time.

If an application for legal aid or – in the case of a complaint – for temporary relief (suspensive effect) has been submitted, a decision is usually taken during this stage of the proceedings.

If the Permanent Reporter considers a submission (petition, complaint, law suit, etc.) to be inadmissible or inherently flawed, he/she prepares a draft decision to reject the petition. If he/she regards a complaint against a ruling by the Constitutional Court as manifestly unsuited for further consideration, because it has no chance of success or does not serve to clarify a constitutional issue, he/she proposes rejection of the complaint by the Court (pursuant to Art. 144, para. 2, of the Federal Constitutional Law). In all other cases, the Permanent Reporter invites the opposing party – which, in judicial review proceedings, for example, would be the federal government or the provincial government – as well as any co-petitioners involved to submit their comments, requisitions the complete case file for study and, if necessary, takes further steps to clarify the facts of the case.

Subsequently, following a study of case law relevant to the decision and the related legal literature, a draft decision is elaborated. Together with the pleadings prepared by the parties, as well as relevant case law and literature, the draft is communicated to the other members of the Court by electronic means; it provides the basis for their deliberations and the decision to be taken during the next session.

If the Permanent Reporter considers a public hearing to be necessary or appropriate, e.g. if the facts of the case need to be further clarified, if open legal issues are to be discussed with the parties, or if the case is of special interest for the public, he informs the President thereof.

The public hearing

It is up to the President to demand that a public hearing be held. The parties to the proceedings are summoned to the hearing. Moreover, the date of the hearing has to be posted on the official bulletin board and published in the Wiener Zeitung. In many cases, questions to which the Constitutional Court requires answers from the parties are specified in the summons.

The hearing begins with a presentation by the Permanent Reporter, giving an overview of the facts of the case, the legal situation and the positions taken by the parties. After the presentation, the parties are heard. Usually, the judges then put questions to the parties. Once the case has been discussed in sufficient detail, the President closes the hearing and announces whether the decision is to be pronounced orally or will be communicated in writing. As a rule, decisions are not pronounced orally, unless they are of major significance.

Deliberations and decision

The Constitutional Court holds its deliberations behind closed doors. The presentation of the working draft by the Permanent Reporter is followed by a discussion, which may extend over several sessions. Once the case has been sufficiently discussed, a vote is taken on the Permanent Reporter’s proposal. As a matter of principle, a distinction is made between the issue of admissibility and the decision on the substance of the case. In complex cases, votes are taken in a step-by-step procedure.

Based on the result of the deliberations, the decision is laid down in writing, usually by the Permanent Reporter, sometimes by another member of the Court. Using the minutes taken during the deliberations as a basis, the chairperson verifies whether the written version duly reflects the decisions taken and confirms this through his/her signature. The decisions are then dispatched to the parties, either by mail or electronically, by the Court registry.

Essentially, all the decision taken by the Constitutional Court are accessible to members of the legal professions and the interested public via the online legal information system of the federal government (RIS); selected decisions are also available in print in an official collection of decisions published by the Court (“Ausgewählte Entscheidungen des Verfassungsgerichtshofes” – A Selection of Decisions by the Constitutional Court).