Venice Commission - Observatory on emergency situations

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Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).

Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN


  Austria

1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?

Only very few provisions of the Federal Constitution of Austria (Bundes-Verfassungsgesetz) deal with the situations of crisis. Most of them do not concern situations where the life of the nation is threatened but where Parliament is not available or functional for some reason.

In particular, Article 18 paragraphs 3-5 regulate a transfer of legislative power if the immediate issue of measures is necessary to prevent obvious and irreparable damage to the community and if the Parliament is not assembled, cannot meet in time, or is impeded from action by circumstances beyond its control (so-called Notverordnungsrecht). Then, the Federal President may, at the recommendation of the Federal Government and on his and the Government’s responsibility, take these measures by way of provisional law-amending regulations. The Government must present its recommendation with the consent of the standing sub-committee to be appointed by the Main Committee of the National Council. Such a regulation requires the countersignature of the Federal Government and must be submitted to the National Council without delay.

Within four weeks of submission, the National Council must either adopt a corresponding Federal Law in place of the regulation or pass a resolution demanding that the regulation be invalidated immediately. The regulations may not contain amendments to the federal constitutional law and, in particular, may not place a permanent financial burden on the Federation, the provinces or municipalities.

At the provincial level, Article 97 paragraphs 3 and 4 sets forth the conditions for provisional law-amending regulations of a Land Government. Furthermore, Article 102 paragraph 5 provides that if in a province the immediate enactment of measures in matters pertaining to the direct federal administration becomes necessary to avert manifest, irreparable harm to the community as a whole in circumstances where the highest authorities of the federal administration are impeded by events beyond their control, the Governor must take the measures on their behalf.

Article 79 paragraph 5 sets forth the conditions under which the Federal Army may intervene on its own initiative for the purposes of the country’s military defence, protecting the constitutionally established institutions, maintaining order and security or assisting in the case of natural catastrophes and disasters (e.g. if circumstances outside their control have put the competent officials beyond capacity to effect intervention by the military and irreparable damage to the community at large would arise from a further wait).

Without reference to possible damage or harm, Article 5 paragraph 2 provides for the transfer of the seat of supreme Federal organs to another location by the Federal President for the duration of exceptional circumstances. Likewise, Article 25 paragraph 2 regulates the convocation of the National Council elsewhere within the federal territory. Finally, Article 51 paragraph 7 determines that the upper limits for the federal budget may be exceeded in case of imminent danger and in case of defence.

During the COVID crisis, no such regulations as referred to in Article 18 paragraph 3 of the Federal Constitution have been issued. Instead, at the beginning of the crisis, a special session of the Parliament was held in order to adopt a „Covid- 19-Act”.

In addition to the provisions in the Federal Constitution, Austria is obliged to respect Article 15 ECHR. Since 1964, the Convention as a whole, and hence also its Article 15, has been an integral part of the Constitution. It is disputed in which national procedure measures derogating rights under the Convention may be adopted.

2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?

Similar to the Federal Constitution, there are no organic/constitutional or ordinary laws which explicitly regulate the state of emergency. Certainly, several provisions in ordinary laws can be pertinent in emergency situations or in order to avoid such situations; some of these provisions contain authorizations for the executive to take certain measures. For instance, Section 19 of the Security Police Act (Sicherheitspolizeigesetz) regulates the competences of security authorities to provide help in cases of imminent danger to life, health, freedom or property of individual persons. Protective regulations and precautionary measures can be found in other laws, as well, e.g. in the Water Rights Act (Wasserrechtsgesetz) and the Trade Regulation (Gewerbeordnung). In the field of construction law, regulations can be enacted (by the provinces) for protection against avalanches, storms, floods and fires. Section 43 of the Road Traffic Act (Straßenverkehrsordnung) permits traffic restrictions or traffic bans in cases of (current or imminent) elementary events, e.g. the exclusion of certain groups from using a street or a part of a street.

3. Do organic or ordinary laws on health risks or other public emergency exist in your country?

The health matters are regulated, in particular, by the Epidemic Acts of 1950 (Epidemiegesetz 1950). This law constitutes the basis for the measures implemented during the current Corona crisis (see Q8 and Q9.). It determines, among others, the conditions for a quarantine of sick individuals (section 7); disinfection of objects and rooms (section 8); blocking of apartments, ban on funeral ceremonies (section 12); measures against the gathering of large crowds of people (section 15); closure of educational facilities (section 18); operating restrictions or closure of commercial operations (section 20) and restrictions on transport to foreign countries (section 25).
In early March 2020, parts of this law have been replaced by new legislation on the Covid-19 pandemic (see below, in particular Q4, Q8, and Q9).

There is also the Law on Epizootic Diseases (Tierseuchengesetz) which authorizes the Federal Chancellor According to order sanitary measures and veterinary measures in order to prevent or combat diseases.

4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?

A state of emergency was not declared in Austria, and the Constitution does not provide for such a declaration (see Q1 about the extraordinary powers of the Government in cases where Parliament cannot meet).

The Government acted on the basis of the pre-existing legislation on epidemic control, namely the Epidemic Diseases Act. Thus, on 11 March 2020 the Minister of Health, by a decree, prohibited assemblies with more than 500 participants, ordered the closures of universities and schools, stopped cross-border traffic, etc.

In order to deal with the Covid-19 pandemic, specific laws have been adopted which provide for authorizations for Federal Ministers to issue regulations and extend the powers of the executive: Covid-19 Law (15 March 2020), including the COVID-19 Measures Act (COVID-19-Maßnahmengesetz), second Covid-19 Law (21 March 2020), including the Law concerning accompanying measures to COVID-19 in administrative proceedings, proceedings before administrative tribunals, before the Supreme Administrative and the Constitutional Court (Verwaltungsrechtliches COVID-19-Begleitgesetz – COVID-19-VwBG).

5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?

Not applicable - a state of emergency was not declared in Austria, and the Constitution does not provide for such a declaration (see Q1 about the extraordinary powers of the Government in cases where Parliament cannot meet), and the Government was acting on the basis of pre-exiting legislation, or legislation amended during the COVID crisis

6. Was the declaration subject and submitted to judicial review? Was it found justiciable?

Not applicable - a state of emergency was not declared in Austria, and the Constitution does not provide for such a declaration (see Q1 about the extraordinary powers of the Government in cases where Parliament cannot meet), and the Government was acting on the basis of pre-exiting legislation, or legislation amended during the COVID crisis

7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?

In contrast to very common limitations to fundamental rights in specific cases, a general derogation to human rights in emergency situations is not possible under national law anymore (prior to its repeal by Article 149 paragraph 2 of the Federal Constitution, Article 20 of the Basic Law on the General Rights of Nationals (Staatsgrundgesetz 1867) has provided for a temporary and local suspension of the rights in Articles 8, 9, 10, 12 and 13 of this law).

No derogation was made under Article 15 ECHR or under any other international instrument either.

A general derogation is neither possible under national nor is it prohibited explicitly. Generally, national law permits limitations to most human rights; however, there are certain “absolute” rights which may not be restricted even in situations of emergency. These include, among others, the prohibition of the death penalty (Article 85 Federal Constitution ), and several rights regulated in the ECHR – which enjoys the status of constitutional law in Austria – such as the prohibition of torture in Article 3, the prohibition of slavery and forced labour in Article 4, the guarantee of nulla poena sine lege in Article 7, the prohibition of expulsion of nationals and of collective expulsion of aliens (Articles 3 and 4 of the 4th Additional Protocol), the right not to be tried or punished twice (Article 4 of the 7th Additional Protocol). Some of these rights are also not subject to derogation according to Article 15 paragraph 2 ECHR.

Limitations to human rights must always be proportionate, pursue a public objective, be suited to achieve this objective and be limited to the extent strictly required. All limitations have to meet the principle of equality and must not be arbitrary. Since there is no general derogation possible under Austrian law, there are no requirements regulated as to the extent of such derogations.

8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?

Several human rights have been limited since 15 March 2020 by means of the Covid-19-Acts and regulations, which authorize measures aimed at limiting, on the one hand, social contact in order to combat the spread of the virus, and, on the other hand, at reducing adverse effects on business enterprises and employees. In the meantime, some of these laws have already ceased to be in force (as provided for in the respective laws).

Many limitations of human rights result from the prohibition on entering public places (applicable in the entire territory of Austria) in Section 1 of the regulation of the Minister of Health according to Section 2 lit 1 of the COVID-19 Measures Act. This prohibition restricts, among others, freedom of movement (also affected by travel restrictions and quarantine in several municipalities), the right to respect for private and family life, the right to personal liberty, the right to freedom of assembly and freedom of expression. Implemented measures also limit the right to freedom of religion (e.g. closure of churches), the right to education, to property (e.g. by means of fines imposed due to breaches of COVID-19-Acts5), to privacy as well as freedom to conduct a business and to engage in work – since many shops had to close. The closure of shops also affected the principle of equality (e.g., for a certain time, only smaller shops with a maximum of 400 sqm were allowed to open). Visits to hospitals, care centres and similar institutions had been prohibited, schools and kindergartens had been closed, sports grounds and playgrounds had been shut. These measures have affected the right to private life, the rights of the child and the right to education. Furthermore, the right to data protection has been affected, among others, because schools communicate with students and their parents via online platforms or mailing lists. See also Q9.

9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?

There was no formal shift of competences towards to Executive.

However, the Executive enjoys additional powers under the legislation on health risks, namely, under the Epidemics Act, which is – together with several COVID-19-Acts – is a part of the legal foundations for ordering and executing measures to combat the spread of COVID-19. Accordingly, the Government issued a number of regulations within this legal framework.

By decree of the Minister of Health, the COVID-19 was included into the scope of application of the Epidemics Act. For this reason, authorities may take precautions as set forth in the Epidemics Act in order to combat the spread of COVID-19.

The Epidemics Act provides for several precautionary measures in this regard, such as quarantine, closure of educational facilities and commercial operations, as well as transport and travel restrictions. The Executive has the competence to implement such measures and to issue regulations which, for instance, prohibit large gatherings of people (section 15) or determine how to implement measures in public transportation (section 26 paragraph 1). These regulations are issued by the Minister of Health (if applicable to the entire territory), by the Governor (if applicable to an entire province or several municipalities) or by the regional administrative authorities (section 43 paragraph 4a). According to Section 28a paragraph 1 of the Epidemics Act, public security organs shall support the competent authorities and organs in the exercise of their functions and in the implementation of the measures. They also have to contribute to the implementation of the Epidemics Act and of any regulations adopted on the basis of this act (Section 28a paragraph 1a).

According to Section 2 of the COVID-19 Measures Act, a regulation may be issued in order to prohibit entering public places. A corresponding regulation was issued. It has provided for several exceptions to the general prohibition of entering public places, namely, to avert immediate danger; to care for vulnerable people; to meet necessary basic needs of daily life; to fulfil work responsibilities and go to an outside public place alone, provided that a distance of one meter from other people is maintained (Section 2). Another regulation was issued by the Minister of Health ordering the closure of shops, fitness centres, restaurants etc but also providing for various exceptions (e.g. for supermarkets, post offices, pharmacies, gas stations; (see Sections 1-3; cf Section 20 of the Epidemics Act)).

One of the regulations adopted temporarily authorizes the Federal Chancellor to issue regulations which contain procedural rules for proceedings before the Constitutional Court.

10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?

Although the Executive may enjoy additional powers in emergency situations, there is no formal derogation from the normal division of powers. Legislation and execution in the matters of public health fall within the competence of the Federation (Article 10 paragraph 1 lit 12 of the Federal Constitution). Implementation of the Epidemics Act and the COVID-19 Measures Act thus takes place in the form of indirect federal administration, which means that the Governor and the provincial authorities subordinate to him/her exercise the executive power of the Federation (Article 102 paragraph 1 of the Federal Constitution).

The COVID-19 Measures Act as well as the regulations issued in accordance with this act and with the Epidemics Act are limited in duration. Some of them have already ceased to be in force, the latest will cease to be in force on 31 December 2020. With regard to circumstance and scope, Sections 1 and 2 of the COVID-19 Measures Act stipulate that the Minister may issue regulations (e.g. in order to restrict freedom of movement in public places) when COVID-19 occurs (”Beim Auftreten von COVID-19”) and insofar as this is necessary in order to prevent the further spread of the virus.

11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?

The sessions of Parliament (National Council) were not suspended. Parliament held sessions with protective measures (face masks, plexiglas shields, distance rules). The prohibition of gathering of large crowds of people did not include, inter alia, meetings of general representative bodies such as National Council, Federal Council, and provincial parliaments.

12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?

Judicial sessions of the Constitutional Court were not suspended. The Court, however, has changed its working methods. Personal contact between applicants and members or employees of the Court have been reduced. Employees were only present for activities that had to be carried out there. Many tasks could and still can be carried out via teleworking. To date, employees may also be present at the Court physically, however, protective measures apply (minimum distance, face masks etc).

A law was passed setting out procedural regulations for administrative authorities, administrative courts, the Supreme Administrative Court and the Constitutional Court. This law, among others, stipulates that oral hearings are to be conducted only if absolutely necessary (Section 3). Furthermore, certain time limits for pending proceedings have been interrupted (Section 1). The Federal Chancellor is authorised to extend or prolong the interruption of time limits (Section 5).

13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?

Neither constitutional provisions nor ordinary laws explicitly regulate emergency situations, albeit the constitution provides for a possibility of the executive to legislate when Parliament cannot meet (see Q1). Hence, no corresponding legislation was amended. There is specific legislation dealing with the pandemic, which gives the exective certain specific powers; this legislation was amended during the COVID-19 crisis (eg. the Epidemics Act).

14. Was this additional legislation subject to judicial review?

The adopted laws and regulations can be subject to judicial review by the Constitutional Court. There are already some applications pending.

15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?

The constitution does not provide for a specuak declaration of the state of emergency; the Government was acting on the basis of the pre-existing legislation on epidemic control, as amended during the crisis.

16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)

Apart from the mechanism provided by Article 15 ECHR, Austrian constitution does not provide for a state of emergency as such. That being said, there are legal remedies which may be applied in respect of the measures taken in application of the “health crisis legislation”. Laws (the pre-existing laws and the recent amendments adopted during the COVID crisis) and regulations can be subject to judicial review. In fact, there are several applications currently pending with the Constitutional Court. Legal remedies against individual measures such as administrative penalties (fines) for violation of COVID-related restrictions include, above all, appeals. An appeal (Einspruch) has to be lodged within two weeks before the authority which has issued the penalty.

Available legal remedies were not restricted or changed in any other way. No emergency measures have been invalidated to date. However, some of those regulations which have been limited in duration have already ceased to be in force (see Q10).

For the case-law of Austrian courts concerning the COVID-related measures, click here.

17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?

No federal elections were affected (because no elections had been scheduled).

18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.

Municipal elections were affected in two provinces.

In Styria, the election was suspended by the Governor and the provincial parliament. Therefore, corresponding electoral legislation was amended: a new provision was introduced into the election regulation (Gemeindewahlordnung), regulating “extraordinary circumstances” (Section 96b of the regulation). With a view to implementing a resolution of the provincial parliament, government parties agreed on a new date. The new election day was 28 June 2020. Because provincial law provides for early voting and postal voting (which had already started in early March with some hundred votes already cast at that time) the election process was formally discontinued in order to be continued in June.

In Vorarlberg, the election was postponed by the Federal Government and the provincial parliament. The provincial government und the municipal association (Gemeindeverband) agreed that it will be held in September 2020. The Constitution of Vorarlberg allows for a postponement of up to nine months (Article 14 paragraph 3).

To date, these decisions have not been submitted to parliamentary control or judicial review.