Austria and Article 6 of the European Convention

L> Austria and Article 6 of the European Convention

Austria and Article 6 of the European Convention

on Human Rights

Theo Öhlinger ^*1

I.

The European Convention on Human Rights (ECHR) has the rank of directly applicable federal constitutional law in Austria and is therefore formally fully equivalent to the original catalogue of fundamental rights in the Austrian Federal Constitution, the Basic Law of the State on the General Rights of Citizens taken from the 1867 monarchical constitution. Today the ECHR has a firm place in Austrian high court jurisprudence - though admittedly only after a lengthy trial period² - principally, though not exclusively, in the jurisprudence of the Constitutional Court (Verfassungsgerichtshof=VfGH) that has primary competence for deciding on infringements of fundamental rights. The VfGH has displayed almost unreserved readiness to follow the European Commission's and European Court of Human Rights' interpretation of the ECHR and, where necessary, to correct its rulings accordingly.³ In fact, several provisions of the ECHR are among the regulations most often cited and applied by the VfGH. One of these is Article 6 of the European Convention on Human Rights.

Article 6 of the ECHR has raised serious problems for Austria, some of them typical for a continental European legal system. Back in 1965 the VfGH was already expressing concern for what it saw as the "almost revolutionary" consequences of the Convention, and sought to limit its impact by issuing restrictive interpretations.⁴ It gradually retreated from this position, especially in the 1980s, under pressure from the Strasbourg case law and criticism from legal scholars.⁵ However, in the sensational Mittner decision of 14 October 1987, the VfGH set a limit to the scope of Article 6 and declared that any broadening of the interpretation would be incompatible with the basic principles of the Austrian Federal Constitution.⁶ Scarcely less momentous was the Apothekerkammer decision handed down on the same day to which the federal constitutional legislature was forced to react.⁷

1 ^* University of Vienna.

2 See F. Ermacora, M. Novak, H. Tretter (eds.), Die Europäische Menschenrechtskonvention in der Rechtsprechung der österreichischen Höchstgerichte (1983).

3 See VfGH Slg 7099/1973, 10701/1985, 10634/1985, 10639/1985 (the citation "VfGH Slg" refers to the official annual publication of the decisions of the Court).

4 See VfGH Slg 5100/1965.

5 See Nowak, `The Implementation of the European Convention on Human Rights in Austria', in N. Mikkelsen (ed.), The Implementation in National Law of the European Convention on Human Rights (1989) 32.

6 See part III infra.

7 See part II infra.

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