Chapter III. Federal Execution
1. The Federal President
- The Federal President is elected by the Federal people on the basis of equal, direct, personal, free and secret suffrage by men and women having suffrage to the National Council. If there is only one candidate, the election shall take place by way of referendum. Article 26 para 5 to 8 is to be applied accordingly.
- The candidate who polls more than half of all valid votes has been elected. If no such majority results, a second ballot takes place. Votes in this can validly be cast only for one of the two candidates who have polled the most votes in the first ballot.
- Only a person who is eligible to the National Council and has completed the thirty-fifth year of life on the day of the election can be elected Federal President.
- The result of the election of the Federal President shall be officially published by the Federal Chancellor.
- The Federal President holds office for six years. Reelection for the immediately following term of office is admissible once only.
- Before expiry of his term of office the Federal President can be impeached by referendum. The referendum shall be held if the Federal Assembly so demands. The Federal Assembly shall be convoked by the Federal Chancellor for this purpose if the National Council has passed such a motion. The National Council vote requires the presence of at least half the members and a majority of two thirds of the votes cast. By such a National Council vote the Federal President is prevented from the further exercise of his office. Rejection of the impeachment by the referendum holds good as a new election and entails the dissolution of the National Council (Article 29 para 1). In this instance too the Federal President’s total term of office may not exceed twelve years.
- During his tenure of office the Federal President may not belong to any general representative body nor exercise any other occupation.
- The title “Federal President” may not – even with an addition or in the context of another designation -be used by anyone else. It is safeguarded by law.
- On his assumption of office the Federal President renders the following affirmation before the Federal Assembly:”I solemnly promise that I shall faithfully observe the Constitution and all the laws of the Republic and shall fulfill my duty to the best of my knowledge and belief.”
- The addition of a religious asseveration is admissible.
- The institution of legal process against the Federal President is only admissible if the Federal Assembly has agreed.
- The application for the institution of legal process against the Federal President shall be filed by the competent authority with the National Council which votes whether the Federal Assembly shall deal with the matter. If the National Council pronounces in favour of this, the Federal Chancellor must immediately convoke the Federal Assembly.
- All the Federal President’s responsibilities, should he be prevented from their discharge, pass in the first instance to the Federal Chancellor. A sojourn in another member state of the European Union is not deemed to be an impediment. If the impediment lasts longer than twenty days or if pursuant to Article 60 para 6 the Federal President is prevented from the discharge of his office, the President, the Second President, and the Third President of the National Council acting as a committee shall undertake the responsibilities of the Federal President. The same holds good if the position of the Federal President is continuously in abeyance.
- The committee entrusted according to para 1 above with the exercise of the Federal President’s functions decides by majority vote. Chairmanship of the committee devolves on the President of the National Council, likewise its representation in public.
- Is one or are two of the National Council’s Presidents prevented from the discharge of their responsibilities or is their position continuously in abeyance, the committee still constitutes a quorum even without their participation; in the event of a tie, the President senior in rank has the casting vote.
- In case the position of the Federal President is continuously in abeyance, the Federal Government shall immediately arrange the election of the new Federal President; after the ensuing election the committee shall without delay convoke the Federal Assembly for the affirmation of the Federal President.
- The Federal President represents the Republic internationally, receives and accredits envoys, sanctions the appointment of foreign consuls, appoints the consular representatives of the Republic abroad and concludes state treaties. Upon the conclusion of a state treaty not falling under Article 50 or a state treaty pursuant to Article 16 para 1 which neither modifies nor complements existent laws, he can direct that the treaty in question shall be implemented by the issue of ordinances.
- Furthermore there is vested in him – apart from the powers assigned to him in accordance with other provisions of this Constitution – authority:
- to appoint Federal civil servants, including officers as well as other Federal functionaries, and to bestow official titles on them;
- to create and to bestow professional titles;
- in individual cases: to pardon persons sentenced without further resources of appeal, to mitigate and commute sentences pronounced by the courts, as an act of grace to annul sentences and to grant remission from their legal consequences, and moreover to quash criminal proceedings in actions subject to prosecution ex officio;
- on the petition of parents to declare illegitimate children legitimate.
- Special laws provide to what extent powers are additionally vested in the Federal President with respect to the grant of honorary privileges, extraordinary gratifications, allowances and pensions, the right to nominate and confirm persons in appointments and to exercise other powers in personnel matters.
- The Federal President can assign to the competent members of the Federal Government the right vested in him to appoint certain categories of Federal civil servants and empower them to delegate, as regards certain categories of Federal Civil servants, this competence to authorities subordinate to him.
- The Federal President can authorize the Federal Government or the competent members of the Federal Government to conclude certain categories of state treaties which neither fall under Article 16 para 1 nor under Article 50; such an authorization extends also to the power to order that these treaties shall be implemented by the issue of ordinances.
- The Federal President can on the recommendation of a Land Government and with the counter-signature of the Governor authorize the Land Government to conclude treaties in accordance with Article 16 para 1 when they neither modify nor complement existing laws; such an authorization extends also to the power to direct that these treaties shall be implemented by the issue of ordinances.
- Save as otherwise provided by the Constitution, all official acts of the Federal President shall be based on recommendation by the Federal Government or the Federal Minister authorized by it. The law provides to what extent the Federal Government or the competent Federal Minister is herein dependent on recommendations from other quarters.
- Save as otherwise provided by the Constitution, all official acts of the Federal President require for their validity the countersignature of the Federal Chancellor or the competent Federal Minister.
- The office of the Federal President, being sub-ordinate to the Federal President is called to assist him performing his official affairs. Details on the course of business in the president´s office may be regulated by a standing order to be issued by the Federal President.
- Article 67 does not apply to the standing order of the president’s office, for the appointment of employees of the president’s office and the bestowing of official titles in exerting the superior authority.
- Pursuant to Article 142, the Federal President is responsible to the Federal Assembly for the exercise of his functions.
- To assert this responsibility, the Federal Assembly shall on the vote of the National Council or the Federal Council be convoked by the Federal Chancellor.
- The presence of more than half the members of each of the two representative bodies and a majority of two thirds of the votes cast is requisite to a vote whereby a charge, consonant with Article 142, is preferred against the Federal President.
2. The Federal Government
- The Federal Chancellor, the Vice-Chancellor and the other Federal Ministers are entrusted with the highest administrative business of the Federation in so far as this is not assigned to the Federal President. They constitute as a body the Federal Government under the chairmanship of the Federal Chancellor.
- The Vice-Chancellor is entitled to deputize for the Federal Chancellor in his entire sphere of competence. Should the Federal Chancellor and the Vice-Chancellor simultaneously be prevented from the discharge of their responsibilities , the most senior – in the case of equal seniority, the eldest – member of the Federal Government who is not prevented from the discharge of his duties shall deputize for the Federal Chancellor.
- The Federal Government has a quorum when more than half of its members are present.
- The Federal Chancellor and, on his recommendation, the other members of the Federal Government are appointed by the Federal President. No recommendation is requisite to the dismissal of the Federal Chancellor or the whole Federal Government; the dismissal of individual members of the Federal Government ensues on the recommendation of the Federal Chancellor. The appointment of the Federal Chancellor or the whole Federal Government is countersigned by the newly appointed Federal Chancellor; dismissal requires no countersignature.
- Only persons eligible for the National Council can be appointed Federal Chancellor, Vice-Chancellor, or Federal Minister; members of the Federal Government need not belong to the National Council.
- Should a new Federal Government be appointed by the Federal President at a time when the National Council is not in session, he must convoke the National Council for an extraordinary session (Article 28 para 2), and that to meet within one week, for the purpose of introducing the new Federal Government.
Should the Federal Government have left office, the Federal President shall entrust members of the outgoing Government with continuation of the administration and one of them with the chairmanship of the provisional Federal Government. A State Secretary attached to an outgoing Federal Minister or a senior civil servant in the Federal Ministry concerned can likewise be entrusted with continuation of the administration. This provision applies analogously if individual members of the Federal Government have left office. Whoever is entrusted with continuation of the administration bears the same responsibility as a Federal Minister (Article 76).
- Before their assumption of office the members of the Federal Government render an affirmation to the Federal President. The addition of a religious asseveration is admissible.
- The instruments of appointment for the Federal Chancellor, the Vice-Chancellor, and the other Federal Ministers are executed by the Federal President on the day of the affirmation and are countersigned by the newly appointed Federal Chancellor.
- These provisions shall apply analogously to the cases mentioned in Article 71 above.
- Should a Federal Minister be temporarily prevented from discharging his responsibilities, he instructs, in consent with another Federal Minister, the very, a state secretary attached to him or a senior civil servant of the respective Federal Ministry to deputize for him. Such instruction to deputize is to be notified to the Federal President and the Federal Chancellor. A sojourn in another member state of the European Union is not deemed to be an impediment. If a Federal Minister is not in the situation to deputize in the sense of the first phrase, the Federal Chancellor, in consent with the deputy chancellor, instructs another Federal Minister, a state secretary attached to the prevented Federal Minister or a senior civil servant of the respective Federal Ministry to deputize. Such instruction to deputize is to be notified to the Federal President. The deputy carries the same responsibility as a Federal Minister (Art76).
- The Federal Minister competent for a matter can assign to another Federal Minister or a State Secretary the power to participate in the sessions of the Council and within this framework to conduct the negotiations respecting a particular project and to vote thereon.
- A member of the Federal Government who is staying in another Member State of the European Union may let his business in the National Council or Federal Council be taken care of by a State Secretary attached to him or another Federal Minister. A member of the Federal Government, who is not deputized for, may assign his right to vote in the Federal Government to another Federal Minister; this does not affect his accountability. The voting right may only be assigned to a member of the Federal Government who has not already been entrusted with deputizing for another member of the Federal Government and whom a voting right has not already been assigned to.
- If the National Council passes an explicit vote of no confidence in the Federal Government or individual members thereof, the Federal Government or the Federal Minister concerned shall be removed from office.
- The presence of half the members of the National Council is requisite to a vote of no confidence in the National Council. Voting shall however be adjourned until the next working day but one if the number of members stipulated by the Federal law on the National Council’s Standing Orders so demands. A fresh adjournment of the voting can ensue only from a decision by the National Council.
- Notwithstanding the power otherwise vested in the Federal President in accordance with Article 70 para 1, the Federal Government or its individual members shall in the legally specified contingencies or at their own wish be removed from office.
The members of the Federal Government as well as the State secretaries are entitled to participate in all deliberations by the National Council, the Federal Council, and the Federal Assembly as well as the committees (subcommittees) of these representative bodies, but only at special invitation in the deliberations by the Standing Sub-Committee of the National Council’s Main Committee and by the National Council’s Committees of Inquiry. On each occasion they must, in accordance with the detailed provisions of the Federal law on the National Council’s Standing Orders and of the Federal Council’s Standing Orders, at their request be given a hearing. The National Council, the Federal Council, and the Federal Assembly as well as their committees (subcommittees) can require attendance by members of the Federal Government and request them to initiate investigations.
- Pursuant to Article 142, the members of the Federal Government (Arts. 69 and 71) are responsible to the National Council.
- The presence of more than half the members is requisite to a motion which prefers a charge pursuant to Article 142.
- The Federal Ministries and the authorities subordinate to them shall perform the business of the Federal administration.
- The number of the Federal Ministries, their competence, and their internal organization will be prescribed by Federal law.
- The Federal Chancellor is entrusted with the direction of the Federal Chancellery and a Federal Minister is entrusted with the direction of each of the other Federal Ministries. The Federal President can assign to special Federal Ministers the direction of particular matters which fall within the Federal Chancellery’s competence, including the personnel establishment and organization of such business, notwithstanding that these matters continue to appertain to the Federal Chancellery; such Federal Ministers have in respect of the matters in question the status of a competent Federal Minister.
- The Federal Chancellor and other Federal Ministers can exceptionally be entrusted with the direction of a second Federal Ministry.
- In special cases Federal Ministers can be appointed without at the same time being put in charge of a Federal Ministry.
- State Secretaries, who are appointed and leave office in the same way as Federal Ministers, can be attached to Federal Ministers for assistance in the conduct of business and to deputize for them in Parliament. The Federal Chancellor may let his business in the National Council and in the Federal Council in accord with the vice chancellor being entrusted to head a Federal Ministry be taken care of by a state secretary attached to him. The vice chancellor, being entrusted to head a Federal Ministry may let his business in the National Council and in the Federal Council be taken care of by a state secretary attached to him, in consent with the Federal Chancellor.
- The Federal Minister can with his consent likewise entrust the State Secretary with the conduct of certain functions. In the fulfilment of these the State Secretary is also subordinate to the Federal Minister and bound by his instructions.
3. The Federal Security Authorities
- The supreme security authority is the Federal Minister of the Interior. Subordinate to him are the police directorates of the Laender followed by the district administrative authorities in their capacity as security authorities.
- If the life, health, freedom or property of individuals are actually in danger or such danger is directly impending, security officials are, irrespective of the competence of another authority for repulse of the hazard, competent to render primary assistance till the intervention of the respective competent authority.
- Federal laws provide to what extent municipalities authorities must take action as security authorities.
- Every Land has a police directorate. Its head is the Land police director. In Vienna the Land police director of the police directorate of the Land bears the title „President of the police of the Land“.
- The Federal Minister of the Interior appoints the police director of the Land in agreement with the Governor.
- The Federal Minister of the Interior must inform the Governor of every nationally important instruction or such as is crucial for the maintenance of peace, order and security throughout the Land which he issues to a director of the police of the Land.
Federal Law provides to which extent the police directorate of a Land simultaneously is security authority in first instance for the area of a municipality.
- Constabularies are armed or uniformed or otherwise militarily patterned units invested with tasks of a police character. In particular not to be counted among the constabularies are guard personnel established for the protection of certain branches of soil cultivation, such as agriculture and forestry (field, crops, and forest protection), for mining, hunting, fishing or other licensed water usages, market supervision officials, and fire brigades.
- In the area of a municipality, where the police directorate of the Land simultaneously is security authority in first instance no other regional authority may set up a constabulary.
4. The Federal Army
- The country’s military defense is the duty of the Federal Army. It shall be conducted on the principles of a militia system.
- The Federal Army, in so far as the lawful civil power claims its cooperation, has furthermore
- also beyond above the sphere of the country’s military defense
- to protect the constitutionally established institutions as well as their capacity to operate and the population’s democratic freedoms,
- to maintain order and security inside the country in general;
- to render assistance in the case of natural catastrophes and disasters of exceptional magnitude.
- also beyond above the sphere of the country’s military defense
- Additional tasks of the Federal Army will be prescribed by Federal constitutional law.
- The Defense Law regulates which officials and authorities can lay direct claim to the co-operation of the Federal Army for the purposes mentioned in para 2 above.
- Intervention by the military on its own initiative for the purposes mentioned in para 2 above is admissible only if circumstances outside their control have put it beyond capacity of the competent officials to effect intervention by the military and irreparable damage the community at large would arise from a further wait or if it concerns the repulse of an actual attack, or the elimination of active resistance directed against a section of the Federal Army.
- Commander-in-Chief of the Federal Army is the Federal President.
- Save in so far as the Defense Law reserves disposal over the Federal Army to the Federal President, disposal over it lies with the competent Federal Minister within the limits of the authorization conferred on him by the Federal Government.
- Supreme command over the Federal Army is exercised by the competent Federal Minister (Article 76 para 1).
Federal law prescribes to what extent the Laender participate in the recruitment, provisioning and accommodation for the Army and the supply of its other requirements.
5. The Federal School Authorities
- The administration of the Federation in the field of schooling and in the field of education in matters pertaining to student hostels shall be undertaken by the competent Federal Minister and -in so far as neither the university and higher education system, nor the agricultural and forestry school system nor the forestry and agricultural educational system in matters pertaining to student hostels and centralized educational agencies are concerned – by the school authorities of the Federation subordinate to the competent Federal Minister. The municipalities can, as part of the Federation’s assigned sphere of competence, be called upon to maintain registers of those who are of school-attendance age.
- A school authority shall be established in each Land and be known as the Land school board. In Vienna the Land school board is known as the Vienna City School Board. The applicable sphere of competence for members of the Land school boards shall be prescribed by Federal law.
- The following guiding principles shall hold good for the establishment, to be prescribed by law, of the Federal school authorities:
- Committees shall be appointed within the framework of the Federal school authorities structure. Committee members of the Land school boards, with voting rights, shall be appointed in proportion to party strength in the Diet. The appointment of all or some of the committee members by the Diet is admissible.
- The president of the Land school board is the Governor, Should the appointment of an executive Land school board president be foreseen by law, he shall deputize for the president in all business which the president does not reserve to himself. Should the appointment of a vice-president be foreseen by law, he is entitled to inspect documents and to proffer advice; such a vice-president shall in any case be appointed for those five Laender which, in accordance with the result of the last census taken prior to this Federal constitutional law coming into force, have the largest number of inhabitants.
- The terms of reference for the committees and the presidents of the Land school boards shall be regulated by law. The committees shall be competent to issue rules and general instructions, to appoint officials and to render proposals for nominations as well as to render opinions on drafts of laws and ordinances.
- In cases of urgency which do not admit of postponement until the committee’s next meeting, the president shall take action in the sphere of competence allocated to the committee as pertaining to its business and without delay inform the committee of this.
- Should for more than two months a committee lack a quorum the tasks of the committee for the further period of its numerical incapacity devolve upon the president. In these cases the president replaces the committee.
- Instructions (Article 20 para 1) cannot be given on matters which fall into the committees sphere of competence. This does not hold good for instructions which forbid the implementation of a committee resolution as being contrary to law or which direct the repeal of an ordinance issued by the committee. The reasons for such instructions shall be stated.
- The competent Federal Minister can satisfy himself in person or through officials of the Federal Ministry in his charge about the condition and performance of those schools and student hostels which are subordinate to the Federal Ministry by way of the Land school board. Established shortcomings – in so far as they do not concern such in the sense of Article 14 para 8 – shall be notified to the Land school board for the purpose of their redress.
- The Land school board shall render three ranked sets of proposals:
- for the filling of Federal vacancies for headmasters/headmistresses as well as other teachers and educational assistants at schools and student hostels subordinate to the Land school boards;
- for the filling of Federal vacancies for the school supervisory officials serving with the Land school boards as well as for the appointment of teachers with school supervisory functions.
- The proposals in accordance with para 1 above shall be rendered, pursuant to Article 66 para 1 or Article 67 para 1 or by reason of other provisions, to the competent Federal Minister. The selection of individuals from among those proposed is incumbent on the Federal Minister.
- Every Land school board shall establish eligibility and disciplinary school boards for headmasters/headmistresses and other teachers as well as educational assistants who are employees under public law of the Federation and are employed at a school (student hostel) subordinate to the Land school board. The details shall be prescribed by Federal law.
- The public universities are places of free scientific research, tuition and revelation of the arts. The act in the frame of the laws autonomously and may render statutes. The members of university collegial bodies are dispensed from instructions.
- Federal law may provide that the activity at the university as well as the participation in bodies of the university and the representation of the students by persons not having the Austrian nationality is admissible.
- (Note: Repealed by F.L.G. I No. 51/2012)
B. Jurisdiction of the Courts of Justice
- The Federation is the source of the jurisdiction of the Courts of Justice.
- Judgments and decisions are pronounced and drawn up in the name of the Republic.
- The organization and competence of the Courts of Justice is laid down by Federal law.
- No one may be deprived of his lawful judge.
- (Note: Repealed by F.L.G. No. 73/1968)
Military jurisdiction – except in time of war – is repealed.
Capital punishment is abolished.
- Save as provided otherwise by this law, judges are appointed pursuant to the proposal of the Federal Government by the Federal President or, by reason of his authorization, by the competent Federal Minister; the Federal Government or the Federal Minister shall obtain proposals for appointment from the chambers competent according to Federal Law.
- If a sufficient number of candidates is available, the proposal for appointment to be submitted to the competent Federal Minister and to be forwarded by him to the Federal Government shall comprise at least three names, but if there is more than one vacancy to be filled at least twice as many names as there are judges to be appointed.
- Judges are independent in the exercise of their judicial office.
- A judge is in the exercise of his judicial office during the performance of any judicial function properly his by law and the allocation of business, though to the exclusion of the judiciary’s administrative business which in accordance with the provisions of the law shall not be discharged by chambers or commissions.
- Business shall be allocated in advance among the judges of the Court of justice for the period provided by Federal law on the organization of the courts. A matter devolving upon a judge in accordance with this allocation may be removed from his jurisdiction only by decree of the chamber competent, in case of his being prevented from the discharge of his responsibilities or his being unable to cope with his duties, due to their extent, within a reasonable time.
- The performance of certain kinds of business, which shall be exactly specified and fall within the jurisdiction of a court of First instance, can by Federal law be assigned to specially trained personnel of the Federation who are not judges.
- The judge competent in accordance with the allocation of business can however at any time reserve to himself or take over the discharge of such business.
- The personnel of the Federation which is not a judge is bound in the performance of business specified in para 1 above only by instructions from the judge competent in accordance with the allocation of business. Article 20 para 1 third sentence shall apply.
- A Federal law will determine an age limit upon whose attainment judges will permanently retire.
- Otherwise judges may be removed from office or transferred against their will or superannuated only in the cases and ways prescribed by law and by reason of a formal judicial decision. These provisions do not however apply to transfers and retirements which become necessary through a change in the organization of the courts. In such a case the law will lay down within what period judges can without the formalities otherwise prescribed be transferred and superannuated.
- The temporary suspension of judges from office may take place only by decree of the head of a district court or president of a court or the superior judicial authority together with simultaneous reference of the matter to the competent court of justice.
Federal Law may provide for posts of substitute judges assigned to a superior court of justice. The number of such posts may not exceed three per cent of the number of judge posts assigned to the subordinate courts of justice. The employment of the substitute judges in charge at subordinate courts of justice and eventually at the superior court itself shall be determined by the competent chamber of the superior court, defined by Federal Law. Substitute judges may be entrusted only with the substitution of judges of subordinated courts or judges of the higher ordinary court and only if these judges are prevented from the discharge of their responsibilities or are unable to cope with their duties, due to the extent of these, within a reasonable time.
- Save as otherwise provided by the following paragraphs , the courts of justice are not entitled to examine the validity of duly published ordinances, proclamations on the republication of a law (state treaty), laws and state treaties.
- In cases where a general court has doubts concerning the use of an ordinance based on illegality, an announcement about the republication of a law (state treaty) because of illegality, a law based on unconstitutionality or a state treaty because of illegality, it must file a petition for the repeal of this legal provision at the Constitutional Court.
- If the legal regulation to be applied by the court of justice has already ceased to be in force, the court’s of justice application to the Constitutional Court must request a decision that the legal regulation was contrary to law, unconstitutional or illegal.
- Federal law shall determine what effects an application pursuant to para 2, or para 3 above has on the proceedings pending at the court of justice.
- Hearings in civil and criminal cases at the court of justice are oral and public. Exceptions are regulated by law.
- In criminal proceedings the procedure is by indictment.
Public prosecutors are functionaries of the jurisdiction. They represent the investigation and prosecution in cases for acts carrying a penalty by court. Federal Law determines the detailed regulations on their being bound to instructions of their superior functionaries.
- The people shall participate in the jurisdiction.
- A jury returns a verdict upon the guilt of the accused in crimes entailing severe penalties, to be specified by law, and in all cases of political felonies and misdemeanours.
- In criminal proceedings for other punishable offences lay assessors take part in the administration of justice if the penalty to be imposed exceeds a limit to be determined by law.
- The Supreme Court is the court of final instance in civil and criminal suits.
- Members of the Federal Government, a Land government, a general representative body or the European parliament cannot be members of the Supreme Court. For members of a general representative body or the European parliament elected for a fixed term of legislation or office such incompatibility continues until the expiry of that term of legislation or office even though they prematurely renounce their seat. Anyone who during the preceding five years has exercised one of the aforesaid functions cannot be appointed President or Vice-President of the Supreme Court.
General amnesties for acts punishable by the courts are extended by Federal law.
- Judicial and administrative powers shall be separate at all levels of proceedings.
- Federal or Laender Law may provide in specific matters an appeal from the administrative authority to a court of justice instead of an appeal to the administrative court. In the matters of execution of the Federation not directly handled by federal authorities, as well as in the matters of Article 11, 12, 14 para 2 and 3 and 14a para 3 and 4 Federal Laws may, in accordance with the first phrase, only be published upon approval by the Laender. To Laender laws according to the first phrase Article 97 para 2 of the Federal Constitution Law applies accordingly.