1. GENERAL

Last week, we looked at the principles of the rule of law. This week, we will take a closer look at the constitutional provisions on which they are based, and what they mean in practice.

2. CONSTITUTIONAL STATE / STATE GOVERNED BY THE RULE OF LAW

A key feature of the rule of law is that state power is comprehensively bound by the constitution. In a constitutional state, this means that every act of the state must ultimately be traceable back to the constitution. The constitution is therefore the supreme source of law and sets the framework for all state activities.

Furthermore, the rule of law is also structured as a state governed by law: under Article 18(1) and (2) of the Federal Constitutional Law (B-VG), all executive action must be taken exclusively on the basis of laws. This principle of legality is binding not only on the administration but also on the judiciary. State action without a legal basis is therefore impermissible.

The rule of law imposes requirements not only on the executive, but also on the legislative process itself. Laws must be consistent with the constitution and must not contradict it. Furthermore, laws must also comply with the Principle of Specificity (Principle of Determination) comply with: They must be worded so clearly and precisely that it is evident to those responsible for enforcement how the law is to be applied. Whilst it is permissible to grant discretion to those responsible for enforcement, this too must be sufficiently defined in the law. A distinction is made in particular between discretion as to the manner of action and discretion as to choice. Where an authority or a court is granted discretion as to the manner of action, this is usually expressed in the law using the phrase „The authority may …“. For example, section 45(1), last paragraph, of the VStG provides that, in certain cases, the authority „may“ issue a warning – instead of discontinuing proceedings – by means of a notice. A prerequisite is that the significance of the legally protected interest under criminal law is minor. Similarly, the severity of the harm caused by the offence must be minor. The degree of culpability on the part of the accused must also be minor. A warning may only be issued if it appears necessary to deter the accused from committing further criminal acts of a similar nature. The authority may therefore either discontinue the proceedings or issue a warning. Discretionary power exists where the authority is obliged to take action but may choose between several legally permissible measures. It therefore does not decide, whether it takes action, but such as it takes action. In doing so, it is bound by statutory limits (e.g. where there are relevant previous convictions; where the person concerned shows remorse, etc.). An incorrect exercise of discretion, for example in the form of exceeding the scope of discretion or an abuse of discretion, is unlawful and may be challenged through legal remedies. In Austria, therefore, there is no such thing as „unfettered“ discretion; rather, discretion is always „fettered“ insofar as it must be exercised by the executive – in a manner open to review – „in accordance with the law“.

In any event, the scope of discretion is limited where the executive no longer merely takes decisions within the bounds of statutory provisions, but independently creates new law. In such a case, the statutory framework is exceeded and there is an impermissible statutory delegation before.

3. A STATE BASED ON THE RULE OF LAW

Another key component of the rule of law is effective legal protection. State action must be subject to scrutiny and control. This control is exercised in particular by the supreme courts: the Constitutional Court reviews laws, regulations and international treaties, whilst the Administrative Court reviews administrative acts (more precisely: administrative court rulings on acts of administrative authorities). The independence of the judiciary, guaranteed by Article 87 of the Federal Constitutional Law (B-VG), is a fundamental prerequisite for effective legal protection. Discretionary decisions by the administration are also subject to judicial review, particularly with regard to arbitrariness and the exceeding or abuse of discretion.

This individual legal protection is supplemented by objective control mechanisms which come into play independently of any action taken by a person subject to the law, such as parliamentary scrutiny of the government, the Ombudsman’s investigation of grievances, and the Court of Auditors’ scrutiny of public finances. Ultimately, the true quality of the rule of law is demonstrated by how effectively these oversight and legal protection mechanisms function.

4. THE STATE BASED ON FUNDAMENTAL RIGHTS

Ultimately, the rule of law must also be understood as a system based on fundamental rights. It serves to limit state power and to protect individual freedom. Fundamental rights guarantee individuals protected spheres into which the state is, in principle, not permitted to interfere. They prevent the state from exerting totalitarian control over people’s lives and ensure a minimum level of personal freedom. Thus, the focus of the rule of law is not on the state itself, but on the protection of the individual against unjustified interference by state authority.

5. TO PUT IT INTO A NUTSHELL

The rule of law can be summarised in four key functions: (i) Firstly, it ensures that all state power is subject to the constitution and the law, so that no state action may take place without a legal basis. (ii) Furthermore, it shapes the legislative process through requirements placed on legislation, in particular regarding the constitutionality and sufficient clarity of laws. (iii) Another central function is the oversight of state action through an effective system of legal protection, which ensures that laws and enforcement measures are subject to review. (iv) Finally, the rule of law serves to protect fundamental rights and thus to safeguard individual freedom against state interference.

The rule of law depends on effective legal protection – we are familiar with this legal protection and use it on your behalf to address your concerns. Score points with us!