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Anti-Discrimination Legislation

Anti-Discrimination Legislation State Constitutional Law on the Fundamental Rights of Citizens, 1867

For historical reasons, the Federal Constitution of the Republic of Austria is not formalized as a single document. In addition, there is no single list of fundamental rights, and they are enshrined in various legislative acts. However, this in no way diminishes the scope and effectiveness of the rights enshrined, but rather a question of the methods of application of constitutional law. All guarantees of fundamental rights are part of the Federal Constitutional Law, which uses the legal term "constitutionally guaranteed rights." These rights are directly applicable and binding on the legislative, executive, and judicial branches of government because of their status as constitutional law. It is a generally recognized principle that all legal provisions must be interpreted in the light of these fundamental rights.

The two main sources of fundamental rights are the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and the Common Law of 1867 (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger). Both of these sources provide most of the important guarantees of fundamental rights, such as the right to life, liberty and security, the right to a fair trial, the right to respect for private and family life, property, freedom of speech, freedom of thought, conscience and religion, freedom of assembly, and the prohibition of discrimination.

In addition, since 2012, the Constitutional Court also uses the Charter of Fundamental Rights of the European Union as a benchmark in the application of European Union law. Thus, the rights guaranteed in the Charter may not only be used as constitutional rights when the Constitutional Court examines individual complaints, but they also serve as a benchmark when considering the general compatibility of legislation with constitutional law.

Other normative sources include:

  • provisions set forth in Federal Constitutional law, such as the principles of equality and nondiscrimination, the right to vote and to be elected, various fair trial guarantees, and the prohibition of the death penalty;
  • . constitutional laws, such as the Federal Constitutional Law on the Elimination of All Forms of Racial Discrimination, the Federal Constitutional Law on the Protection of Individual Liberty and the Federal Constitutional Law on the Rights of the Child;
  • constitutional provisions contained in general laws, such as Section 1 of the Personal Data Protection Act and Section 1 of the Political Parties Act.

The Federal Constitution stipulates that Austria adopts a neutral approach to religion; the objectives and goals of the state imply its exclusively secular character. The state's position on religion is based on two constitutional principles: the principle of freedom of religion and the guarantee that religious communities may act as legal entities in public places. In addition, Austria has a long tradition of intercultural and inter-religious dialogue. The Basic Law on the General Rights of Citizens of 1867 (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger) together with the European Convention for the Protection of Human Rights and Fundamental Freedoms provide for freedom of religion and conscience (religion and belief) and in conjunction with the Interfaith Law of 1868 (Gesetz über die interkonfessionellen Verhältnisse der Staatsbürger) guarantee that everyone can freely choose to belong to a church/religious community, renounce religious affiliation or have no religious affiliation. Public worship is guaranteed for all religious communities. In addition, the Basic Law guarantees the independent organization and management of religious communities and prohibits state interference in their internal affairs. The role of the state is limited to regulating external relations.

Churches and legally recognized religious communities have public law status and regulate their internal affairs independently. Two laws passed in 1874 and in 1998, amended in 2013, provide general preconditions and procedures for legal recognition (Anerkennungsgesetz and Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften).

With regard to labor law (in both the private and public sector) and the exchange of services and goods, Austrian law contains strict anti-discrimination provisions that explicitly guarantee that no one can be discriminated against on the basis of gender, age, ethnicity, religion or outlook, sexual orientation, etc. This includes hiring, working conditions, reorganization or dismissal from work. The latter is regulated by separate laws that specifically protect people with disabilities, while all other cases are covered in general anti-discrimination law. Austrian law also penalizes indirect discrimination, which is carried out through rules that appear neutral but effectively discriminate against a particular group.

The Austrian Constitution enshrines the rights of autochthonous minorities in Austria, including rights of representation, funding, language and education. These rights have sometimes led to conflict at the regional political level. Therefore, although the Austrian government has generally respected these rights in the past, some of them continue to be contested. A specific long-standing conflict concerns the linguistic rights of ethnic minorities in Austria under Austria's Federal Constitution, which calls for the respect and promotion of the rights of ethnic groups. The rights of Croatian and Slovenian ethnic groups were originally set forth in the State Treaty of 1955, which recognizes Croatian and Slovenian as official languages in addition to German in Burgenland, Carinthia and Styria, where significant "mixed" populations existed. The state treaty also prohibits acts of discrimination.

At the same time, penalties for racial discrimination were mainly aimed at preventing the revival of National Socialism and preserving peace. Special rights were granted to Croatian, Slovenian, Hungarian, Czech and Slovak ethnic groups and Roma also under the Ethnic Group Act ("Volksgruppengesetz") of 1976, as well as several other laws and regulations. One year later, the Ethnic Advisory Boards were established to assist the federal government in all matters concerning the Croatian, Slovenian, Hungarian, and Czech minorities in Austria. The requirement that the linguistic rights of these official minorities be protected raised fears of further segregation, which may have been contrary to the intentions of the State Treaty. In addition, the 1976 Act required that topographic signs in a minority language be placed in addition to German only if a "substantial part of the population" belonged to that minority, which was interpreted to mean "25 percent of the local population." This part was successfully challenged by the Croatian community of Burgenland in the Constitutional Court in 1987, which sparked a decades-long political battle over changing place names that was only settled in 2011.

The last few years have also seen the advancement of a major anti-discrimination law concerning homosexuality in Austria. Already in 2002, the Constitutional Court decriminalized people who had same-sex sexual relations with persons under 18 years of age (Gleichgeschlechtliche Unzucht mit Personen unter achtzehn Jahren), deciding that this was an "urgent law." It criminalized (only) men over the age of 19 who had consensual relationships with same-sex partners between the ages of 14 and 18 because of sexual immorality. This singled out homosexuals precisely because Austrian law generally recognizes the right to sexual self-determination for a teenager at age 14.

As a result, parliament defined a new criminal offense, generally criminalizing sexual acts with adolescents under the age of 16 if that particular adolescent had not yet matured enough to understand that he was being offered sexual intercourse. In 2002, however, Parliament neglected to establish a law that would have allowed all concerned the right to a final criminal conviction. After the ECtHR determined this situation incompatible with the ECHR, the Austrian parliament allowed convicted people to request that their convictions be expunged as early as December 2015.

Today, marriage and with it certain legal, administrative and economic privileges (including marriage ceremonies, inheritance status and medical decisions) remain a heterosexual privilege in Austria. Homosexual partnerships, although legally recognized, do not have the same range of privileges. In 2019, this will be done away with by a ruling of the Austrian Constitutional Court, similar to how homosexual couples were granted adoption rights similar to those of heterosexual couples as of 2016, following the Constitutional Court ruling.

In general, the Austrian legal system distinguishes between hate crimes in general and hate speech (dissemination) in particular. The former can be criminal offenses or simply aggravating circumstances. However, hate speech may be prohibited and punishable by laws if it concerns incitement to hatred ("Verhetzung") and insults to religious feelings, as well as in connection with the Law for the Prohibition of National Socialism of 1947 ("Verbotsgesetz"). Special protection against incitement to hatred is afforded to groups of a particular church, religious community or other group defined by the criteria of race, color, language, religion or ideology, citizenship, descent or national or ethnic origin, gender, disability, age or sexual preference, etc.

The Act for the Prohibition of National Socialism of 1947 (Verbotsgesetz) provides special protection against hate speech.

The National Socialism Prohibition Act of 1947 (Verbotsgesetz) prohibits any action associated with the NSDAP and its paramilitary groups or their goals, or even in the "spirit" of their goals, to undermine "the self-determination and independence of the Republic of Austria or to disturb public peace and reconstruction of Austria or whoever plays the leading role in such association. It also forbids soliciting, inciting or attempting to induce others through "publications," "documents" or "illustrations" in public or in the presence of several persons to commit prohibited acts related to National Socialism as well as any material that glorifies or praises the goals of the NSDAP, its institutions or actions. It also prohibits denying, grossly minimizing, endorsing or attempting to justify the Holocaust or any other National Socialist crimes against humanity in publications, broadcast media or any other medium publicly and in any other way accessible to a large number of people.

In January 2016, the criminal offence of "incitement to hatred" was changed to be more in line with international standards (especially the International Convention on the Elimination of All Forms of Racial Discrimination, the EU Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law and the Additional Protocol to the Council of Europe Convention on Cybercrime) and more adequately correspond to recent developments. The crime is now defined as the public denial, gross minimization, approval or justification of acts that constitute genocide or crimes against humanity - "publicly," which means in a form accessible to about 30 people or more.

The reform also added qualifying elements of the crime, which increases the maximum fine if there is a large public (150 people or more) or if others have moved to violence against protected groups as a result. It specifically prohibits incitement to violence and hatred, insult or verbal abuse, advocacy or recognition of genocide, and distribution of hate speech material - images, texts and other representations of ideas or theories that advocate or incite hatred or violence against such groups or members solely because of their membership in the group.These elements of the crime are also prohibited.

However, it is a specific crime that requires a potential audience of at least 150 people and a certain level of intellectual or theoretical sophistication, simple xenophobic slogans cannot qualify as a crime. A hate crime, endorsement of genocide or crimes against humanity requires that the act in question be legally recognized as such by an Austrian or international court. The new rules also specify that not only the publication and sharing of such content can be criminal, but that it must be accessible to a wide audience. Simply clicking the "Like" button on Facebook can thus qualify as hate speech because it can be seen as an endorsement of genocide or crimes against humanity that is accessible to a wide audience. Hate speech related to the Holocaust and other crimes against humanity committed by the Nazis is regulated by the National Socialism Prohibition Act.

Hate crime clauses protect not only the above-mentioned groups, but also protect anyone from insults committed for the purpose of insulting human dignity. This includes insults that seek to "dehumanize" the object of the insult, or deprive the group of the right to live as equal citizens or present them as less valuable or worthless members of society or subject them to any other inhuman or degrading treatment.

With the beginning of the coronavirus pandemic in 2020, legislation began to adapt to the changes that were associated with the problem. On the one hand, it was about adapting the timing of lawsuits, and on the other hand, the emphasis was on spreading hate online, as radical activity moved online at this time. The Hass-im-Netz-Bekämpfungs-Gesetz (Hate Crimes on the Internet Act) was published by the HiNBG on December 23, 2020 (BGBl I 148/2020) and entered into force on January 1, 2021. The law includes a variety of measures aimed at countering the spread of hatred online:

  1. Expanding protection against "cyberbullying" (persistent harassment perpetrated through electronic media). The law does not mention specific grounds, but in practice many cases of cyberbullying are based on sexist, racist, homophobic motives, as well as Islamophobia and sexism, for which offline liability is already provided.
  2. Ban on "unauthorized" photos. This refers to the prohibition on publishing images of an intimate nature on the Internet without the consent of the person whose pictures are published (§120a, Penal Code).
  3. Amendments to motives for incitement to hatred. § 283 of the Criminal Code now contains the most important protection against incitement to hatred on the grounds of race, color, language, religion or belief, nationality, origin, national or ethnic origin, sex, disability, age or sexual orientation. The latest amendment extended this protection to individual members of protected groups, whereas previously the entire group had to be targeted by the offender.
  4. Reform of the right of action against defamation, libel and slander in online media. The procedure has become more accessible and quicker, and the obligation to remove the incriminated content can be imposed on the provider if the original distributor of the media cannot be found. (Basically, § 8 of the Media Law). In addition, there is a new right of relief for victims of crime in such cases (§ 66b, Code of Criminal Procedure).
  5. Other measures to facilitate legal (civil) actions against persons who "violate the rights of the individual in such a way that the human dignity of the person who is the object of the attack is impaired." such as facilitating the identification of offenders and the standardization of procedures.

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