Mmagdr Nikolaus SCHWÄRZLER

MMagDr Nikolaus SCHWÄRZLER

Im Haag 4

A-6923 LAUTERACH / Austria

Contribution to the conference „The Relationship between Ombudsmen and Judicial Bodies“ (12./13.11.2001, Ljubljana)

Report on the subject “The Ombudsman and his Position with regard to Legal Proceedings“ in Austria:

The Austrian Federal Constitution Act established the Austrian Federal Ombudsman Office (for the supervision of federal administration) in Vienna and left it to the individual federal provinces to either create their own Ombudsman Office for the administration of their province, or to declare the Ombudsman Office in Vienna to be responsible as a supervisory body for the administration of the provinces. The provinces of Tyrol and Vorarlberg took advantage of the opportunity to establish their own Ombudsman Offices, while the provinces of Burgenland, Carinthia, Lower Austria, Upper Austria, Salzburg, Styria and Vienna declared the (Federal) Ombudsman Office in Vienna to be responsible as a supervisory body for their provinces.

So in Austria there are three Ombudsman Offices:

A Federal Ombudsman Office in Vienna which has also taken on the function of Provincial Ombudsman Office for 7 provinces (under relevant provincial constitution acts), and the Provincial Ombudsman Offices in Tyrol and Vorarlberg.

The Federal Constitution Act set up two possibilities with regard to relations between Ombudsman Offices and a court, namely the Constitutional Court. The Ombudsman Offices in Austria have no relations with other courts (neither with the Administrative Court nor with civil or criminal courts of law). As a rule, one possibility is to appeal to one or two superior administrative authority bodies against decisions made by other administrative authorities, and the other with regard to a decision of the supreme administrative authority (e.g. in the Federation a Minister, in the Provinces the Provincial Government) is to submit the complaint to the (central) Administrative Court in Vienna, or to the Constitutional Court if a violation of constitutionally guaranteed rights (as a rule: principle rights and freedom rights according to the Federal Constitution) is asserted.

In the course of discussions in Casta Papiernicka (Slovak Republic) in May 2001, the question was raised as to whether an Ombudsman can/may act in a court of law against the citizen. I am not aware of any special rulings in this matter. But there is in this regard an unwritten law and to the best of my knowledge a completely and inalienably observed practice in the conduct of Ombudsman Institutes:

No Ombudsman will act against the interests or the declared intentions of a citizen who has consulted him, in other words he will not submit any application to a court of law, neither will he institute legal proceedings nor lodge an appeal.

According to Austrian Law the Ombudsman (Volksanwalt) can appeal to the Constitutional Court in two cases:

He can apply to the Constitutional Court for an examination of the legality of an ordinance (but that does not just mean that he can ask the question whether the ordinance conforms with the law, but also whether the ordinance conforms with the Constitution, i.e. if it violates the law of equality – including the question of objectivity). The Ombudsman applies for the nullification of the entire norm or a certain part of it and shall give reasons for his application.

He can submit an application to the Constitutional Court for a decision regarding a conflict of competence between him and a supreme body (in the Federation: the Federal Government, a Federal Minister, in the Provinces: the Provincial Government).

In both cases the Ombudsman who submits the application has the status of a party in the constitutional court proceedings. The application opponents also have the status of a party, that is the authority that issued the ordinance in question (in the case of 1.) and the supreme authority body that denies the responsibility of the Ombudsman in a certain matter (in the case of 2.).

But in both cases on the side of the Ombudsman who submits the application he alone has the status of a party in the constitutional court proceedings, regardless of whether the Ombudsman has initiated the examination proceedings at the request of a citizen or of his own accord (“ex officio”).

It should be noted that the Ombudsman according to Austrian Law can act (look into an asserted grievance) upon the request of a person affected and that he can also act without a request of an affected person of his own accord (“ex officio”) to look into a grievance supposed by himself. It is clear that in cases where an Ombudsman receives a request to look into a grievance there is an affected person who could receive the status of a party in constitutional court proceedings.

Two examples:

A citizen is sentenced on the basis of an ordinance. The Ombudsman opposes the relevant ordinance at the Constitutional Court as illegal. The sentenced citizen has an interest in winning the case – that is in the elimination of the ordinance in question, but he nevertheless has no status of a party in the constitutional court proceedings. The Ombudsman alone has the status of a party, but not the citizen who has consulted the Ombudsman.

2.In building proceedings a neighbour asserts the illegal issue of a building permit. He maintains that the area for which the building permit was issued is registered in the zoning plan illegally way as building land. The Ombudsman submits an application to the Constitutional Court to rescind the registration of the area as building land for reasons of illegality. The person to whom the building permit was issued has an interest in the further registration of the land as building land, but the neighbour who has consulted the Ombudsman has an interest in the rescindment of the registration as building land. Neither party to the administrative authority building proceedings has the status of a party in the constitutional court proceedings on the legality of land registration! This fact decisively increases the responsibility of the Ombudsman.
The Ombudsman does not have to nominate any particular case for his application for the examination of an ordinance to the Constitutional Court. It is an abstract norm examination in which only he has the status of a party . This ruling has proved effective.
That a decision regarding a conflict of competence in a particular case is required is obvious, for otherwise there would be no conflict over the responsibility of the Ombudsman. But also in this case, people who have an interest in the success or failure of the Ombudsman in constitutional court proceedings have no status of a party – only the Ombudsman has that. Also this ruling has proved effective.

Note:

The English texts of the relevant norms can be found in the homepage of the European Ombudsman Institute – EOI – under the URL address:

consisting of the following:

Art 148 e and Art 148 f of the Federal Constitution Act

Art 58 para. 2 and 3 of the Constitution of the Province of Vorarlberg

Lauterach, 18.9.2001

(N. Schwärzler)