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PAGE 16: 3.4.2. Prisons – Types and Numbers
There are altogether 27 prisons:
-- seven prisons for men to enforce court sentences of more than 18 months;
-- one prison for juveniles;
-- one prison for women;
-- three institutions for the enforcement of alternate measures;
-- 15 court prisons at the site of regional courts in charge of criminal cases.
In addition, there are 16 prisons annexes which are partly run as agricultural enterprises.
3.4.3. Imprisonment – Types and Purpose
The Austrian legal system distinguishes three types of imprisonment imposed by criminal courts,
namely pre-trial detention, imprisonment as punishment and preventive measures in connection
with detention.
Pre-trial detention must be imposed if a person is urgently suspected of having committed a
punishableact
and if one of the reasons for detention stipulated by law (risk of absconding, risk of
collusion, and risk of committing and/or perpetrating an offence) prevails. The foregoing is governed
by the 1975 Code of Penal Procedure.
The Penal System Act governs any imprisonment imposed as a punishment by a court. According
to Section 20 of that Act, serving a prison sentence is meant to assist the convicted person to regain
a righteous attitude towards life that is adapted to the needs of living in a community, as well as to
prevent him/her from following criminal inclinations. Moreover, the enforcement of a sentence is to
demonstrate the negative value of the conduct underlying the conviction.
The Penal Code distinguishes two types of punishments: imprisonment and fines. Punishment is a
reaction to a preceding culpable conduct of the person convicted. In addition, the Penal Code provides
for preventive measures in connection with detention. These are determined by the particular
danger posed by the offender. They are also used whenever they serve to obtain better results with
regard to improving the offender and protecting society, or when no punishment can be administered
in the absence of guilt (e.g. for lack of criminal responsibility).
The most important of these measures is to accommodate such persons in institutions for mentally
disturbed offenders. This measure is imposed for an unlimited period. The court must examine,
at least on an annual basis, whether accommodation is still necessary. Preventive measures are
administered
in prisons, specialised departments or in certain public psychiatric hospitals.
3.4.4. Detainees
About 8,900 persons are being detained in Austria‘s prisons. Thereof, about 6,000 serve a prison
sentence, 1,800 are pre-trial detainees, and 900 are persons detained to enforce alternative measures.
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About six per cent of prisoners are women, less than two per cent are juvenile delinquents and
about six per cent are young adults (persons between the ages of 18 and 21 years). Almost 4,000
prisoners, i.e. about 46 per cent, hailing from more than 100 nations, are not of Austrian nationality.
Every detainee capable of work is obliged to work. The work environment is an important area
of technical and social learning. Different workshops and enterprises in about 50 branches are
availablein
Austrian prisons. For their work, detainees earn remuneration, which is to help them to
return to an orderly life after serving their prison term.
3.4.5. Managing the Penal System
Managing the penal system lies within the responsibility of the Federal Ministry of Justice. A support
and advisory department to the Minister of Justice serves as highest authority of the penal system
and is responsible for its strategic management as well as staff and functional supervision.
Since 1 January 2007, a newly established Penal Service Department serves as the prison staff
supervision authority reporting directly to the Minister of Justice and as the highest operational
authority for the Austrian penal system.
3.4.6. Staff Resources of the Penal System
3,600 Federal civil servants work in Austria’s prisons, plus staff provided by the Judicial Service
Agency, in particular for the provision of support services. About 3,100 are members of the prison
guards. The job profile of an officer of the prison guard is that of an allrounder. They do not only
work as guards and in different prison departments, but also in workshops and enterprises. Formal
vocation training is required for being hired. In the socalled support services, there are pastoral
workers, prison physicians, psychiatrists, psychologists, sociologists and teachers (pedagogues). In
addition, there are social workers, nurses and department assistants, as well as other prison staff
with special qualifications.
Regular training activities, especially in facilities belonging to the prison as well as by third-party
providers are provided for the further education of the prison staff.
3.4.7. Budget Resources for the Penal System
In 2013, the total budget for providing penal service and alternative measures, including probationary
services, was about 440 million euros. Revenues for 2013 were budgeted to amount to about
50 million euros, almost 3/4 thereof being accrued from contributions of prisoners towards penal
service costs, and a contribution of the Federal Provinces towards the costs of health service for the
prisoners.
3.4.8. A New Start after Serving a Prison Sentence
The Republic of Austria has entrusted nation-wide probationary services to a private entity, i.e. the
organisation “Neustart” – (A New Start – Probationary Services, Conflict Solution and Social Work).
“Neustart” operates throughout Austria. In addition to providing probationary services, they also offer
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services in connection with the out-of-court settlement of offences, assistance to persons released
from prison, as well as housing facilities. “Neustart” has facilities in all Federal provinces. The initiatives
also comprise advice and help upon release from prison, as well as communication centres,
training for work, finding community service, clearing, crime prevention, drug counselling, family
support, social work in schools, assistance to juveniles and assistance to crime victims.
3.5. The Federal Ministry of Justice
3.5.1. The Federal Minister of Justice – The Supreme Administrative Body
The judicial administration is headed by the Federal Minister of Justice. The Federal Ministry of
Justice reports to the Federal Minister of Justice. The Federal Minister of Justice belongs to the supreme
administrative bodies of the Federal State and is a member of the Federal Government. She
is responsible for the political management, coordination and supreme supervision of the judicial
system (including the penal system), together with all associated service units.
3.5.2. Organisation
The Federal Minister of Justice heads the Federal Ministry of Justice.
At present, the Ministry has a staff of about 230 which work in four administrative departments
(“Directorates”):
-- Directorate General for Central Administration and Co-ordination (co-ordination, revision, public
relations, judicial information technology, management of the judicial system, and budget),
-- Directorate for Civil Law,
-- Directorate for Personnel and Penal Service, and
-- Directorate for Criminal Law.
3.5.3. Tasks
3.5.3.1. Preparing Legislation
An important task of the Federal Ministry of Justice is to prepare legislative acts. This task primarilyincludes
civil and the criminal law. Civil law includes family and inheritance law, contract law,
company
law, copyright law, as well as the provisions on conducting civil proceedings, executions
and insolvencies. The Federal Ministry of Justice also prepares proposals for legislation regarding
criminal and criminal procedural law, the penal system, as well as – partly – media law.
Judicial legislation affects many personal and private affairs of life. It has been a longstanding
traditionto
keep judicial legislation separate from day-to-day politics as much as possible, and to
reach a consensus among all the parties represented in Parliament, irrespective of its political composition.
The broad consensus on arrangements relating to these personal spheres of life ensures
a high level of acceptance among the population.
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3.5.3.2. Ensuring Independence of the Judiciary
Court rulings in civil and criminal law matters are the exclusive responsibility of independent judges
in Austria. Some court business is handled by “Diplomrechtspfleger”, who are court officials with
special training.
Independence of judges is enshrined in the Constitution. It covers independence from instruction,
as well as the practice that a judge may be removed from office or transferred to another position
only upon a judicial ruling. A judge is only bound by the legal system. No entity inside or outside the
judiciary
can issue any instructions to a judge in connection with a decision on a specific subject
matter,
not even the Federal Minister of Justice or the Federal Ministry of Justice. Judges are
appointed by the Federal Minister of Justice on the basis of an objective selection process. The
appointment of senior judges is reserved to the Federal President.
The Federal Ministry of Justice is responsible for maintaining and developing the activities of the
courts and other judicial institutions. This particularly means that staff and organisational resources
for the operation of ordinary courts, public prosecution offices, prisons and probationary services
will be ensured.
3.5.3.3. International Cooperation
An important aspect of the work of the Federal Ministry of Justice is participation in preparing of legal
instruments within the organs of the European Union. The Federal Ministry of Justice makes active
contributions to the development of the European Union so that it will become an area of freedom,
security and justice, of respect for human dignity, freedom, democracy, equality, rule of law and respect
for human rights, including those of persons belonging to minority groups.
The Union set itself this goal in the Treaty of Lisbon, which entered into force on 1 December
2009. In addition, the Federal Ministry of Justice takes part in international criminal and civil law
cooperationschemes
on other levels such as the Council of Europe and the UN. An important goal
of this work is to ensure international legal assistance.
More detailed information on international cooperation can be found in Chapter 8.
3.6. The Federal Cartel Prosecutor
By an amendment to the Cartel Act adopted in 2002, the Federal Cartel Prosecutor was set up
within the responsibility of the Federal Ministry of Justice. He represents public interests in matters
of competitionlaw
before the Cartel Court. His competencies do not only relate to cartel law cases
in the narrower sense of the word, but also to cases of abuse of a market dominating position, or
to merger procedures. The Federal Cartel Prosecutor has an official function – in addition to the
FederalCompetition
Office, which is part of the Federal Ministry for the Economy, Family and Youth:
as a result, the prosecutor also becomes a party in cartel court proceedings that he did not file
himself, for the purpose of protecting public interests.
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3.7. The Supervisory Authority for Collecting Societies
Effective on 1 October 2010, the supervisory authority for collecting society was established as a
separate agency reporting to the Federal Ministry of Justice. It is comprised of three members: one
supervisor, one deputy and one employee to handle office work.
Among the most important tasks of this authority is the granting and delimitation of licences to
collecting
societies, as well as the monitoring of observance of such licences, adopting supervisory
measures in the case of violations against the Collecting Societies Act, and mediating in the case of
disputes among collecting societies, or between collecting societies and their members. A major part
of the work consists in the participation in organisational meetings of collecting societies.
The desire of the Legislator to create transparency is manifested by the collecting societies having
to submit to the supervisory authority among others all changes of their organisational rules, the
contractual conditions for concluding collection agreements with their members, their reciprocal
agreements with their foreign affiliates, their fee schedules and overall agreements, as well as their
annual financial statements, situation and audit reports, and the annual reports on distribution of
their income from the so-called statutory levy on blank tapes. In terms of transparency vis-à-vis
the public, the collecting societies are also obliged to publish comprehensive information on their
websites;
the supervisory authority also monitors observance of such obligations. Against decisions
of the supervisory authority there is the legal remedy of complaint to the Copyright Board.
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4.1. Working for the Judical System
At present, there are about 1,700 professional judges in Austria. In addition, lay persons are assigned
to cases and work on a voluntary basis. They act as lay judges or jury members in criminal
cases, as well as associate judges with special expertise in commercial, as well as labour and
social law cases, where they act together with professional judges. Moreover, there are about 380
public prosecutors. About 4,800 civil servants and contract employees help to maintain the proper
operation
of the courts and the public prosecution offices. About 3,600 staff members (including
some 3,100 prison guards) are on duty in the penal system.
Federal Ministry of Justice (Central Authority):
A-level civil servants, plus judges and public prosecutors (including secondments) 113.00
Other employees (including secondments) 103.15
Supreme Court and Procurator General:
Judges (including judges in the registry of the Supreme Court) 66.00
Public prosecutors 16.00
Other employees 37.00
Judicial authorities in the Federal Provinces:
4 Higher Regional Courts, 4 Senior Public Prosecutors,
20 Regional Courts, 16 Public Prosecutors, wkSta, 134 District Courts
Judges 1,624.00
Public Prosecutors 361.00
Candidate Judges 248.00
Other employees 4,790.58
thereof Rechtspfl eger (1.4.2013) 660.65
Legal Trainees (no service, only training relationship) 733.00
Prisons: Penal Service Directorate, 27 Prisons
Total employees 3,586.53
Probationary service (outsourced)
Civil servants expiring 50.30
Number of personnel (full-time equivalents) as per 1 April 2013; Basis: PM-SAP MIS, numbers statistics,
effective date.
Personalstand
4. The Legal Professions
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4.2. General Remarks
As the term judiciary is primarily understood as meaning implementation of the law by courts, judges
are seen as playing the leading role when legal professions are being considered. Judges perform
the task of determining the law and adjudicating civil and criminal law cases on behalf of the State.
However, the judiciary not only includes (independent) jurisdiction, but also the function of public
prosecutors who are under instruction, the penal service and all other elements that ensure full
operation
of the judicial system, as well as administration. Such judicial services also cover providing
legal certainty and securing legal peace in terms of the rule of law, including extra-judicial
proceedings and services, such as care and custody cases, and offices open to the public.
In order to ensure proper jurisdiction, which on the one hand is fully functional, and on the other hand
adequately safeguards citizens‘ rights, the participation of additional judicial organs is necessary.
Therefore, public prosecutors have the main task to introduce criminal proceedings on behalf of
the State. Following a comprehensive reform of criminal procedure, as from 1 January 2008 public
prosecutors have become responsible also for conducting preliminary criminal proceedings. As a
matter of principle, no criminal proceedings may be initiated in Austria without a public prosecutor
proposing such proceedings (principle of public indictment, principle of public prosecution). Exceptions
are the so-called offences subject to private charges, which are only prosecuted upon request
by the injured party.
“Diplomrechtspfleger” are another group of employees equally important, although not considered
as belonging to the legal professions in the narrower sense of the word. Rather, they are court
employees with special training who have been assigned certain tasks, clearly defined by law,
in first-instance civil law jurisdiction (e.g. default actions, certain execution cases, Land Register,
inheritance
matters, Company Register).
Apart from judicial professions, the activities of lawyers count among the classic legal professions.
It is one of the essential tasks of a lawyer to fully safeguard the interests of the accused in criminalproceedings,
or of parties in civil law cases. Lawyers also represent their clients before other
authorities,
and they also act as general legal advisors. For the benefit of persons not familiar with
the law, as well as for accelerating proceedings, representation by a lawyer before all higher courts
and, generally, also before district courts are statutory requirements, whenever higher amounts in
dispute are involved. Any party involved has the right to be represented by a legal or a defence
counsel, for that matter.
Notaries Public also have limited authority to represent their clients in court. In the framework of
the judiciary system, though, notaries serve a special mission when acting as court commissioners.
In this function they assist in the performance of inheritance proceedings or in public auctions. As
certification
and authentication functions have been delegated to notaries public, the courts are
relieved of actions that actually are not part of jurisdiction in the proper sense. Nevertheless, certifications
may also be carried out before a court.
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The activities of the different legal professions have been developed in such a way that the
professions
complement each other. In each case, the respective competences and duties have
been clearly defined. It is only through such interaction that the judiciary system has become the
instrument envisaged by the law. It follows from this approach that theoretical training is identical for
all legal professions, with the exception of Diplomrechtspfleger and penal service officers. Although
practical training differs for the various legal professions, traineeships make it possible to gain some
insight into the respective other legal professions. Candidate judges, for example, must work for a
lawyer or a notary public or at the Financial Procurator’s Office during their training, and candidate
lawyers or candidate notaries must spend some practical work at court. Candidate lawyers are also
given credit for working for notaries, and vice versa. Judges, public prosecutors and Diplomrechtspfleger
are in a public law employment relationship to the Federal State; lawyers work as members
of a liberal profession. Notaries also belong to the liberal professions, in the sense that they – like
lawyers – bear the economic risk for running their offices. However, there is one major difference,
due to the public law character of a notary’s official work. When acting as a court commissioner, a
notary public is an agent of the court.
In the European Union, the self-employed liberal professions are free to establish themselves
wherever
they wish, and to provide their services in all Member States. However, activities related
to the exercise of public power do not come under the freedom of establishment and service provision.
Judges, public prosecutors, notaries public, as well as Diplomrechtspfleger exercise public
duties, these activities therefore continue to be reserved to Austrian nationals, even after Austria’s
accession to the EEA and the EU. However, under certain circumstances lawyers and notaries, who
are nationals of another Member State of the EEA and are admitted to the bar in their home state,
may exercise their profession in Austria.
4.3. Legal Educati on
It is a common feature of all legal professions (with the exception of Diplomrechtspfleger and penal
service officers) that one must first study law at one of the universities in Austria (law departments
can be found in Vienna, Graz, Linz, Salzburg and Innsbruck). This is followed by a five-month
traineeship at court and then by specific professional training, which differs for the individual legal
professions.
4.4. Studying Law
The school-leaving examination (“Matura”) from a higher secondary school and proof of knowledge
of Latin are requirements for studying law. The curriculum consists of a diploma course and a doctorate
course. For the exercise of any of the legal professions, the diploma course is sufficient. Apart
from a career at university, the doctorate is not a requirement for working in a legal profession.
However, the training periods for future lawyers and notaries are shorter if they have obtained a law
doctorate.
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The academic degree of a “Master of Law” is awarded at the end of the diploma course. Having
completed the diploma course is the requirement for commencing the doctorate course in law. It is
meant to further develop the skills for independent scholarly work in the law field. The academic
degree of a “Doctor of Law”) is awarded at the end of the doctorate course.
4.5. Practical Court Work
Every graduate of a university diploma course is legally entitled to continue his/her preparation for
a career by working as a trainee at court, provided such training is legally required to be appointedor
registered for such profession. In practice, almost all law students perform a traineeship at court
after completing their studies. Admission to a traineeship at court for a period of five months is
obtained
by means of a decree by the president of the higher regional court of appeal. Trainees
are in a training relationship to the State and receive so-called traineeship remuneration as pay for
their work. University graduates can begin practical work at court on every first day of a month, and
they can interrupt their traineeship at any time by written notice. Trainees are expected to familiarise
themselves with court activities as comprehensively as possible. To this end, they are assigned to
various courts. Trainees are assigned to perform conceptual work, but are also employed to draw
up the minutes of court proceedings.
Austrian citizenship is not a requirement for performing a traineeship at court. Persons who have
successfully completed a law course at a foreign university may also be admitted to a traineeship at
court, if their German language skills allow them to follow the progress of such proceedings.
4.6. Judges
At present, there are about 1,800 professional judges in Austria (of which 63 are assigned to the
Administrative Court and 79 to the Asylum Court).
Lay judges on the bench must be distinguished from professional judges. They do not need any
legal training and work on a voluntary basis. They may either be lay judges or jury members in
criminalproceedings,
or associate judges with special expertise in labour and social law cases.
Professional judges have a public law employment relationship with the Federal State. In addition
to the Federal Constitution Act, the Service Act for Judges and Public Prosecutors is the main legal
source for the training and professional status of judges. Professional judges are appointed for an
unlimited period of time, and retire at the end of the year in which they reach the age of 65.
Judges are responsible for adjudicating civil and criminal law cases, and in administrative and constitutional
law matters they act as a check on the administration and as guardians of the Constitution.
According to Articles 87 and 88 of the Federal Constitution Act, judges act as independent agents of
the State in determining the law and in adjudicating cases.
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Such independence finds expression in the freedom of judges from complying with any instructions
(independence regarding subject matter), as well as in the freedom from dismissal or transfer to
another position (personal independence).
Judges are only bound by the law and decide on the basis of their own legal convictions. Nor are
they bound by earlier decisions in similar legal issues by other courts (precedents).
One exemption is administrative matters within the judicial system (measures to maintain the
operation
of the judicial system). In this connection, judges are only independent if they deal with
these matters on panels or in commissions (such as the distribution of court business, proposals for
appointments to court positions). Otherwise, judges are bound to the instructions by their superiors
in such matters. An established distribution of court business ensures the right to a judge under the
legal system guaranteed by the Constitution.
Judges who are found guilty of violating their professional and ethical duties have to face disciplinary
and possibly also criminal law sanctions. Under civil law, judges are only liable to the State. Parties
suffering damages on account of any unlawful and culpable conduct of a judge may only assert their
claims against the State pursuant to the law on official liability.
Persons wishing to become judges must apply for one of the established posts for candidate judges.
Such vacancies are advertised by the president of a higher regional court of appeal. The
Federal Minister of Justice appoints the candidate judge upon proposal by the president of the
respective higher regional court. Having completed one’s university studies, Austrian citizenship,
aptitude regarding subject matter and character, as well as physical fitness, and the required social
skills for the profession of a judge, as well as a five month traineeship at court are prerequisites for
being admitted to the preparatory service for becoming a judge. When deciding on an admission,
the training
judges during the traineeship and the director of the courses for trainees are also heard.
Since 1986, written and oral examinations, and a psychological aptitude test, conducted by an independent
psychologist, are also required.
With appointment as a candidate judge, the future judges are admitted to the preparatory service
for becoming a judge. It generally lasts four years. The traineeship at court is to be included in this
training period. The training period is spent at a district court and a court of first instance, with a
public prosecution office, in a prison, as well as with a lawyer or notary public, or with the Financial
Procurator’s Office, and with a victim protection or public welfare institution. The judge’s examination
comes at the end of the training period. It is a written and an oral examination. After having passed
the examination and completed four years of legal practice, candidates may apply for a vacant established
post for judges. Upon proposal by the competent staff panels, applicants are appointed as
judges for an indefinite period of time. The appointment is reserved to the Federal President, who
has delegated this privilege to the Federal Minister of Justice for most of the judges’ positions.
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4.7. Public Prosecutors
Public prosecution offices are independent judicial authorities separate from the courts safeguarding
the interests of the State in the administration of justice. The judicial function of public prosecutors
is enshrined in the Constitution (Article 90a). The public prosecutor’s most important tasks include
the initiation of criminal proceedings, investigating and acting for the prosecution, and conducting
preliminary proceedings. These tasks are governed by the Public Prosecution Act. In contrast to
judges, public prosecution offices, as judicial bodies, are obliged to follow the instructions given by
their superiors. At first-instance courts their responsibilities are vested in the public prosecutor, at the
court of appeal in the senior public prosecutor and at the Supreme Court in the Procurator General.
The senior public prosecution offices and the Procurator General’s Office each report directly to the
Federal Ministry of Justice. A Procurator General does not have any authority to issue instructions to
senior public prosecutors or public prosecutors. At present, there are about 340 public prosecutors
in Austria.
Only judges or former judges, who continue to meet the requirements for being appointed as professional
judges, and have performed a minimum one-year traineeship as judge at a court or as
prosecutor, may become public prosecutors. Just as the established posts for judges, the established
posts for public prosecutors are also advertised publicly to applicants. The Federal President
appoints public prosecutors upon proposal by a staff panel. However, for most established public
prosecutor posts, he has delegated the right of appointment to the Federal Minister of Justice.
Public prosecutors are in a public law employment relationship to the Federal State and represent
the public interests on behalf of the State in court, as an independent entity in the administration
of justice. In criminal proceedings, public prosecutors present the indictment and are thus formally
a party in the proceedings. However, they are obliged to observe full impartiality against all parties.
Public prosecutors must follow up both aggravating and mitigating circumstances with equal
diligenceand
care. The public prosecutor heads preliminary proceedings and in doing so may ask
the criminal police to collect evidence. Public prosecutors grant and issue orders. Any party to the
proceedings that regards a prosecutor’s order as onerous may turn to the court.
If a public prosecutor is found guilty of violating professional or ethical obligations, he/she is responsible
to a disciplinary commission set up with the Federal Ministry of Justice. The sanctions such a
commission may impose even include termination of employment. In addition, public prosecutors
are also liable in criminal law. In terms of civil law, public prosecutors may only be held responsible
by the State, similarly to judges, and not by the parties involved in a case, who may only bring in an
action against the State for official liability.
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4.8. Lawyers
4.8.1. General Remarks
As distinct from judges or public prosecutors, lawyers work on a self-employed basis. They exercise
their profession under their own economic responsibility and in their own offices or joint offices,
together with one or several colleagues. There is no need for any appointment by an authority;
the only requirement is admission to the register of lawyers. The Regulation for the Lawyers’ Profession
is the most important statutory basis for the exercise of their profession. In addition, there
are numerous guidelines which lawyers must observe.
There is one bar association in every Federal province of Austria. On Federal level, they belong
to the Austrian Federal Bar Association. These associations are public law corporations and autonomous
self-governing bodies which safeguard the interests of the profession against the State. In
Austria there are currently more than 5,800 lawyers.
4.8.2. Scope of Activities
Lawyers are authorised to represent parties on a professional basis in all court and out-of-court
cases, in all public and personal matters before all courts and authorities in Austria. In addition, they
provide services as legal advisors in various legal matters, and draw up contracts or act as asset
managers. With the implementation of electronic communications with the courts, official documents
can be submitted in automated form (for example default actions). Moreover, both Land Register
and Company Register enquiries may be performed from a lawyer’s office (as with notaries).
Lawyers are obliged to safeguard the interests of their clients. They are therefore subject to an
obligation of secrecy, protected by law, and to strict disciplinary rules. When found guilty of violating
their duties, lawyers are liable with all their personal assets. This liability is complemented by
professional
liability insurance, which they must prove to have taken out before being admitted to
the bar. Wheneverlawyers
operate within a limitedliability company, the absence of the partners’
personalliability
is offset by a much higher minimum insurance sum.
Lawyers receive a fee for their services, which is subject to free agreement. However, the Lawyers’
Fees Act stipulates rates for representation at court, which are primarily of importance for cost reimbursement
in civil and criminal cases under private prosecution. Moreover, the Autonomous Fee
Schedule is used as guideline and serves as a basis for such agreement. The fees’ committees of
the bar associations will examine whether invoiced fees are appropriate.
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When working under the legal-aid scheme, lawyers will not receive a fee but are only entitled to be
reimbursed by the State for any necessary cash expense. The State pays an appropriate annual
lump sum for the work done by lawyers on a pro-bono basis to the Bar Association, which is used to
finance retirement pensions for lawyers.
Five years of legal practice are required for the exercise of the lawyer’s profession, of which a minimum
of five months must be spent as a trainee at court, and a minimum of three years must be
spent with an Austrian lawyer as a candidate lawyer. The bar examination may be taken after three
years of practical work experience, if the candidate can prove that he/she participated in the training
activities required by the bar associations.
4.9. Notaries Public
Notaries hold a public office. Appointment as a notary is a sovereign act and is restricted to a specific
office location. However, notaries are not civil servants, as they are not in an employment relationship
to the Federal State. As they bear the economic risk of their office operations, they work on a
self-employed basis. It is only when acting as court commissioners that they are employed as court
agents.
The Federal Minister of Justice sets up notarial offices in specific locations. At present, there are
495 notarial offices in Austria. The notaries of a Federal province (sometimes also of several Federal
provinces), together with the candidate notaries, form a board of notaries public. As with the
bar associations, these are public law corporations. In addition, there is the Austrian Chamber of
Notaries, which includes all Austrian chambers of notaries elected by the boards of notaries public.
They are set up to safeguard the rights and interests of notaries in Austria, as well as to represent
the profession.
The most important statutory basis for the exercise of the profession of notary public is the Notaries
Regulation and the Court Commissioner Act. In addition, there are numerous guidelines which
notariesmust
observe, with disciplinary actions threatening otherwise.
The scope of activity, as defined by law, comprises three types of activities:
-- Executing public deeds, safekeeping of third-party objects and authenticating processes (e.g.
lotteries and raffles, shareholders’ meetings of stock corporations),
-- Drawing up private deeds and representing parties, as well as
-- Performing official acts reserved to notaries public upon instruction by a court in non-litigious
proceedings.
In their function as court commissioners notaries are especially called upon to manage inheritance
cases.
The main task of notaries as independent and impartial agents in the precautionary administration
of justice is to assist individuals in legal transactions. Their involvement in legal transactions helps to
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secure legal certainty and to prevent litigation. Their official nature as authenticators is to ensure that
the principle of public execution of deeds is maintained. At the same time, by assigning the authenticating
responsibility to notaries public, judges are relieved of responsibilities that do not form part
of jurisdiction in the proper sense of the word.
On account of their responsibility to draw up public deeds and as court commissioners notaries are
subject to special supervision. Any notary public is subject to supervision by the Federal Minister of
Justice, the judicial administration and, directly, by the Chambers of Notaries.
In case of disciplinary offences, disciplinary powers are vested in the higher regional courts of appeal
and the Supreme Court as disciplinary tribunals for notaries. In administrative offences, this function
is exercised by the Chambers of Notaries and the Permanent Committee of the Austrian Chamber
of Notaries. Moreover, notaries public may be held liable both under civil and criminal law. Before
taking up their professional activities, notaries must prove to have taken out professional liability
insurance.
Persons wishing to become a notary public must have completed their law studies, have worked as
trainee at court for five months, and subsequently have been employed with a notary public. Their
name must also have been entered into the register of candidate notaries, which is maintained by
the Chambers of Notaries. Candidates may only be entered into such register if they were under the
age of 35, when first registered.
A requirement for admission to the notaries’ examination is attendance at training events, compulsory
for candidate notaries. The notaries’ examination consists of two parts, which are both in writing
and oral. The first part of the examination may be taken after practical work as a candidate notary
for one and a half years, the second part of the examination after another period of practical work
for a minimum of one year. In addition to passing the notaries’ examination, candidates must have
worked in a legal profession for seven years, a minimum of three years thereof as a candidate notary
after having passed the notaries’ examination, before they are entitled to being assigned a notarial
office.
However, meeting all requirements does not provide any automatic entitlement to be appointed a
notary public. It is in the discretion of the Federal Minister of Justice to decide on the basis of appointment
proposals. Vacant or newly established notarial offices must be advertised publicly prior to any
appointment. Notaries may serve in their profession until they have reached the age of 70.
4.10. Diplomrechtspfleger
There are about 670 “Diplomrechtspfleger” (full-time equivalents) in Austria. These higherlevel court
clerks are indispensable pillars of the judiciary. More than three fourth of all decisions taken at
districtcourts
in Austria are already being taken by them.
“Diplomrechtspfleger” are judicial officers with special training and special qualifications, assigned
to handle certain first-instance transactions under civil law, on the basis of the Federal Constitution
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Act and the Rechtspfleger Act, in order to ease the work load of judges. They are bound to the
instructions of the judge responsible for the case according to the distribution of court business,
and who may also reserve the handling of, or take over the legal case himself at any time and at
any stage. “Diplomrechtspfleger” may only issue court orders. The judges themselves may grant
appeals against such orders, but there is also the legal remedy of submitting the case to a judge.
The scope of competences of “Diplomrechtspfleger” covers, inter alia, default actions, confirming
the legal effect and enforceability of rulings by judges in their field of work, decisions on applications
for legal aid in legal maintenance proceedings and performing official acts on the basis of a request
for judicial assistance by a domestic court or a domestic authority.
“Diplomrechtspfleger” have a particularly comprehensive workload in forced-collection proceedings
and in personal bankruptcy cases. In addition, they maintain the land and Company Registers.
Other areas of responsibility are inheritance and custody proceedings (non-litigious matters).
“Diplomrechtspfleger” may be appointed for one or several of such working areas. Each field of work
requires special training and a separate appointment as a “Diplomrechtspfleger” for such specific
field.
Only court officers having passed secondary-school leaving examination (Matura), or the career
examination for civil servants, are admitted to be trained as “Diplomrechtspfleger” They must also
have worked in a court office for two years and passed the court-office and the special service
examination. The training lasts for three years and includes working at court, especially preparing
dispositions in the targeted field of work, participating in a basic and special course in the specific
field of work and passing an examination in such fields. After passing the “Diplomrechtspfleger”
examination, the candidate “Diplomrechtspfleger” is awarded a diploma by the Federal Minister of
Justice.
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4.11. Promoting Women
For the purpose of expanding the participation of women, especially of university graduates, in the
judiciary system, the Federal Equal Treatment Act, adopted in 1993, created a statutory basis for
setting up equal treatment officers and liaison officers throughout the Austrian civil service. This law
is also the legal basis for further structural measures for the purpose of eliminating underrepresentation
of women. The plans for promoting women describe the specific measures to implement equal
treatment and promotion of women.
GRAPHIC
The percentage of female judges and public prosecutors already exceeds 50 per cent.
The percentage of women in leading positions at courts, public prosecution offices and within the
Federal Ministry of Justice has risen continuously over the last few years to more than 35 per cent.
Among future judges such percentage amounts to almost 70 per cent.
Thema: ZZ 2013 BMJ THE AUSTRIAN JUDICAL SYSTEM (Gelesen 8939 mal)