| Austria: the Judiciary within an “Executive State” |
| Fascicolo 2010-4 |
| Scritto da Hammer Stefan |
|
Sommario 1. Constitutional position of the Judiciary. – 1.1. Independence of the Judiciary and of the judges. – 1.2. Dependence from the Executive in the “Administration of Justice”. – 2 Constitutional position of Public Prosecutors. – 3. Models for reinforcing the independence of the Judiciary.Abstract Despite the constitutional safeguards for the independence of judges, the Judiciary as a whole is enshrined in an executive framework conditioned by the Austrian tradition of “Ver- waltungsstaat”. This is true especially for matters of “administration of justice”, such as re- cruitment of judicial personnel, control of the performance of the judicial service, allocation of resources within the Judiciary, and the drawing up of the budget for the Judiciary. Although the Constitution has guaranteed to independent judicial bodies the right to participate in some of these matters, the predominantly executive design of the administration of justice allows for the Minister of justice to exert considerable influence. Up to now, no consensus could be reached on new constitutional safeguards for the structural independence of the Judiciary, such as a Council for the Judiciary. The Constitution as it stands, especially under the pre- dominant reading of its separation of powers principle as a bulwark against a powerful Judici- ary, leaves only little room for change. Under specific conditions, however, the present situa- tion can lead to situations which might not fully comply with the requirements of independ- ence and impartiality of judges as developed by the European Court of Human Rights. |