Austria

1. National context

The legal basis for the work of the Austrian penal system is the prison law from 1969 (Strafvollzugsgesetz, StVG). Among general regulations referring to it, the prison order for penitentiaries (Vollzugsordnung für Justizanstalten) also plays an important role.

In accordance with the law, the purpose of a prison sentence should be to “help the convicted criminal to develop attitudes towards life in a way that they are adjusted to community’s needs and should prevent them from following their criminal preponderance. In addition, the execution of the penalty of imprisonment should show the worthlessness of the criminal behaviour” (§ 20 Prison law).

The public authority responsible for the prison system is the Federal Ministry of Justice. Since 2007, managerial functions are assigned to the prison headquarters (Vollzugsdirektion). It supervises all 27 prisons in Austria, as well as the training academy (Strafvollzugsakademie).

Around 4,000 staff members work in correctional institutions, with over 3,000 as prison wardens.

Austrian prison system consists of 27 establishments, among them:

  • 7 penal institutions for sentenced men (Stein, Graz-Karlau, Garsten, Suben, Sonnberg, Hirtenberg, Vienna-Simmering)
  • 1 for adolescents (Gerasdorf)
  • 1 for women (Schwarzau)
  • 3 institutions for psychiatric detention (Maßnahmenvollzug; Göllersdorf, Vienna-Mittersteig, Vienna-Favoriten)
  • 15 for remand and short-term prisoners.

Maßnahmenvollzug is a prison sentence for mentally disordered lawbreakers who have been assessed as having diminished responsibility (§21 al. 1 or §21 al. 2, §23 criminal code).

On the 1st of January 2015, the prison population stood at 8,692 (504 individuals subject to electronic surveillance outside the prisons are included in the official prison population total). Of those, 22% are remand prisoners, 51% are foreign national prisoners, 1% are juveniles and 6% are female prisoners. There has been a considerable increase in the prison population since 2000 (+ 26%), especially due to the increase of prisoners in psychiatric detention.

2. Bodies in charge of the prisoners’ complaints

Apart from the prison director, who is the first instance authority for the enforcement of punitive sanctions, the following authorities and/or institutions play a role in the prison system.[1]

Enforcement Agency

This agency has the responsibility to perform the operations required for the enforcement of custodial sanctions and special measures, including the construction, management, and refurbishment of prisons, staff management, and control of operations. It also has the responsibility to enter into agreements with the individual prisons on their objectives and performance and to monitor the entire penitentiary system.

Federal Ministry of Justice

The primary responsibility of this Ministry is to take strategic decisions and to set strategic targets. Furthermore, the Ministry has various specific competences such as approval of forced treatments and entering into agreements with post-treatment institutions. Personnel management is a general responsibility of the Ministry.

Enforcement Commission

In every federal province an Enforcement Commission has been set up which is responsible for collecting material on the full compliance with requirements, especially concerning the treatment of prison inmates. The Commission consists of seven individuals appointed by the Federal Ministry of Justice, partly on the basis of nominations (by the federal provinces or by the federal ministries). The Commissions must visit prisons without advance notice and report and make proposals to the Federal Ministry of Justice.

Enforcement Panels

Enforcement Panels have been set up with the higher regional courts (tribunals, as defined in Article 6 ECHR) to handle complaints concerning legal issues. Appeals against their decisions can be filed with the Administrative Court.

Enforcement Courts

The first instance court for penal matters is the Enforcement Court for measures involving deprivation of liberty or for specific measures. Enforcement Court has, in particular, the competence to:

  • order a forfeit of money and objects;
  • suspend measures involving deprivation of liberty;
  • uphold security measures;
  • decide on detention in solitary confinement for more than four weeks;
  • postpone the enforcement of a punitive sanction; and
  • release on probation.

Constitutional Court

One of the few decisions of the Constitutional court on prison issues has rejected the prisoner’s complaint. The complaint dealt with the regulations described above about complaints on medical care. The Constitutional court decided that there is no problem that complaints on medical care depend on the administrative jurisdiction and not on the judicial one.[2]

Ombudsman

The Austrian Ombudsman Board (Volksanwaltschaft) is a parliamentary Ombudsman with a remit to control public services and institutions. It was established in 1977 as a pilot project and put on statutory footing in 1981 by the Austrian Fundamental Law. Each citizen can contact them, for free, when there is a conflict with public authorities and all legal remedies are exhausted.

Since 2012, the Volksanwaltschaft is also in charge of the National Preventive Mechanism in Austria. It is also the Secretary General of the “International Ombudsman Institute” since 2009.

The Ombudsman Board consists of three members who are appointed for a term of six years and who cannot be removed during this period. Members can only be appointed for two consecutive terms. The current members have been nominated in July 2013 until June 2019.

As mentioned above, the Ombudsman Board is, since 1st of July 2012, responsible for the preventive oversight of human rights in public and private institutions where there might be any form of deprivation of liberty. It is also in charge of institutions dealing with people with disabilities. Six regional commissions set up by the Ombudsman Board and composed of experts have unrestricted access to all institutions and establishments (N = 4,000) as well as to information and documents. The Ombudsman board and its experts also oversee the exercise of orders and constraint made by the Executive, following and implementing the OPCAT rules.

3. Remedies

Prisoners may file complaints concerning any decision affecting their rights in connection with applications or punitive sanctions, concerning orders relating to them or with regard to any behaviour of prison staff affecting their rights.

The Execution of Prison Sentence Act offers two types of complaints: complaints concerning a legal issue and complaints on supervision issues. A complaint concerning a legal issue will be filed whenever a prisoner is affected by a decision/order, where s/he alleges to have suffered a violation of her/his personal rights and requires a decision on the matter in their complaint. The decisive point is whether the statutory provisions are only mandatory and/or binding upon the enforcing authority, or also a statutory duty on the authorities creates a corresponding right of the prisoner to expect compliance with the law. This must be determined by way of interpreting every individual provision. In case of doubt it must be assumed that the rules of objective law also grant a personal right.

The independent Enforcement Panels, set up with the higher regional courts, decide on complaints on legal issues. The panels are collegiate judge‐like bodies, which meet the criteria of tribunals (as defined in Art. 6 ECHR). Enforcement Panels consist of three people (judges and prison officers). A judge must chair the panel.

Complaints on supervision issues serve to challenge the right of supervision of the penitentiary authorities. They do not trigger a formal procedure, and there is no formal claim to a decision. It is common enforcement practice to inform the prisoner briefly in writing about the outcome of his complaint. Complaints about the type of medical treatment are only possible in the form of complaints on supervision issues, but not as complaints on legal issues. Complaints do not have a suspending effect. However, in theory they may be attributed such an effect. In practice, though, this is not the case. It is inadmissible for several prisoners to file collective complaints. An appeal to the Administrative Court is possible against the decisions of the Enforcement Panels.

The Constitutional Court may also be petitioned in cases of alleged violations of rights that are guaranteed by the Constitution.

3.1. Judicial remedies

The Federal Prison Act foresees in § 119 ff. the possibility to lodge a judicial complaint in case of any measure (or act) violating the prisoner’s rights.

The Prison Law (Strafvollzugsgesetz, StVG) differentiates between two types of complaint. There are complaints because of violation of subjective public rights (§§ 120ff) and complaints with reference to the regulatory law of the prison authorities (§ 122).

3.1.1 Complaint on the basis of § 120 of the Prison Law

The complaint on the basis of § 120 of the Prison Law concerns all decisions, orders and behaviour of prison staff. The complaint is as such only possible under the presumption of violation of subjective public rights. Such rights might be found in each paragraph of the prison law, depending on how the prison law is interpreted, for instance with the formulation “a prisoner shall have the right to…”. Such subjective public rights are for instance under § 43 StVG concerning the free time outside the buildings and the authorisation of sport activities, under § 85 StVG concerning the meeting with a pastor/priest, under § 89 StVG concerning the right to write letters during work time, or under §§ 93f StVG concerning visits.

A complaint is thus possible against: a denied request for prison leave; a decision regarding a disciplinary sanction; the use of force; humiliating speech of prison staff that infringes the principle of prisoners´ treatment (§ 22 StVG).

The short period of 14 days to lodge a complaint to the prison director is considered unsatisfactory by lawyers. There is also a very short period – 3 days – to request a written version of a decision that has been communicated orally.

The General Law on administrative procedure (AVG) foresees a time-limit of six months for a decision to be taken (§ 73 al. 1 AVG). According to § 121 of Prison Law, there is the possibility to lodge a complaint when the court has not taken a decision in due time. Nevertheless, there is no possibility of an urgent procedure.

The procedure of complaint is considered even by professionals as difficult to understand, unclear and problematic to implement.

Moreover, court decisions remain mostly unpublished, so that a development or a change of jurisprudence is complicated.

Formalities

The complaint must provide a reason for the complaint if such is not obvious. One lawyer indicates possible reasons as: „incompetence, wrong case-management, defective consideration of evidence and of circumstances of the case, procedural error, false legal interpretation, inappropriate execution of discretionary power“[3]. As a principle, even if the reason is not obvious, there shall be no doubt on the complainant’s reasons, especially when s/he is not qualified in legal matters or when s/he doesn’t speak good German[4].

Effect and time-limit

There is no postponing effect of the complaint. When the complaint is against a decision, it can be lodged at the earliest one day after the decision was communicated to the complainant and at the latest fourteen days after such a communication.

Decision about a complaint

The prison director decides about the complaint against the behaviour or the order of prison staff (§ 121 al. 1 StVG). In cases of complaints against a decision, an order or the behaviour of the prison director, the decision is taken by a prison court (Vollzugsgericht) located at the Regional Court (§ 121 with § 16 al. 3 StVG).

Decision of prison director and remedies

The decision of the prison director is orally communicated to the complainant, who is also informed of the possibility to lodge further complaints. A written copy of the decision is provided only on request from the complainant (§ 121 al. 4 StVG).

When the prison director has decided on the behaviour or the order of a prison staff member, a further complaint is possible before the prison court (§ 16 al. 3 StVG).

Decision of the prison court located at the High Regional Court (OLG) and remedies

The prison court located at one of the four High regional courts[5] is represented by a “prison council” (Vollzugssenat) – sort of Higher prison court – made up of two professional judges and one lay judge (§ 18 StVG). The lay judges must be prison directors or experienced prison staff, and they are appointed for a term of six years. The decision of the prison council is taken with a simple majority of two votes.

Prison councils are responsible for decisions on complaints against the decision/order of the prison director, against the violation of a subjective right through the behaviour of the prison director, and against the violation of the decision mandate by the prison director.[6]

Decisions of the prison council are autonomous, independent, and must include the reasons and instructions on the right of appeal (§ 121b StVG). A written copy of the decision must be provided to the complainant, his/her lawyer and the prison concerned.

Prison Council of Vienna

The Prison Council of Vienna plays a special role (§ 16a StVG): it decides on complaints from anywhere in Austria against decisions of local prison courts and other prison councils, against decisions of the Ministry of Justice and on complaints against the violation of the decision mandate by the Ministry of Justice. Such a complaint must be lodged within six weeks.

The complaint can be lodged by prisoners and by the Ministry of Justice (§ 121 al. 5 StVG). The admissibility of the complaint is restricted: the complaint if admissible only “when the decision is dependent on the resolution about a legal issue, which represents an important value in terms of legal unity, legal safety and legal development regarding jurisprudence. It is important when the prison court differs from the highest jurisprudence, or when such a jurisprudence is missing or not unified“ (§ 16a al. 3 StVG).

The decisions of the Prison Council of Vienna are the last and final instance for complaint proceedings, and they cannot be challenged before any other national courts.[7]

Contradictory and transparent proceedings

As to the issue whether the complainant should be heard and his effective participation in the proceedings being ensured, § 121 al. 3 of the Prison Law stipulates: „The complainant shall be heard prior to the decision, unless such a hearing doesn’t seem necessary according to the circumstances of the case – especially because the circumstances of the case are already clear enough or because the whole complaint will be accepted”.

The difficulty is the discretionary appreciation of the court of the “circumstances” being already clear or not.

The complainant is also entitled to obtain information about the way in which the supervisory body dealt with the complaint, but this right to obtain information remains unknown in practice.

The applicant can challenge the decision made by the body in charge: in case of a decision concerning a complaint on subjective public rights (§ 120 StVG), there is the possibility of a further complaint before the court. But for the complaint on the exercise of the authority control (§ 122 StVG), there is no remedy for the complainant against the decision.

Compensation

There is a possibility to obtain compensation in two cases: through the criminal law on compensation (violation of private freedom) and through the law of administrative responsibility (claim for damages).

Both proceedings aim at obtaining compensation for pain and suffering.

Legal aid

Legal aid for complaints (Verfahrenhilfe) is not provided. There is no possibility to be assisted by a lawyer paid by the State. Complaints are considered by the § 17 al. 2 of the Prison Law (StVG) as an administrative procedure, so that the General Law on administrative procedure (AVG) is applicable – and there is no legal aid foreseen by the AVG.

There must be a professional lawyer defending remand prisoners. In the case where a remand prisoner does not have a lawyer of choice, the court decides to appoint one.

For sentenced prisoners in matters such as conditional release (§ 16 al. 2 StVG), there is the possibility of a lawyer without costs for the prisoner since the Code of Criminal Procedure (StPO) is competent in this matter (§ 61 al. 2 StPO).

As the Prison Council of Vienna decided, there is no legal aid for prisoners in matters of petty cases – e.g. no legal aid in a complaint procedure against the negative decision of a prison director concerning the execution of the sentence under electronic monitoring.

As to the lawyers’ compensation, the MoJ doesn’t pay them directly, but finances indirectly lawyers’ pensions.

3.1.2 Complaints with reference to the regulatory law of the prison authorities (§ 122 StVG)

A prisoner can lodge complaints with reference to the regulatory law of the prison authorities (§ 122 StVG) for any reason – and not only because of decision, order or behaviour of a prison member staff, also when no subjective public right has been violated.[8]

The complaint by the prison authorities has no time limit and no formalities to comply with.

Prison authorities are the prison director and the prison headquarters in the Ministry of Justice. The decisions of the prison authorities in this matter are not binding, as well as the complaint doesn’t oblige prison authorities to take a decision (§ 122 al. 2 StVG).[9]

3.2 Complaints regarding medical care

Complaints regarding medical care are dealt by the prison authorities, and not the judiciary. As such, prisoners don’t have any right to request a formal solution of their complaint. This concerns: the placement in a medical service; exemption from compulsory work; exceptions to normal food; necessary and professional medical examination and treatment.[10]

4. Procedures regarding disciplinary issues

A complaint is thus possible against: a denied request for prison leave; a decision regarding a disciplinary sanction; the use of force; humiliating speech of prison staff that infringes the principle of prisoners´ treatment (§ 22 StVG).

5. Prisoners’ rights protection and early release / alternative measures’ procedures

As stipulated in Article 46 of the Criminal Code, a prisoner can be conditionally released after spending half of the sentence in detention, with at least three months in detention. This goes down to one month when the prisoner who has committed an offence is under 21 years old. It has to be assessed whether their release will not lead to recidivism (§§ 50-52).

If the crime is serious and release would lead to reoffending, a prisoner cannot be conditionally released until the point of two-thirds of the sentence is served.

For longer sentences (eg. life imprisonment), conditional release must first be assessed at the latest 15 years after the start of the sentence.

6. Concrete state of the protection of prisoners’ rights

As to international compliance, Austria has ratified the following international instruments:

  1. The International Convention for the Protection of All Persons from Enforced Disappearance, on 7 June 2012;
  2. The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, on 4 December 2012;
  3. The Council of Europe Convention on preventing and combating violence against women and domestic violence, on 14 November 2013.

6.1 The ECtHR jurisprudence against Austria

As far as prison litigation issues are concerned, there are no specific, relevant ECtHR judgments against Austria.[11] At the same time, there so far has been no comprehensive analysis of the ECtHR jurisprudence related to Articles 3 and 8 of the Convention.[12]

The UN Committee against Torture (CAT) has expressed some criticism in its last 2015 report, in particular as to “the limited scope of the Austrian Ombudsman Board’s mandate and functions with regard to allegations of abuse by law-enforcement officials. It also expresses concern that the appointment process of the Board members, which is based on the nominations by the three strongest political parties in the Parliament, does not allow for formal public consultation and participation of all civil society components. The State party should take appropriate legal measures to expand and strengthen the mandate of the Austrian Ombudsman Board and ensure that the appointment process of its members is in full line with the Principles relating to the Status of National Institutions (Paris Principles, General Assembly resolution 48/134)”.

6.2 CPT reports

The last CPT visit in Austria took place in 2014 and made some comparison with its former visit in 2009.

If some areas have improved over the 5-year-period (as to juveniles for instance), the CPT regretted that as to “the staffing situation in Austrian prisons […], no progress had been made. Once again, staff shortages – notably of those in charge of the custody of inmates – were

observed in all the prisons visited, which inevitably had a negative impact, inter alia, on prisoners’ access to out-of-cell activities. The situation was further exacerbated by the existing staff shift system: it was still the case that the “night shift” of prison officers usually started at around 3 p.m. (and even at noon on Fridays and weekends), with the result that most prisoners remained locked up in their cells until the following morning. Such a state of affairs is unacceptable” (Paragraph 59).

As to ill-treatment, the CPT’s delegation “received hardly any allegations of physical ill-treatment of prisoners by staff in the prisons visited. Indeed, the majority of the inmates interviewed gave a positive assessment of their treatment by custodial staff, and the delegation observed that relations between staff and prisoners were generally relaxed” (Paragraph 60).

6.3 CAT reports

The UN Committee against Torture (CAT) has adopted several concluding observations at its 1388th meeting, held on 1 December 2015 (CAT/C/SR.1388) – one related to the Ombudsman (see above).

As to legal aid, the Committee took “note of the explanation by the delegation that convicted legally-aided defendants may be required to pay a flat fee as long as it does not affect their basic needs or those of their immediate family. It is, however, concerned that free legal assistance is not provided by law in proceedings before an administrative court, although it values that the Constitutional Court has recently ruled to the contrary in a decision that has yet to be implemented (arts. 2 and 11)”.

Furthermore, Austria “should ensure that all detainees, including those kept in any form of administrative detention, are afforded, by law and in practice, all fundamental legal safeguards from the very outset of their deprivation of liberty, including the right to be assisted by a lawyer without delay”.

As to healthcare in prisons, the Committee was “concerned at reports of inadequate medical and mental health care provided to mentally ill inmates, including a recent highly publicized case of grave neglect of a 74-year-old detainee hospitalized, according to the information provided by the delegation, under a “forensic commitment” regime. It also notes that, despite the request made to the State party’s delegation to provide information on the measures envisaged in response to the recent findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in the area of healthcare in prisons, no concrete information has been received yet on this subject, in particular with regard to medical confidentiality in detention facilities, the practice of involving prison officers in the performance of health-care duties and the need to improve medical screenings on admission (CPT/Inf(2015)34, paras. 77-84) (arts. 11 and 16).

Consequently, Austria should:

  1. Provide adequate medical and mental health care for all persons deprived of their liberty, especially those with mental health conditions;
  2. Ensure that all instances of ill-treatment or neglect are promptly and impartially investigated and, if substantiated, the perpetrators should be prosecuted and punished with appropriate sanctions;
  3. Ensure comprehensive medical screenings on admission and guarantee the privacy and confidentiality of medical information. Prison officers should not be present during medical examinations of persons, save at the request of the medical doctor.”

6.4 Conclusion

There is too little information about prison litigation in Austria in order to conclude on the effectiveness of legal remedies.

However, there is a common opinion on the fact that Austrian prisons in general are neither efficient nor effective,[13] and reports issued from international bodies express many concerns related to prison issues.


[1] From Wolfgang Gratz (2008) “The enforcement of deprivation of liberty in Austria”, Nijmegen: Wolf Legal Publishers.

[2] Verfassungsgerichtshof, 20.09.2010, 291/09_19139

http://gesetzblatt.austria.globe24h.com/0/0/vfgh/2010/09/20/g291-09-strafvollzug-beschwerderecht-vfgh-individualantrag.shtml

[3] Pieber, WK StVG² § 120, Rz 3.

[4] Pieber, WK StVG² § 120, Rz 3.

[5] These are based in Vienna, Graz, Linz and Innsbruck, see Pieber, WK² StVG § 16 Rz 4a.

[6] See also Enengel 2014, Grundrechtsschutz im Strafvollzug, 147.

[7] Pieber, WK² StVG § 16a Rz 1

[8] See Drexler StVG³ § 122, Rz 1.

[9] See Drexler StVG ³ § 122, Rz 1.

[10] VwGH 14.12.2000, 2000/20/0293.

[11] http://www.bundeskanzleramt.at/site/3465/default.aspx

[12] Enengel P. (2013)Exposé für das Dissertationsvorhaben, University of Vienna.

[13] Gratz, Wolfgang: Zur Situation und Einschätzung des Justizvollzugs in Österreich. In: RZ 2006, S. 222.