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Summary: General overview of Austria's national legal provisions on children's rights, including guidance on how to conduct further research.
National laws on children's rights Status of the CRC in national law Constitution: the Austrian Constitution contains a number of rights provisions that apply regardless of age, though there are a small number of provisions that make specific reference to children: The European Convention on Human Rights also has the status of a Constitutional law in Austria, though with the exception of the protocol 7, article 5 provisions on marriage, the Convention does not directly address the rights of children. Legislation: There is no consolidated or comprehensive Children's Act or Code in Austrian Law, though there are a number of thematic pieces of legislation that are of particular importance with regards to children's rights. Relevant legislation includes, but is by no means limited to: Legal Research Case Law Case Law Research Compliance with the CRC In depth analysis A number of aspects of the juvenile justice system were also a source of concern for the Committee, including with regards to the legality of pre-trial detention for children for up to a year, the overcrowding in detention facilities and the lack of physical and mental health services for children in detention. The Committee urged the State to address these concerns by ensuring that detention, including pre-trial detention, is only used as a measure of last resort for the shortest possible period; that facilities are not used beyond capacity; and that medical and psychological services are freely available. In a related area, the Committee expressed concern that child victims of prostitution can and have been treated as offenders rather than victims, including through the imposition of administrative fines. The Committee urged the State to ensure that children are treated as victims in this setting and that they are never subject to deprivation of liberty or other sanctions for being victims of prostitution. Current legal reform projects
Article 9(1) of the Austrian Constitution provides that recognised rules of international law, including the Convention on the Rights of the Child, are regarded as integral parts of federal law. The Convention is not directly applicable, however, rather courts must interpret national legislation as far as possible in a manner compatible with the CRC. If the Convention explicitly contradicted domestic legislation, the courts would apply the national provision.
The website of the Austrian Parliament publishes details of legislation currently before the Parliament in German (http://www.parlament.gv.at/index.shtml) and limited information in English (http://www.parlament.gv.at/ENGL/). The Austrian Constitution is available in English, French and German through the website of the Constitutional Court (Verfassungsgerichtshof Ősterreich) (http://www.vfgh.gv.at/cms/vfgh-site/english/index.html). The Legal Information System website (Reichsinformationssystem) maintains a database of Austrian law in English (http://www.ris.bka.gv.at/Englische-Rv/) and German (http://www.ris.bka.gv.at/default.aspx). In addition, the GlobaLex project at New York University has published a guide to legal research in Austria (http://www.nyulawglobal.org/Globalex/Austria1.htm) and the World Legal Information Institute (http://www.worldlii.org/at/) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/austria.php) provide access to a selection of legal and governmental resources.
CRC Jurisprudence
The Convention on the Rights of the Child has been cited in a number of Austrian cases, including in relation to the right of children to maintain relationships with their parents (http://www.crin.org/Law/instrument.asp?InstID=1604) and in relation to closed adoptions and the right to identity (http://www.crin.org/Law/instrument.asp?InstID=1597).
The Legal Information System (Reichsinformationssystem) website maintains a database of Austrian case law in German (http://www.ris.bka.gv.at/Judikatur/). The Constitutional Court (Verfassungsgerichtshof Ősterreich) also publishes its case law, primarily in German, though limited resources are available in English (http://www.vfgh.gv.at/cms/vfgh-site/entscheid.html).
In its Concluding Observations of October 2012, the Committee on the Rights of the Child welcomed the adoption of the Federal Constitution Law on the Rights of the Child, but noted with concern that the Law does not include all of the rights protected under the Convention on the Rights of the Child. Social and cultural rights were generally absent from the legislation. The Committee also expressed concern that despite efforts to harmonise youth protection laws across the Länder, most continue to have divergent standards with regards to age limits and definitions of terms such as “children” and “adolescents”. The Committee urged the State to adopt a comprehensive legal framework to incorporate all provisions of the Convention across the Länder.
The Committee also raised more specific concerns about the implementation of the Convention in its 2012 Observations. Of particular concern was the inadequacies of legislation on the sale, trafficking and abduction of children, as well as their sexual exploitation. The Committee noted that national legislation did not prohibit all offences under the Optional Protocol on the sale of children, child prostitution and child pornography, and in particular did not prohibit cartoon representations of child abuse and pornography involving children between the ages of 14 and 18 when the victims have given consent to its private use. The corresponding recommendations called on the State to address these inadequacies, including through amending the relevant legislation to prohibit all child pornography.
Please contact CRIN if you are aware of any current legal reform projects.