This analysis was written by Nino Tsereteli, Research Officer at DRI, with consultation by Kevin Fredy Hinterberger, re:constitution 2021-2022 fellow.
On 9 October 2022 Austrian voters will elect their next president. Alexander Van der Bellen, who is supported by four out of five major political parties, is seeking re-election. He is currently leading the polls with 55% and is thus expected to be (re)elected as president already in the first round. If no candidate obtains an absolute majority of votes (50%+ 1 vote), the two leading candidates would proceed to a second round to be held in four weeks. In 2016, Van der Bellen won the run-off against the right-wing candidate, Norbert Hofer (Freedom Party - FPÖ). In 2022 FPÖ is backing Walter Rosenkranz (16% of votes according to the polls). Other candidates are independent or representatives of minor parties. They are also all men.
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Austria’s rule of law challenges: Justice system in the spotlight
Austria is ranked quite high in the rule of law rankings. Judges are widely perceived as independent and the perception of corruption in the public sector is relatively low as well.
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Despite this seemingly positive record, the rule of law has been challenged on several occasions in the past two years, most vividly where politicians sought to obstruct inquiries into corruption allegations. Reports about political meddling with high-level judicial appointments are alarming. Prosecutors continue to face scrutiny and at times political attacks in the context of high-level corruption cases. The EU and Council of Europe have highlighted the need to reinforce structural guarantees of prosecutorial and judicial independence to minimize political pressure on these institutions.
Prosecutors’ independence in high-profile corruption cases
The European Commission identified prosecutorial independence as a major issue in Austria and called for reforms to reinforce it. Given the number of high-level corruption cases, the Commission emphasised the need for an independent specialized anti-corruption prosecution. Austrian prosecution services are hierarchically subordinated to the Ministry of Justice. It remains to be seen if ongoing reforms make institutional arrangements compliant with European standards regarding the independence and accountability of prosecution services. Such a reform is particularly needed in view of the increased pressure on and even attacks against prosecutors in connection with high level corruption cases.
Challenges with Parliamentary Inquiry into Alleged Corruption
As the criminal investigations unfold, in December 2021, the Parliament (National Council) set up an investigative committee into alleged corruption concerning ÖVP (Austrian People’s party, the largest party in the Parliament, currently in government). An academic commentator has argued that government strategically impeded such inquiries in the past. It is a subject of concern that according to the current rules of procedure, the President of the National Council (Wolfgang Sobotka, ÖVP) chairs investigative committees. Opposition parties accused him of bias, but he refused to step down as a chairperson. Instead, he has only agreed to relinquish chairmanship on a case-by-case basis, depending on the witnesses interviewed.
In the past, the Parliamentary Committee had difficulties in obtaining the relevant information from the Ministry of Finance, with data protection being used to justify refusal. The Committee received support from the Austrian Constitutional Court, with the latter affirming the constitutional obligation to hand the information over. After the continued failure of the Ministry to deliver the required information, the Constitutional Court started execution proceedings and applied to the President of the Republic to execute its judgment. As a result, the Ministry provided the information, but subject to restrictions (without digital access, due to their classification as ‘secret’). Overall, in that instance, the rule of law prevailed in that the government was forced to comply. However, there are limitations as to what can be achieved through such parliamentary inquiries.
Political influence on high-level judicial appointments and risks for judicial independence
In Austria, the decision-making on judicial careers is organised in a way that gives the executive considerable power and limits the involvement of rank-and-file judges. This prompted calls for moving to a system that involves judges (elected by judges) in affairs related to judicial careers, thereby minimizing undue political influences.
Political meddling with high-level appointments in the judiciary and the lack of involvement of judges in such appointments have emerged as problematic. In January 2022 it was revealed that the parties in government secretly divided top-level positions, including those in the judiciary, among themselves. This revelation triggered the reform of the procedure for appointing the Supreme Court president and vice-president. The Ministry of Justice announced plans to involve a body representing the judiciary in this process, but its precise composition remains to be decided.
Concerns have been raised also as regards the lack of judges’ involvement in the appointment of administrative court presidents and the fact that court presidents do not have to be selected from among already appointed judges. However, reforms on this matter do not appear to be planned. Judicial recruitment procedures are also being reformed to allow greater involvement of judges, after long-standing criticism and to fulfil recommendations including those from GRECO. Currently, higher regional court presidents propose candidates for appointment by the executive. The proposed law should change this by giving this power to the body consisting of the president and vice president of the higher regional court as well as three judges elected by peers. Another concern is related to the absence of possibility for judicial review for all judicial appointments and no plans for it to be introduced.
How consequential are presidential elections in terms of the rule of law?
Austrian presidents have significant powers on paper, such as, for example, the power to appoint and dismiss the Prime Minister, the power to dissolve the Parliament (National Council) and the power to call a referendum. However, they are typically unable to use these powers effectively in practice or choose not to. In the past, presidents exercised restraint and rarely used constitutionally guaranteed powers, if ever. For the situation to change, the President would have to envision a much more active role, inconsistent with what has been established in practice so far. Also, the context has to be favorable for the exercise of presidential powers. Exercise of such powers will only make sense if it is perceived as legitimate and has solid chances of success.
Van der Bellen will quite likely be elected for the second term. Rosenkranz, the candidate backed by FPÖ appears to be far behind, according to the polls. If elected, Van der Bellen may be expected to stick to the traditional role of the president and be careful with the powers attached to his position, unless forced to proceed otherwise. Consequently, it is unlikely that the presidential election results will have major bearing on the rule of law situation in Austria. Building resilience of the system against rule of law backsliding through continuation of reforms is not in the President’s hands. But he could still play an important role in the overall system of checks and balances. In theory, he could refuse to appoint the leader of the largest party according to the results of the next parliamentary elections as the head of government, for example, due to their being anti-European or capable of endangering the rule of law. However, the likelihood of such refusal is low. Based on the long-standing practice, the president typically approves whoever parliamentary majority already chose as a candidate. On the other hand, the President could use his powers at will to reinforce the rule of law, for example, by helping enforce constitutional court judgments (see above for the example) or refuse signing problematic bills into laws (not to be confused with a full veto power).
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