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Does the law foresee the shift of the burden of proof in civil / administrative procedures? Are there problems of implementation reported by independent authoritative sources?

Key Area:
Anti-discrimination Legislation & Implementation
Discrimination, Equality
22/12/2011 - 12:37
Short Answer

Yes. The shift of the burden proof is foreseen by Equal Treatment legislation. Problems in concrete interpretation are reported by independent sources.

Qualitative Info

The Austrian Equal Treatment Act lowers the burden of proof for the plaintiff (Article 26 para 12). According to the law, the plaintiff has to make plausible that a discriminatory act has happened. Thereafter, the respondent has to prove that “it is more likely that a different motive - documented by facts established by the respondent - was the crucial factor in the case or that there has been a legal ground of justification. This is not completely in line with the requirements of the AD Directives, which do not only ask for probabilities but for a proof if plausibility is given. A 2008 Supreme Court decision has clarified the need to interpret the Austrian provision in line with the AD Directives. Independent institutions like the Austrian Ombudsman Board, the Litigation Association of NGOs against discrimination, ZARA, the Ludwig Boltzmann Institute of Human Rights, the Ombud for Equal Treatment have repeatedly criticised the non-compiance of the relevant provision with European law.



Groups affected/interested Migrants, Refugees, Roma & Travelers, Muslims, Ethnic minorities, Religious minorities, Linguistic minorities, Majority, Asylum seekers, Lesbian, Gay, Bisexual and Transgender, Persons with disability
Type (R/D)
Key socio-economic / Institutional Areas Policing - law enforcement, Employment - labour market, Housing, Health and social protection, Education, Anti-discrimination
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