Indicator history

Sec. 1 of the Federal Constitutional Act for the implementation of ICERD stipulates that any form of racist discrimination is prohibited. All state bodies and officers including legislation and implementation have the obligation not do discriminate on grounds of race, colour of skin, descend or national or ethnic origin. Furthermore, the Police Act provides precise legal regulations for police interventions, determining that police officers have to "refrain from any action liable to give the impression or their being biased or that might be perceived as discrimination on the grounds of gender, national or ethnic origin, religion or sexual orientation".

Sect. 312 of the Criminal Code on Quälen oder Vernachlässigen eines Gefangenen (Ill-treatment and abuse of a prisoner) says that any official who causes a detainee or any other person encountered in the course of their duties physical or mental pains is punishable with up to two years imprisonment or between two and five in the event of serious injury and ten in the event of death (see Amnesty International 2009, p. 17).

There are two authorities responsible for investigating criminal offences committed by police officers:

Until the end of 2009, the Büro für interne Angelegenheiten (BIA) [Office for Internal Affairs] was in charge for the investigation of criminal allegations of serious ill-treatment against members of the Austrian police force.  As of 01.01.2010 this office was replaced by the Bundesamt für Korruptionsbekämpfung und Korruptionsprävention (BAK) [Federal Bureau of Anti-Corruption]  - an institution of the MoI set up outside the Directorate-General for Public Security – and took over the tasks of the Office for Internal Affairs. The director and his/her representative are appointed by the Minister of the Interior; instructions of the Minister of the Interior are possible; but a Rechtsschutzkommission [legal protection commission] within the MoI is tasked to investigate allegations against activities of the Federal Bureau if the person concerned cannot avail him- or herself of legal remedies; members of this Commission are independent and not bound by any instructions.

The second authority is the Büro für Besondere Ermittlungen (BBE) [Office for Special Investigations] of the Bundespolizeidirektion Wien [Vienna Federal Police Department] (under the authority of the Vienna chief of police). It is responsible for investigations of allegations of less serious ill-treatment against police officers from this department. There are no legal provisions guaranteeing its independence.  In other provinces other police units are responsible.
Both bodies report their investigations to the prosecution service (Staatsanwaltschaft); the prosecution service may order the two bodies to gather evidence. Although the prosecution service (bound to instructions of the Ministry of Justice) is responsible for the initiation of criminal proceedings, in the past the predecessor of the Federal Bureau of Anti-Corruption as well as the Office for Special Investigations could influence the decision through the result of their investigations. Victims of human rights violations could not engage in the way their cases were handled by these two bodies and the prosecution service.

Victims of human rights violations have the possibility to file a complaint with the Unabhängigen Verwaltungssenate (UVS) [Independent Administrative Tribunals (IAT)] (there is one in each province). A person believing that he/she was ill-treated by the police or that police misbehaved can file a
• Maßnahmenbeschwerde [complaint regarding the violation of individual rights] according to Sec. 88 Sicherheitspolizeigesetz (SPG) [Security Police Act (SPA)]  or
• Richtlinienbeschwerde [complaint for failure to comply with a MoI decree on Guidelines on Police Intervention ] according to Sec. 89 Security Police Act; the complaint is transferred to the supervising police official; the complainant has the right to be informed by this official of whether a violation is deemed to have occurred (but not of any potential disciplinary measure); if a violation is not deemed to have occurred the complainant can demand a decision of the IAT. The supervising police official can invite the complainant to discuss whether the complaint can be resolved amicably (Sec. 89 SPA).

The Tribunal is competent to investigate and decide on the lawfulness of actions of the police (complaints are directed against the supervising police authority) but not to make decisions about the individual responsibility of the individual perpetrator; it is not competent to impose penalties (neither on the police authority nor on the individual officer) or to award compensation to the victim.  Thus, a decision of the IAT does not have any consequences for the police officers responsible for the human rights violation. Only under further cost risks in a new proceeding before a court compensation could be sought; however, the burden of proof would rest on the complainant.

Although the complaints procedure is available to all victims of police violence and racist discrimination it is only advisable to approach the Independent Administrative Tribunal if there is solid evidence: In case of the dismissal of the complaint the complainant has to bear the cost of the proceedings (up to EUR 1,000).  It is not possible for the victim to apply for legal aid. There is also a certain risk of victimisation when complaining (e.g. false allegations like resistance to law enforcement officials).  Therefore NGOs demand the introduction of a ‘human rights procedure’ for victims of racist abusive police behaviour (content of the complaint should be the responsibility of the State for the behaviour of its organs – independent of individual responsibility of officers); complaints should be cost-free; further, a finding of the IAT on the violation of the SPA and/or ECHR should be connected with the awarding of compensation.

Sources: http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10000533; http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10005857; http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10002296, Amnesty International: Victim or Suspect - a Question of Colour. Racial Discrimination in the Austrian Justice System. 2009. Available at: http://www.amnesty.org/en/library/asset/EUR13/002/2009/en/2489f108-4004-4330-8bb5-181d93a3c69a/eur130022009en.pdf; http://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20006390.