Beiträge zur Rechtsgeschichte Österreichs, 6. Jahrgang, Heft 2/2016

Although as early as 1464 Matthias Corvinus had separated the part of the Hungarian Chancery that dealt with judicial affairs (cancellaria minor, tabula regia) from the rest, the Hungarian Court Chancery (cancellaria maior, Ungarische Hofkanzlei) in the Habsburg era still exercised some competences in this field. In addition to the issuing of royal pardons and the participation in courts of arbitration and extraordinary tribunals, a vast array of royal mandates enabled the Chancery to interfere in lawsuits in almost any state of the proceedings. Based on archival sources mainly from Budapest and Vienna, the article offers an overview of the development of the institution and its considerable judicial activities from 1526 until its reform in 1727, which more or less put an end to its involvement in jurisdiction, even if not completely. In addition, the development of the Chancery’s personnel – offices, numbers, career patterns – is analysed.

Schlagworte: Hungarian Court Chancery, jurisdiction, mandate, pardon, Hungary, Habsburg era

Under the Habsburg rulers, the Bohemian Court Chancery developed not only into the central ministry of the Bohemian composite state (which itself had been a part of the Habsburg monarchy since 1526) but also into its highest court of law. This study, using some fresh sources, analyzes this development and its consequences. Although the Renewed Land Ordinance for Bohemia (1627) and its counterpart for Moravia (1628) have been rightly described as milestones in this process, this study argues that the implementation of the right to appeal against the noble courts’ decisions in Silesian duchies had prepared this development from the second half of the sixteenth century onward. At this stage, however, appeals were still directed to the Court of Appeal which had been erected in Prague in 1548. Nevertheless, the Chancery became involved too and the seventeenth century then witnessed its rise into the central court of revision for almost all noble courts in the Bohemian lands. Supreme Chancellor Wilhelm Slawata´s personal letters from the 1630s and 1640s offer useful insights into how the Chancery summoned and coordinated revision commissions in which councillors from other courts (mostly from the Imperial Aulic Council and from the Lower Austrian ‘Regierung’) used to be appointed because the chancery long lacked the necessary staff. So far unused sources from later decades show that revision requests became a burden which the Chancery, despite its striking rise in the eighteenth century, was unable to manage. The slowness of justice finally became one of the arguments which helped to dissolve the Chancery in 1749 and to transfer its many councillors to the newly founded ‘Obriste Justizstelle’.

Schlagworte: appeal, Bohemian Court Chancery, legal remedy, revision

Whereas the Imperial Aulic Council (Reichshofrat) as an institution of the Holy Roman Empire in the Early Modern era has been a focus of historical research since the 1960s, there is little information about its duties regarding the Austrian hereditary lands (Erbländer). After pondering the question of the Council’s competence for Austria, the article offers an overview of the issues from the hereditary lands discussed by the Aulic Councillors during the 16th century: political questions (rarely), fiefs (not too often), privileges and pardons (more often) and complaints by subjects who could not get their claims satisfied or wanted to avoid legal action (equally often). It is argued that the Imperial Aulic Council, in addition to being an organ of the Empire, was also an institution of the Austrian hereditary lands. In this capacity, however, its function was not in the first place that of a (supreme) court. Rather, it worked as a council of the monarch to deal with applications and complaints still to be decided by the monarchical head of government, regardless of the existence of ordinary institutions, to fulfil his duties in the fields of administration and the dispensation of justice.

Schlagworte: administrative history, Archduke of Austria, Austrian Hereditary Lands, Imperial Aulic Council

The origin of a judicial authority serving as a central court of the hereditary provinces of the Habsburg monarchy was result of the reform of 1749, by which the union of the Austrian and Bohemian provinces was transformed into a centralized state: By separating administrative from judicial affairs, a promotion of jurisdiction should be effectuated. The territorial scope of the new judicial authority was limited to the Union of non-Hungarian (Cisleithanian) provinces of the Austrian monarchy; its factual jurisdiction comprised all civil and criminal matters (except for military personnel) as well as specific agendas in the field of voluntary jurisdiction. In addition to these competences relating to the jurisdiction of general courts, the Supreme Justice Office was also responsible for matters under the jurisdiction of public law courts, as well as for several agendas in regard to the administration of justice. During the Vormärz’ period the Supreme Justice Office developed into a court in criminal tax law as well as an intergovernmental arbitration body of the German Confederation. In addition to all these tasks it played a significant role in the field of legislation by issuing opinions on draft laws. Immediately after the outbreak of the 1848 revolution, the Supreme Justice Office served as a provisional Supreme Court for the Cisleithanian provinces of the Austrian monarchy.

Schlagworte: administration of justice, Austrian monarchy, central administration, Habsburg Monarchy, jurisdiction of public law courts, legislative committees, public management and legal care, Separation of Powers, Supreme Court, supreme tribunal

The Lord High Steward (Obersthofmarschall) was one of the four highest officers at the Habsburg court. Until the end of the 18th century the Lord High Steward’s office was a court for all members of the Imperial household. In 1815 it became a special court for members of the Imperial family. This article deals with the jurisdiction and the procedure of the Lord High Steward’s office as the court of the Imperial family.

Schlagworte: Austria-Hungary, Imperial family, Imperial household, Obersthofmarschallamt

The Catholic Church held jurisdiction in matrimonial matters in the Habsburg Monarchy until 1783. The vast majority of the parishes of Austria below the Enns were subordinated either to the consistory of Passau or the consistory of Vienna. The article examines how these two ecclesiastical courts dealt with complaints of quarreling husbands and wives. As the minutes of the proceedings are not preserved, the cases have to be reconstructed from the protocol books of the consistories, which register the activities day by day. The author depicts the rules of procedure based on entries of approximately 2,000 marriage litigations, which have been transcribed and analyzed within the FWF funded project ‘Matrimony before the Court’. The knowledge of the procedural rules is not only useful for legal historians, but an indispensable prerequisite for the understanding of the entries in the protocol books on the one hand, and for the analysis of the strategies of plaintiffs and defendants and their lawyers, respectively, on the other hand.

Schlagworte: Austria below the Enns, consistory of Passau, consistory of Vienna, Catholic Church divorce, Lower Austria, marriage disputes, marriage law, matrimony

The article discusses laws dealing with disciplinary action at the University of Vienna in the timespan from 1848, after Franz Joseph I. ascended the throne, until 1938. The first part deals with students, while the second part of the paper describes the regulations which governed the disciplinary proceedings against professors and lecturers. The development of the norms is described in conjunction with wider historic developments. Examples of proceedings are used to illustrate practical problems and the ramifications of disciplinary action in that period.

Schlagworte: austrofascism, disciplinary action, disciplinary law, University of Vienna

To promote international trade and in order to guarantee legal security for the local traders, the Austrian Emperor introduced a separate court for commerce-related cases in Vienna in 1717. This article explores the reasons for this act as well as the further developments up to the end of the 18th century.

Schlagworte: Vienna, 18th Century, international trade, Commercial jurisdiction

This article starts around 1850, a period which saw a new codification of civil and military penal law with a more precise separation of these areas. Crimes committed by soldiers were now defined parallel to civilian ones. However, soldiers were still tried before military courts. The military penal code comprised genuine military crimes like desertion and mutiny. Up to 1912 the procedure law had been archaic as it did not distinguish between the state prosecutor and the judge. But in 1912 the legislature passed a modern military procedure law which came into practice only weeks before the outbreak of World War I, during which millions of trials took place, conducted against civilians as well as soldiers. This article outlines the structure of military courts in Austria-Hungary, ranging from courts responsible for a single garrison up to the Highest Military Court in Vienna. When Austria became a republic in November 1918, military jurisdiction was abolished. The authoritarian government of Chancellor Engelbert Dollfuß reintroduced martial law in late 1933; it was mainly used against Social Democrats who staged the February 1934 uprising. After the National Socialist ‘July putsch’ of 1934 a military court punished the rioters. Following Austria’s annexation to Germany in 1938, German military law was introduced in Austria. After the war’s end in 1945, these Nazi remnants were abolished, leaving Austria without any military jurisdiction.

Schlagworte: Austria, Austria as part of Hitler's Germany, First Republic, Habsburg Monarchy, Military Jurisdiction

Tezner’s plea against the misunderstanding of absolutistic reforms, as in the context of the rule of law, demonstrates continuities regarding administrative jurisdiction in the history of courts in Austria. The organisational principle of extending benches of judges by including judicial councillors survived all Josephinian reforms. Judicial councillors represented the sovereign’s interests. Studying the decisions of the Supreme Justice Office (Oberste Justizstelle), Tezner found that it provided rather generously for these interests.

Schlagworte: Administrative Jurisdiction, Friedrich TEZNER

Separation of Powers is one of the leading principles of the Austrian Federal Constitution. It is considered to have been developed by Montesquieu. A closer examination shows, however, that his ideas differed from the principles which were written into the Austrian constitutions of the 19th and 20th centuries. In particular, the sphere of administration was extended considerably at the cost of the sphere of the judiciary. The introduction of administrative jurisdiction in Austria, which took place in 1876, did not lead to significant changes in this respect. However, the constitutional amendment of 2012 modified the relation between the spheres of administration and the judiciary, so that one can argue that the boundary between these two powers is now situated roughly at the position where Montesquieu would have located it.

Schlagworte: European Convention of Human Rights, article 6, Charles de Montesquieu, Separation of Powers, Administrative Justice, Administrative Senates, Administrative Tribunals, Administrative Courts

The present organisation of courts with its main characteristics was created, based on earlier structures, in the years 1848 to 1854. Since then, many things have changed. It was not until 1898 that a new, modern civil procedure code was enacted together with additional, modern accompanying legislation.

Schlagworte: civil justice law, organization of justice, Vienna courts

The ‘Graues Haus‘ (literally, the ‘grey house‘) was erected in the Alservorstadt right outside the city boundaries of Vienna between 1831 and 1839. Its original function was to house the Magistrates’ court for criminal matters, replacing the previous court house (known locally as the ‘Schranne’) that had been situated at Hoher Markt. With effect of 1st July 1850 the municipal and manorial courts were abolished and the organisation of courts with which we are familiar today was introduced. At the same time the inquisitorial system was replaced with the adversarial one and public and oral court proceedings became the norm. The ‘Graues Haus’ now accommodated the criminal division of the Vienna Regional Court and the Vienna Prosecutor’s Office. In 1873 construction work began for the ‘Großer Schwurgerichtssaal’, a new court room specifically for jury trials. The court’s jail house was demolished between 1980 and 1996 and replaced with a new facility for the Josefstadt jail; the court itself was provided with modern court rooms. The focus on the achievements of the ‘Rechtsstaat’, a state based on the rule of law, and of modern criminal law is meant to underline the great value of a system of courts which is devoid of any political influence.

Schlagworte: criminal law, criminal procedure, Vienna criminal court

Following the dissolution of parliament in Austria in March 1933, the Dollfuß government massively stripped back the rule of law. Government decrees were used first to limit the independence of the judges and, ultimately, to make it obsolete. In this article, these government measures will be examined within the context of party political power relations in Austria and the constitutional framework of their implementation, as well as in reference to discussions in the council of ministers. Furthermore, for the first time, the actual sanctions against individual judges will be documented in order to illustrate the effects of this government policy in practice. Finally, the claim of a 'national state of emergency', used to justify these measures, will be placed in relation to contemporary discussions of 'national emergency law'. The final chapter will then sketch the conceptual reformulation of judicial independence within National Socialist ideology and demonstrate the formal ending of traditional guarantees of unremovability and non-transferability of professional judges in the 'Third Reich' and consequently, in the wake of the 'Annexation' in 1938, in Austria as well.

Schlagworte: Dollfuß government, independance of judge, National Socialism, state of emergency

The Chamber of Chartered Public Accountants and Tax Consultants was established in 1945 and issued its Regulations for Court of Honour and Disciplinary Proceedings, which contained substantial disciplinary provisions as well as procedural rules, in 1949. The substantial disciplinary provisions were for the first time regulated by state law in the Wirtschaftstreuhänder-Berufsordnung (l955), followed by the procedural rules in the Wirtschaftstreuhänderdisziplinarordnung (l962). A fundamental change took place in 1999 with the enactment of the Wirtschaftstreuhandberufsgesetz, which established type-based penal provisions and an enhanced liberalisation. With the introduction of the Administrative Courts on 1st January 2014, the Disciplinary High Council as a specialised appeals authority was abolished; appeals against first-instance decisions are now referred to the Administrative Court for the respective province.

Schlagworte: Austrian chamber of chartered public accountants and tax consultants chartered accountants, disciplinary law, professional misconduct, tax consultants

The development of modern medical disciplinary law starts in the 19th century. In the mid-19th century doctors associations were founded which also strove for the preservation of the profession’s reputation. In 1892 a 'court of honour' was realized through the Medical Council Act (Ärztekammergesetz RGBl. 6/1892). Despite this, many abuses could not be prevented. Therefore doctors sought to revise their professional rules around the year 1900. As a result of these efforts, the Medical Profession Code (Ärzteordnung) was completed in 1937 (but did not enter into force because of the annexation of Austria into Nazi Germany). In 1949 the Medical Profession Act (Ärztegesetz 1949) renewed the medical disciplinary law. For the time being, this progress has come to an end with the Medical Profession Act 1998 (Ärztegesetz 1998) and its amendment in 2012 (BGBl. I 51/2012).

Schlagworte: court of honour, Medical Council Act, medical disciplinary law, Medical Profession Act, professional rules for doctors