Legal professions - Austria
TABLE OF CONTENTS
Attorneys at law:
Training of judges:
After the conclusion of the law studies, the practical training after completion of the court practice in the judicial preparation service takes place at non-university institutions. Every year, about 60 candidate judges are appointed by the Federal Minister of Justice after applying (assessment centre with psychological aptitude investigation and with the judges’ elected representatives having the possibility to express views) for the permanent positions publicly advertised by the presiding judge of one of the four higher regional courts. The judicial preparation service (including court practice) lasts in principle for four years and is carried out at district courts, regional courts, a public prosecutor’s office, a prison and at the office of an attorney at law or a notary. Part of the training service can possibly also be done at the higher regional court, the supreme court or the Federal Ministry of Justice. The judicial preparation service concludes with the judicial office examination.
Appointment as a judge:
After passing the judicial office examination, an application is made for a vacant permanent position as a judge (the presiding judge of the higher regional court publicly advertises available permanent judicial positions which are to be filled). After the time limit for applications for all permanent positions which are to be filled at the district courts and the regional courts has expired, the personnel division of the respective regional court and the personnel division of the superior higher regional court make a proposal as to how the positions are to be filled (comprising at least three persons; if more than one position is to be filled, at least twice as many persons as there are judges to be appointed).
The appointment as a judge is made by the Federal President. On the basis of the delegation of this right to the Federal Minister of Justice, that minister undertakes the appointment to most permanent judicial positions. Only Austrian nationals can be appointed as judges.
Status of judges:
They are civil servants (federal employees). The independence of the judges (freedom from taking instructions, Section 87 of the Austrian Federal Constitution Act (Bundes-Verfassungsgesetz – B-VG)) is guaranteed in that it is impossible to remove them from office or to transfer them (Section 88 B-VG); apart from when judges retire permanently after reaching the statutory age limit, they can only be removed from office or transferred to another position or retired against their will in the circumstances and in the manner provided for by law and on the basis of a formal judicial decision.
The constitutional special status of the judges arises only in the exercise of their judicial office (in dealing with all court business allocated by law and under the allocation of business, with the exception of justice administrative matters which cannot under the provisions of the law be dealt with by administrative tribunals or committees).
- Official Court: Any judge who culpably contravenes his professional obligations is answerable to the disciplinary court, which is established at the higher regional court or at the Supreme Court and consists solely of judges.
- Criminal Court: Any judge who, by culpable breach of his professional obligations, also commits a criminal offence is answerable to the criminal court (e.g. in the event of abuse of official powers).
- Civil Court: Any parties who have suffered a loss resulting from unlawful and culpable conduct by a judge can assert this loss only against the State. The State can have recourse to the judge in the event of intentional acts and gross negligence.
2. Public prosecutors:
Public prosecutors must perform the duties allocated by law to the public prosecutors’ offices, especially the interest of the state in maintaining the criminal law. In the civil law area, public prosecutors are to intervene only in matters of nullity of marriage and in parentage proceedings (and then only to a very limited extent).
At each of the first-instance courts of justice with jurisdiction to hear criminal cases (a total of 17 courts) there is a public prosecutor’s office, at each higher regional court there is a higher public prosecutor’s office and the office of the director of public prosecutions is at the Supreme Court. The higher public prosecutor’s offices and the office of the director of public prosecutions are directly subordinate to the Federal Minister of Justice. The office of the director of public prosecutions has no right to give instructions to the higher public prosecutor’s offices or to the individual public prosecutor’s offices.
The public prosecutor’s offices at the courts of first instance are also responsible for bringing prosecutions at the district courts in the area covered by each court of justice. This duty is performed by “district attorneys” who are under the supervision and management of the public prosecutors.
Instructions to public prosecutors’ offices must be given in writing, with reasons being supplied. If that is not possible because it is dangerous to delay, an instruction which is given orally must be confirmed in writing as soon as possible.
A public prosecutor who considers that an instruction given to him is unlawful must inform his public prosecutor line manager of this. In this case, as in all cases when a public prosecutor requests an instruction in writing, the line manager must give the instruction in writing or repeat it in writing, failing which it is considered to have been withdrawn.
Appointment as a public prosecutor:
Only those who satisfy the requirements for appointment as a judge and who have practised for at least one year as a judge at a court or as a public prosecutor can be appointed as a public prosecutor. A further requirement for being appointed is to be an Austrian national.
Vacant permanent positions for public prosecutors, like permanent positions for judges, must be advertised publicly to be filled. Four-person personnel committees, the members of which must meet the requirements for appointment as a public prosecutor, are to examine the applications that are received and make (non-binding) proposals as to appointments. Personnel committees must be established at the higher public prosecutor’s offices, at the office of the director of public prosecutions and at the Federal Ministry of Justice.
It is the Federal President who has the right to appoint public prosecutors but, as in the case of the judges, he has delegated the right of appointment in respect of most permanent positions for public prosecutors to the Federal Minister of Justice.
- Public prosecutors who culpably breach their professional obligations are answerable to a disciplinary committee established at the Federal Ministry of Justice. The disciplinary committee makes its decisions in three-person divisions, of which one member must be a public prosecutor. At second instance, apart from some exceptions, the higher disciplinary committee established at the Federal Chancellor’s office has jurisdiction, and it also makes its decisions in three-person divisions. One member of the division must belong to the Justice Department. The sentencing powers of the disciplinary committees extend to dismissal from the service.
- The criminal and civil responsibility of public prosecutors is regulated in the same way as in the case of the judges.
- In Austria, registrars are an essential pillar of the judicial system. There are about 700 registrars, and they now make more than three quarters of all court decisions.
- Registrars are specially trained court officials to whom the handling of specifically circumscribed business in civil matters at first instance has been transferred on the basis of the Austrian Federal Constitutional Act (Section 87(a) B-VG) and the Austrian Registrars Act (Rechtspflegergesetz). In this function, the registrars are subordinate only to the judge who is their respective line manager and are bound only by that judge’s instructions, which in practice are given extremely rarely.
Registrars’ work areas:
- Registrars are used in the following work areas:
- Civil procedure, enforcement and insolvency matters (“debt settlement proceedings”);
- Non-contentious matters;
- Land register and ship register matters;
- Companies register matters.
- Each of these work areas requires special training and a special appointment as a registrar in respect of the relevant work area.
- A special provision applies to summary proceedings for orders to pay debts (see the Austrian page entitled “Expedited and simplified proceedings”). All registrars have jurisdiction to hear these summary proceedings provided that they completed their training as registrars after 31 December 1985. Registrars who were trained under the previously applicable provisions can apply to extend their work area to include summary proceedings after completing a three-month additional training course.
The demarcation between the jurisdiction of judges and registrars:
- A registrar’s sphere of activity does not include all work and decisions arising in the abovementioned work areas. The business that comes within the registrar’s sphere of activity is specifically set out in the Austrian Registrars Act and the extent of the sphere of activity varies from one work area to another.
- For example, in the work area of land register matters, practically no duties are reserved now for the judge; this work area is therefore in practice an exclusive domain of the registrars.
- The majority of enforcement matters are also disposed of by registrars; only particularly difficult proceedings (such as enforcement in respect of real estate or the abovementioned debt settlement proceedings in respect of assets of more than €50 000) are reserved for the judge.
- In estate and curatorship matters forming part of the non-contentious procedure, in summary proceedings for orders to pay debts and finally also in companies register matters, the registrar’s sphere of activity is also very wide. Accordingly, estate matters in which the assets do not exceed €100 000 are dealt with by registrars, as are curatorship proceedings in which the assets under curatorship do not exceed €100 000.
Career and training of registrars:
- It is a requirement for a registrar’s career to pass the school-leaving examination (the “Matura”) at a secondary school. This examination can be replaced by a “civil service promotion examination” if the relevant Austrian national has, since reaching the age of 18, spent eight years in a position as a state employee.
- Before being admitted for training as a registrar, the relevant person must work in the court office for at least two years and must pass the court office examination intended for court office employees, as well as the specialist service examination. Only then is it possible for the court employee to be admitted for training as a registrar by the presiding judge of the higher regional court.
- The training to become a registrar lasts three years and includes the following:
- employment at one or more courts, preparing to deal with matters in the intended work area,
- taking part in a basic course and a work area course, and
- the registrar’s examination, to be passed in two parts.
- After passing the registrar’s examination, the candidate registrar receives a diploma issued by the Federal Minister of Justice.
- This diploma must be distinguished from the registrar’s certificate, which is only issued after the three year training and confirms the authorization to practise the profession of registrar. The registrar’s certificate gives the relevant court officer the fundamental authorization to deal with the judicature business that comes within his area of activity in respect of the federal territory.
- The presiding judge of the higher regional court must subsequently determine the court at which the relevant court officer is to be employed as a registrar and, if applicable, for what period. Within the court, the registrar is allocated by the court manager to a court department managed by a judge, or if applicable to a number of court departments. Within the court department, the relevant judge is responsible for the distribution of business.
4. Attorneys at law:
- Attorneys at law are called upon and authorized to represent parties in all court proceedings and out-of-court proceedings in all public and private matters before all courts and public authorities of the Republic of Austria.
- No official appointment is required to practise as an attorney at law in Austria; however, professional practice is conditional upon the requirements set out below.
Requirements for professional practice:
- Any person wishing to enter the profession of attorney at law must spend at least nine months at court as a legal trainee (court practice) and three years at the office of an Austrian attorney at law as a candidate attorney at law. In total, it is necessary to prove five years’ legal professional work and that the attorney at law examination has been passed.
- The attorney at law examination can be taken after practical employment for three years, of which at least nine months are spent at a court and at least two years at the office of an attorney at law. In order to sit the examination, it is also a requirement to take part in the training courses which are mandatorily prescribed for candidate attorneys at law by the Chamber of Lawyers.
- A person who meets the stated requirements can arrange to be entered on the list of those Chambers of Lawyers in whose area he wishes to practise.
- Under certain circumstances, an attorney at law from a member state of the European Union or from another contracting state of the European Economic Area Convention may, within the Federal Republic of Austria:
- carry out work as an attorney at law on a temporary basis,
- apply to be entered on the list of attorneys at law of the responsible Chamber of Lawyers, after sitting an aptitude examination, or
- set up a practice in Austria immediately without any prior aptitude examination under the professional title used in the country of origin and become fully integrated into the Austrian legal profession after a three-year “effective and regular” professional practice in Austria.
- Under certain circumstances, a member of a Chamber of Lawyers of a GATS member state can temporarily perform certain precisely delimited work as an attorney at law in the Republic of Austria.
- Disciplinary liability
- Attorneys at law who breach professional obligations or bring the profession into disrepute are answerable to a disciplinary council selected by the local Chamber of Lawyers. The penalties which may be imposed by the disciplinary council extend to striking off the list of attorneys at law.
- Decisions at second instance are made by the Supreme Appeal and Disciplinary Committee for attorneys at law and candidate attorneys at law in four-person divisions consisting of two judges from the Supreme Court and two attorneys at law.
- Additionally, attorneys at law are obviously also subject to criminal and civil liability.
- The notary, as an independent and impartial institution of the precautionary administration of justice, is available to the law-seeking public in order to regulate private legal relationships. His main duty is to participate in legal processes and in legal assistance for the public. Notaries draw up public documents, take care of third party property, draft private certificates and represent parties, mainly in the non-contentious area. Notaries are additionally responsible for work as agents of the court in non-contentious procedure. In particular, they are consulted as “court commissioners” to conduct probate procedures. Notaries must ensure that a deceased person’s assets are secured and passed to the persons entitled. This work requires special knowledge of the law of inheritance and of non-contentious procedure, which also means that notaries are constantly consulted by the public to assist in drafting wills and especially to give advice and representation in inheritance matters.
- A notary exercises a public office but is not a civil servant. He bears the commercial risk of running the office but he does not run a business. He is similar to a freelance but as a court commissioner he is a judicial officer.
- Changes in the number of notarial positions and in the locations of their offices are made by regulation by the Federal Minister of Justice. There are currently about 460 notarial positions in Austria.
Training to be a notary:
- It takes a long time to be appointed as a notary. Anybody who has completed his law studies and is interested in the profession of notary must look for a notary who will accept him as an employee and have his name entered on the list of candidate notaries. Entry on the list of candidate notaries maintained by the responsible chamber of notaries is permissible only if the relevant person has had nine months’ court practice as a legal practitioner and has not yet reached the age of 35 when first entered in the list of candidates. Registration can otherwise only be refused on important grounds, in particular for example in the case of a collapse in his financial circumstances.
- Once one has become a candidate notary, this activity must be an exclusive activity. Approval is required for ancillary activities.
- The notarial examination must be sat in two parts. The first part can be sat at the earliest after a candidature period of 18 months and it must be sat at the latest at the end of the fifth year of the candidature period, and the second part can be sat at the earliest after a further practical employment of one year as a candidate notary and, at the latest, before the expiry of the 10-year candidature period. In order to be admitted to the notarial examination, the candidate notary must attend training events mandatorily prescribed by the Chamber of Notaries.
Appointment as a notary:
- Notarial positions which have become vacant or been newly created must be publicly advertised before being occupied. The law (Section 6 of the Austrian Rules for Notaries (Notariatsordnung)) requires, inter alia, that applicants for a notarial position:
- possess Austrian nationality,
- have successfully completed the law degree course or the law and political science degree course,
- have passed the notarial examination and
- are able to prove seven years of employment in the legal profession, including at least three years as a candidate notary after sitting the notarial examination.
- These basic requirements, however, do not give any right to be appointed as a notary. In the appointment procedure, the applicants are assessed and ranked by the Chamber of Notaries which has geographical jurisdiction, and subsequently by the personnel divisions of the responsible first instance court and of the higher regional court, the length of the practical employment being of decisive importance. The Chamber of Notaries and the two personnel divisions each submit a three-person proposal to the Federal Minister of Justice. Although the Minister is not bound by the proposals, in practice he appoints only one of the ranked applicants.
- When he is first appointed as a notary, the person concerned is currently on average about 41 years old. He can practice as a notary until 31 January of the calendar year following his 70th birthday. After the age of 64, it is no longer permissible to be appointed to a different notarial position, and it is also not permissible to be appointed to a different position until the applicant has been in practice at his last notarial position for at least six years. An official transfer of a notary to a different notarial position is not permissible.
Supervision of notaries; legal liability:
- Because of their duties in drawing up public documents and as court commissioners, notaries are subject to particular control. The supervision of notaries is the responsibility of the Federal Minister of Justice, the Justice Administration Department and, directly, of the Chambers of Notaries.
- Notaries have their own disciplinary law.
- Disciplinary offences are punished at first instance by the higher regional court as the disciplinary court for notaries, and at second instance by the Supreme Court as the disciplinary court for notaries, and the tribunals which hear the cases must in each case also have notaries as members.
- The list of penalties that can be imposed by the disciplinary court extends to removal from office.
- Mere administrative offences are punished by the Chamber of Notaries and, as an appeal tribunal, by the standing committee of the Austrian Chamber of Notaries.
- In addition to his disciplinary liability, the notary is obviously also liable under criminal and civil law.
- Where the notary acts as a court commissioner, he is deemed to be a civil servant for criminal law purposes and is therefore liable for “crimes of office” which include in particular the abuse of official power.
- His liability under civil law is regulated differently. If he acts as a court commissioner, he is subject to the same liability provisions as judges and public prosecutors. Claims cannot therefore be brought directly against him by the parties, who must instead direct their claims for compensation to the State. The State can bring a recourse action in the event of intentional acts or gross negligence. Apart from his activity as a court commissioner, he is directly answerable to the parties under civil law.
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