Volume 12, Issue 1 -

Today, the Austrian Constitutional Court looks back on an eventful history. The Austrian model of constitutional adjudication attracted wide attention, in particular after World War II and proved to be a success story. Carefully managing both the influences of the ECHR and, most recently, those of European Union law, the Court has become an active player in the dialogue of the courts involved.

It is fully legitimate and permissible under international human rights law to limit the right to vote to the citizens of the State. The relationship between sovereignty, citizenship and the right to vote is to some extent self-evident and undramatic. However, the triangular relationship between the three concepts is an important background factor summarizing much of what States are and do, and therefore, it is necessary to make visible the self-sustaining nature of the triangle and explicate the three corners of the triangle by means of drafting history of the human rights conventions and case law from international and national court instances as well as by means of examples from national law, in this case drawn from the Nordic space. The point here is that although the various human rights conventions formulate a right to participation through elections, the normative powers exercised in relation to sovereignty, citizenship and the right to vote are held by the national law-maker, and they are not influenced much by international human rights law.

The European Court of Human Rights needs to find a balance between upholding diversity (and respecting sovereignty through the margin of appreciation doctrine) on the one hand, and the aspiration to set universal human rights standards, on the other. Responses to these opposing forces are reflected in various doctrines and methods of interpretation, judicial choices that often predetermine the outcome of a case. Through examples taken from the LGBT rights jurisprudence, the article explores how the competing notions of European consensus (a conservative one and a dynamic one) relate to other techniques of interpretation, and how they influence the decision-making of the Court. The article explains that the Court applies the notion of consensus in an arbitrary manner. While the conservative modalities of the consensus argument appear to constrain the Court and allow considerable leeway for domestic authorities, the dynamic notions facilitate the development of European human rights standards, even if it may not be evidenced convincingly by the practices of the member states. The article argues that in its current state, without a foreseeable and disciplined methodology, the consensus inquiry is not capable of building a bridge between the margin of appreciation and the dynamic interpretation.

The article examines the issue of compatibility of the Family Reunification Directive with the important changes that the adoption of the Lisbon Treaty brought to the field of fundamental rights in the EU especially considering the fact that the Charter of Fundamental Rights of the EU gained the same legal value as the treaties. The article examines all possible scenarios that may derive from Art 52 (3) of the Charter and the problems or issues that each of them may entail for the immigrants’ right to family life in the EU. This examination reveals that certain aspects of the provisions of the Family Reunification Directive are not compatible with Art 8 of the European Convention on Human Rights, and proposes that the EU should, in any event, provide more extensive protection than the one provided for by the Convention. The article proposes a reunification model which may be more compatible with the post-Lisbon fundamental rights scene.

The building in Braunau am Inn in which Adolf Hitler was born was privately owned until its expropriation at the beginning of 2017. The former owner believed the expropriation to be unconstitutional and filed a complaint before the Austrian Constitutional Court. The Constitutional Court denied that there was an infringement either of the Right to a Fair Trial under Art 6 ECHR or the Right to Property under Art 5 StGG and Art 1 1. Protocol to the ECHR and found the Law on Expropriation to be constitutional.