Racism Report 2003 - Zara

Racism Report 2003 Focus Issue: Racism and the Law Page 57Statutory Provisions Pertaining to Combating RacismI. Austrian LawThe summary below covers the most important provisions in the Austrian legal practice pertaining directly to racialdiscrimination.1. Fundamental Constitutional PrinciplesThe Federal Constitutional Law (B-VG, Bundesverfassungsgesetz) and the Basic Law (StGG, Staatsgrundgesetz) ofDecember 21, 1867 on the General Rights of Citizens provides that all Austrian citizens are to be treated equallybefore the law (Article 7, para. 1 of the Federal Constitution, B-VG, and Article 2 of the Basic Law, StGG). Article 14of the European Convention on Human Rights (ECHR) which enjoys constitutional standing prohibits discrimination.It explicitly excludes discrimination on the grounds of race, colour and national origin. The prohibition of discrimination,however, applies solely to rights prescribed in the Convention itself - in other words it applies to the mostelementary human rights only.The international Convention on the Elimination of Racial Discrimination (CERD) provides for protection againstdiscrimination notwithstanding citizenship:Article 2 (1) „States Parties condemn racial discrimination and undertake to pursue by all appropriate means andwithout delay a policy of eliminating racial discrimination in all its forms and promoting understanding among allraces, and, to this end:(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups ofpersons or institutions and to en sure that all public authorities and public institutions, national and local, shall actin conformity with this obligation;(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;(c) Each State Party shall take effective measures to review governmental, national and local policies, and toamend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discriminationwherever it exists;(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as requiredby circumstances, racial discrimination by any persons, group or organization;(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations andmovements and other means of eliminating barriers between races, and to discourage anything which tends tostrengthen racial division.(2) States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields,special and concrete measures to ensure the adequate development and protection of certain racial groups or individualsbelonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rightsand fundamental freedoms. These measures shall in no case en tail as a con sequence the maintenance of unequalor separate rights for different racial groups after the objectives for which they were taken have been achieved.“As of the year 2002 the procedures pertaining to individual petitions or „communications“ (Article 14 CERD) alsoapply to Austria enabling individuals who consider themselves victims of a violation of any of the rights set forthin the Convention and who have exhausted other available local remedies to communicate their case to the UNCommittee for revision.2. Penal Codea) Insults§ 115, para. 1 of the Penal Code (StGB) describes the offence of insult as follows:In the event of being insulted, ridiculed, physically abused or threatened with grievous bodily harm in public orin the presence of several persons, the person guilty of the insult is to be punished with a prison term of up to threemonths or a fine of up to 180 units based on net daily income.Pursuant to §115, para. 2, „in the presence of several persons“ means „in the presence of more than two personsother than the culprit and the person under attack“ who are capable of perceiving the insult. In practice, this meansthat a large number of cases involving persons being insulted, ridiculed or physically attacked are not subject topunishment by Austrian Law simply because the victim can present only one witness or none at all.A „slight insult“ is considered an offence subject to private charges. To charge the insulter the victim needs tofile the charge him- or herself. In the event of the insulter being acquitted the insulted party has to bear the legalcosts.§ 117 para. 3 of the StGB contains a qualified definition of insult. The offence of a specific racist insult is givenif the insult is made on the grounds of the victim‘s affiliation with a specific group - „an established church or religiouscommunity, race, people, tribe or state“ - and „if it consists either of physical abuse or threatening of physical