11.1 Introduction
This chapter analyses the lasting impact of the 2017/2019 government coalition on the state of refugee rights in Austria. We investigate to what extent the policies and legal initiatives of this government restricting refugee rights feature democratic decay, in particular elements of populism. The legacy of this coalition is of interest also for constitutional scholars as the Austrian Government was represented (again) by the Austrian People’s Party (Österreichische Volkspartei, ÖVP) and the Freedom Party of Austria (Freiheitliche Partei Österreichs, FPÖ), a so-called radical right populist party.Footnote 1
First, we provide an account of refugee rights restrictions during the ÖVP-FPÖ coalition 2017/2019 (Section 11.2). Afterwards follows a diagnosis of whether the quality of democracy and the rule of law is in decay, stagnates or rises in Austria in connection to these restrictions. We argue that these restrictions show elements of populism and are thus interlinked with the phenomenon of democratic decay. This decreases the functionality of Austrian democracy and the rule of law (Section 11.3). In light of this finding, we show what constitutional law has done, can and could do to keep in check, prevent but also remedy such restrictions. We will particularly look at how human rights (including fundamental rights) as guaranteed by the Austrian Constitution and applied and interpreted by the Austrian Constitutional Court can or could provide relief (Section 11.4).
11.2 An Account of (Further) Restrictions of Refugee Rights by the 2017/2019 ÖVP-FPÖ Coalition
The FPÖ is one of the most successful ‘populist radical right parties’Footnote 2 in Western Europe.Footnote 3 While in the early 1990s still on the fringes of the political spectrum, it has gradually become an ‘agenda setter’ or ‘opinion leader’ in the Austrian political system, at least when it comes to migration issues. After a string of electoral victories, it has arrived in the Austrian political mainstream. It has already formed part of the Austrian Government three times since 2000, always in cooperation with the ÖVP. Lately, the FPÖ rose to new heights under its former leader Heinz-Christian Strache when scoring election results, at a size which was previously only achievable for the two traditionally leading Austrian parties, the ÖVP and the Social Democratic Party of Austria (Sozialdemokratische Partei Österreichs, SPÖ). The almost twenty-six per cent of all votes at the 2017 Parliamentary Elections leading to the fourth government participation of the FPÖ in Austrian history, lasted until the so-called ‘Ibiza affair’. This chapter focuses on the ‘lasting output’ in the area of asylum of the third ÖVP-FPÖ Government coalition which endured not even one and a half years.
Restrictive trends have been prevailing in the Austrian immigration and asylum policies for the last decades.Footnote 4 As also suggested in the literature, asylum policy has become – influenced by the FPÖ – increasingly deterring since the 1990s also under ‘Grand Coalitions’ between the ÖVP and the SPÖ; this was justified with the prevention of ‘asylum abuse’.Footnote 5 This accelerated with the sudden rise in the number of asylum seekers in 2015 and 2016 (some of them only transiting) leading to several amendments in the Asylum Act under the ÖVP-SPÖ Government.Footnote 6
The FPÖ has a long history of engaging in anti-migrant rhetoric. Immigration has been the central topic of the FPÖ since Jörg Haider took over the lead of the party in 1986, and even more since Heinz-Christian Strache became head of the party in 2005. This focus was spurred by the high numbers of asylum seekers in 2015 leading to very successful results in the 2016 Presidential Elections and the 2017 Parliamentary Elections.Footnote 7 The topics of immigration and integration are for the FPÖ so dominant that they also feature in other policy fields, e.g., social policy or education policy. In this vein, the 2017 FPÖ election programme contained nativist scatters in almost all topics.Footnote 8
The FPÖ has been influencing the positioning of other political parties including the two big parties of the centre, the ÖVP and the SPÖ, even without participating in governments. ÖVP and SPÖ have gradually taken over the rhetoric and politics of the FPÖ with its anti-immigration slogans since the early 1990s within the framework of the grand coalition.Footnote 9 In recent years, in particular the ‘new’ ÖVP under Sebastian Kurz has increasingly sought to assume the role occupied by the FPÖ. During the 2017 election campaign for the Parliamentary Elections, Kurz stressed several times that he ‘closed the Balkan Route’, criticised the migration policy of Angela Merkel and supported the positions of the Visegrád group in the EU. At one point, the FPÖ even accused Sebastian Kurz of ‘stealing’ their policies and portrayed their leader H C Strache as ‘thought leader’ (Vordenker) to which other parties would finally follow suit.Footnote 10 With this convergence of their agendas, Kurz’ ÖVP and Strache’s FPÖ formed a government coalition (2017–2019). In the Parliamentary Elections of October 2017, the ÖVP (Liste Kurz) succeeded with a very restrictive stance against refugees and asylum seekers outpacing the FPÖ.Footnote 11 By entering into a coalition with the FPÖ, issues of radical right parties (e.g., national identity, abuse of the welfare state, immigration and security) were legitimised.Footnote 12
In contrast to previous ÖVP-FPÖ coalitions, the content and wording of the 2017–2022 Government Programme showed a considerable incorporation of FPÖ positions,Footnote 13 and a new focus was placed on the ‘extremely restrictive exclusionary treatment’ of asylum seekers, beneficiaries of international protection and foreign nationals in general.Footnote 14 Moreover, for the very first time the FPÖ was responsible for its central topics including asylum by receiving departments such as the Ministry of the Interior.Footnote 15 Very importantly, there was a ‘better ideological compatibility’ with the coalition partnerFootnote 16 since the ÖVP under Kurz embarked on a course overlapping strongly with the priorities of the FPÖ.Footnote 17
Reactions to the FPÖ participation were in 2017 much ‘softer’ than in 2000, since in 2017 it seemed to be ‘normal’ that a populist radical right party participated in a European government. In the public opinion the ÖVP-FPÖ coalition did well. A Eurobarometer survey revealed that the confidence in the government after one year since its formation, was at the highest level since mid-2011.Footnote 18
In the following, an overview of the main restrictions in the area of asylum introduced during the 2017/19 government is given.
11.2.1 Asylum as an Issue of ‘Order and Security’
In contrast to previous FPÖ government participations, this Government ProgrammeFootnote 19 clearly showed the handwriting of the FPÖ,Footnote 20 but arguably also of the ‘new ÖVP’ led by Sebastian Kurz. Even though in 2018 the number of asylum applications filed in Austria was the lowest since 2010,Footnote 21 images of large movements of asylum seekers were used, strongly influenced by the experiences of the 2015 so-called refugee crisis. The programme also contained elements allowing nativist interpretations. For example, the preamble stressed that the governing parties would be working solely for Austria’s citizens.Footnote 22 One of the leading principles of the Programme was ‘Heimat’ (home land):
We want to preserve our homeland Austria as a country worth living in with all its cultural advantages. This also includes deciding for ourselves who is allowed to live with us as an immigrant and putting an end to illegal migration.Footnote 23
The Programme claimed that the ‘free and solidary society’ would be ‘increasingly challenged by the mistakes in migration policy of the past years’ and linked the protection of the welfare state from abuse with the stop of ‘illegal’ migration to Austria.Footnote 24 What is more, it connected the will of the Austrian population to the end of ‘illegal’ migration:
Our migration policy should be designed in such a way that it can be supported by the population. We will therefore handle it in such a way that Austria remains a secure, stable state in which people can live in prosperity and social peace. To this end, illegal migration into our country must be stopped and qualified immigration geared to Austria’s needs.Footnote 25
The topic of asylum was primarily located in the chapter about ‘order and security’ and the objective of the asylum policy was defined as the ‘consistent prevention of asylum abuse and creation of a framework for rapid asylum procedures’.Footnote 26 To achieve this objective,Footnote 27 asylum was briefly mentioned as a form of ‘temporary protection’ as opposed to a form of a durable solution in Austria, and as something to be granted only to those who ‘really need it’.Footnote 28 It was stressed that ‘illegal’ migration would ‘usually’ take place by abusing the right to asylum.
11.2.2 Towards Zero Asylum Seekers Arriving in Austria?
The Government Programme stressed that Austria would work towards the development of an EU asylum policy ‘that relieves the burden on Austria and strengthens the returns of economic migrants’.Footnote 29 The reduction of asylum applications was also a goal pursued at the European Council in June 2018, where Chancellor Kurz was in favour of ‘Anlandeplattformen’ (docking platforms) outside Europe,Footnote 30 which implied that persons rescued at sea should be brought to third states instead of to the EU.Footnote 31 This concept was taken over by the EU Council as ‘regional disembarkation platforms’Footnote 32 and further developed in the documents of the European Commission.Footnote 33 In the same vein, during the Ministerial Conference on Security and Migration organised by the Austrian EU Council Presidency in September 2018, the Ministries of the Interior of Italy and Austria backed a proposal for asylum seekers to be processed on board ships rather than brought to shore in Europe.Footnote 34 Building on the European Council Conclusions from June 2018, the Austrian Ministry of the Interior and the Danish Ministry of Immigration and Integration proposed to shift the policy focus in favour of providing protection only to ‘the most vulnerable migrants’ in countries of first reception near conflict areas.Footnote 35 Thus, no asylum seekers should arrive in Europe anymore.
Only a few months later, the Minister of the Interior at that time, Mr. Kickl (FPÖ), announced the objective that ‘basically nobody, […] should be able to file an asylum application in Austria anymore’, since Austria would be surrounded by secure third countries.Footnote 36 At the same time, initial reception centres of asylum seekers (Erstaufnahmezentren) were renamed to ‘departure centres’ (Ausreisezentren), even though the notion ‘Erstaufnahmezentrum’ is a legal notion (e.g., Sec. 1 GVG-Bund 2005). This was meant to signal that asylum seekers were not welcome in Austria and not in need of international protection.Footnote 37
While the ÖVP-FPÖ Government brought forward ideas to externalise protection, there were no initiatives promoting legal avenues for accessing protection in Austria – even though resettlement was mentioned in the Government Programme.Footnote 38 To the contrary, since 2018 Austria does not have any resettlement programme anymore.Footnote 39
The government finally decided to abstain from voting regarding the Global Compact on Migration (2018) even though Austria had previously contributed to its drafting. This raised considerable criticism as regards the role of Austria during the EU presidency as well as during the consultations leading to the adoption of the Compact. While Kurz in 2017 (at that time Minister for Foreign Affairs) was in favour of the Compact, he eventually changed his position, in particular after the Austrian right-wing Identitäre Bewegung had started to mobilise against the Compact and also the FPÖ opposed joining the Compact. It is noteworthy in this context, that the recent ÖVP-Green Party Government will abide by the decision not to join the Compact.Footnote 40 Given its less ambitious content, the Global Compact on Refugees did not meet any comparable resistance.
11.2.3 Further Restrictions in the Name of the Prevention of Asylum Abuse
In accordance with the Government Programme, the ÖVP-FPÖ Government proposed several legislative measures in the field of asylum aiming at the prevention of asylum abuse and achieving more effectiveness. These legislative acts, in particular the 2018 Aliens Law Amendment Act (FrÄG), the 2019 Federal Law on the Establishment of the Federal Agency for Care and Support Services, and the 2019 Social Assistance Act led to the restriction of the rights of asylum seekers and beneficiaries of international protection.
Apart from new legislative initiatives, policy implementation focused – as also visible in the Government Programme – on the withdrawal of protection status and returns. The number of first instance proceedings to revoke protection status quadrupled between 2017 and 2018,Footnote 41 even though in much fewer cases protection status was actually revoked. Forced removals increased in 2018 by forty-seven per cent compared to 2017.Footnote 42
With the 2018 Aliens Law Amendment Act (FrÄG 2018)Footnote 43 the trend to ‘prevent abuse of asylum’ and ‘increase the efficiency of asylum and aliens law procedures’ continued. Measures interfering with the human rights of asylum seekers were undertaken. These included the authorisation of public security bodies to search asylum seekers and seize cash of up to EUR 840.00 per person to contribute to the basic care costs; the authorization to seize data carriers such as mobile phones and to evaluate the data stored on them in case of doubt in relation to identity or flight route;Footnote 44 and further restrictions with regard to freedom of movement of asylum seekers.Footnote 45 The actual necessity and proportionality of these measures in relation to the (controversial) objective of countering asylum abuse was not clarified.Footnote 46 For this reason, the UNHCR criticized the 2018 FrÄG by noting that the law conveyed ‘the broad impression that the vast majority of asylum seekers submit an asylum application that has no connection with the granting of protection’ and that a general danger would come from asylum seekers. The UNHCR also added that the measures – imposing a number of additional tasks on the competent authorities – did not appear to be suitable for achieving the objective of increased efficiency.Footnote 47
The government 2017/19 also made the already difficult access to the labour market for asylum seekersFootnote 48 even more cumbersome by abolishing access to apprenticeship schemes.Footnote 49
Finally, while not mentioned in the Government Programme, in 2019 the former FPÖ Minister of the Interior Kickl planned detention for potentially dangerous asylum seekers (a so-called preventive or security detention) without criminal offence; it was to be decided by the authority under the Ministry of the Interior after a risk analysis with judicial review only ex post.Footnote 50 Chancellor Kurz supported this plan and the government even agreed on the cornerstones of such ‘security detention’.Footnote 51 However, a necessary amendment of the Federal Constitutional Act on the Protection of Personal LibertyFootnote 52 would have required a two-thirds majority in the Parliament. Soon after the agreement on the cornerstones, the ‘Ibizagate’ – which finally led to the dissolution of the government – became public.
11.2.4 Abolishment of Independent Legal Assistance for Asylum Seekers
Despite sharp criticism by UNHCR,Footnote 53 NGOs,Footnote 54 academics,Footnote 55 and OHCHR,Footnote 56 the ‘Law on the establishment of a Federal Agency for Care and Support Services (BBU-G)’Footnote 57 was adopted in May 2019, gaining majority solely through the votes of ÖVP and FPÖ members of the National Assembly. The law abolished independent legal advice by NGOs. This idea stemmed from the FPÖ that had already accused NGOs earlier of ‘greed for profit’ and to be part of the ‘asylum industry’.Footnote 58
The new agency, owned by the Federal Government, which inter alia provides legal assistance in asylum and return procedures since the beginning of 2021, is subordinated to the Ministry of Interior, which is also responsible for the first instance asylum authority. The establishment of the agency was considered necessary for countering the strong dependence of legal assistance on external service providers. The Agency was also viewed as necessary for optimisation of costs and quality assurance.Footnote 59 While the exclusion of civil society from legal assistance in asylum and return procedures in itself already constitutes a considerable cut, it is questionable whether the legal advice provided by the Agency can be independent and impartial.
Although, according to the BBU-G, legal advisors must be independent and not bound by instructions, a closer look reveals that these requirements are compromised by the primary goals of the BBU-G and the organisational design of the Agency. The Federal Minister of the Interior, which is to exercise shareholder rights on behalf of the Federation as a hundred-per-cent owner of the Agency, will have considerable influence on the work of the Agency. The Minister also has an internal right to issue instructions, affecting all management decisions, and is – in support of his management and auditing rights – entitled to a comprehensive right to information. This influence raises serious concerns with regard to the right to an effective remedy and seems to conflict with the provisions of the EU Procedures Directive.Footnote 60 It is questionable whether legal assistance by the Agency can be independent and impartial since the Ministry of the Interior is the authority that is also responsible for the first instance of the asylum procedure. Even assuming that the substantive activities of legal advisors could take place without direct influence from the Minister, the proposed constellation is prone to indirectly influence the motives of legal advisors and to create an appearance of bias and inequality of arms.Footnote 61
The Minister of Justice of the subsequent ÖVP-Green Party Government, Green Party member Alma Zadić that took office in 2020, has tried to implement the law in such a way that civil society can still provide input to the work of the Agency, for example, by appointing a former NGO person as head of a newly introduced department for legal advice, installing a quality advisory board, or staffing the supervisory board of the BBU GmbH also by external experts in addition to representatives of the ministries.Footnote 62 Still, these efforts have not remedied the weaknesses mentioned above.
11.2.5 Restrictions for Beneficiaries of International Protection
Legislative amendments initiated by the ÖVP-FPÖ Government hampered the integration of recognised refugees by impeding access to citizenship and cutting social assistance for those with insufficient command of German or English. In particular, the 2018 Aliens Law Amendment Act (FrÄG 2018) increased the minimum duration of lawful and uninterrupted residence for the granting of citizenship to recognised refugees (from six to ten years).Footnote 63 Therefore, recognised refugees are no longer granted more favourable treatment than other foreign nationals.Footnote 64 Surprisingly, the explanatory notes to the draft billFootnote 65 considered this change to be in compliance with Article 34 of the Refugee Convention that, actually, demands facilitation of naturalisation of refugees as far as possible. Many stakeholders including UNHCR, however, saw the tension.Footnote 66
The ÖVP-FPÖ Government introduced a new Basic Law on Social Assistance,Footnote 67 entering into force in June 2019, that made the full amount of social assistance for recognised refugees dependent on a certain level of German or English skills. More specifically, at least thirty-five per cent of the benefit was made dependent on employability at the labour market; such employability could be only assumed if the person has German level B1 or English level C1.Footnote 68 However, in December 2019, the Austrian Constitutional Court ruled that this provision was contrary to the constitutional principle of equality.Footnote 69
In this context, it must be also noted that the ÖVP-FPÖ Government restricted access to German language courses. The 2018 FrÄG abolished the entitlement of certain asylum seekers (those admitted to the asylum procedure and for whom there is a very high probability of being granted international protection) to German language courses. The legal provision containing the entitlement of asylum seekers to German language courses had entered into force only in 2018.Footnote 70 In addition, language courses beyond A2 level offered by the Labour Market Service (AMS) to beneficiaries of international protection, were reduced considerably.Footnote 71
Under the new Basic Law on Social Assistance, beneficiaries of subsidiary protection can only be granted ‘core social assistance benefits which do not exceed the level of basic care’.Footnote 72 The Austrian Constitutional Court did not regard this limitation as unconstitutional.Footnote 73
11.3 The Confluence and Interrelation of Populism and the Restriction of Refugee Rights in Austria: Is Democracy in Decay in Austria?
11.3.1 Are We Witnessing Populism in Austrian Politics?
While the rule of law and democracy crisis is among the most important issues of (European) constitutionalism and democracy studies in the early twenty-first century, the numerous studies analysing this crisis have led to a rapidly growing body of literature usually focusing on populism. By now libraries can be filled with studies on populism and an overview of the literature becomes difficult to oversee.Footnote 74 Jan-Werner Müller, for instance, prominently conceives of populism as ‘a moralized form of anti-pluralism’.Footnote 75 According to his definition, the decisive claim of populists is to be the true representatives of the people, which even goes so far as populists themselves, in an anti-institutional manner, claiming that it is them and only them who represent the people. Thereby populists appeal to a ‘unity’ and ‘community’, which constructs the ‘other’ as an enemy. This ‘othering’ aims to exclude, among others, asylum seekers. Wojciech Sadurski goes beyond such a discourse-related understanding of populist politics and identifies populism with actions. Thereby he also includes ‘hostility to institutional pluralism’ in his understanding of populism.Footnote 76
We will refer to populism here broadly speaking as a phenomenon constituting an important challenge to discursive and institutional pluralism. In so doing, this contribution identifies, among several other important criteria for the current misery, also the danger represented by political lies and voter manipulation as a key issue and problem.Footnote 77 Thereby it becomes clear that ‘populists’ do not actually care for the interest of the people. Rather, they use techniques in order to gain their support other than through sheer force. Elsewhere, one of us has referred to this by labelling such politicians ‘cuckoo politicians’.Footnote 78
Even though a large-scale diagnosis cannot be provided within the frame of this contribution, Austrian politics are marked – at least to some extent – by populism. Especially the restriction of human rights as described in Section II is an important instance of populism. Generally speaking, the ÖVP-FPÖ Government coalition made integration of beneficiaries of international protection very difficult if not impossible. At the same time, social benefits were made dependent upon integration (language skills at a certain level). Portraying refugees generally as abusers of the system and unwilling to integrate and linking them broadly speaking to irregular migration and criminal behaviour while at the same time making access to the labour market and language courses difficult, is the work of populists. Refugees were portrayed as ‘the others’, constituting a security problem. Blurring the legal concepts of asylum and migration and ignoring international and EU legal obligations in particular in areas of asylum and human rights, disrespects legal guarantees. The ÖVP-FPÖ Government justified interferences in the human rights of asylum seekers with new measures and legislative acts as a ‘prevention of asylum abuse’. This is populist propaganda, especially because such claims were lacking any empirical evidence. Finally, civil society, the media, as well as human rights activists and to some extent even the prestigious Austrian Constitutional Court, were verbally attacked in particular by the FPÖ, which shows a clear disrespect for important pillars of institutional pluralism. The coalition partner ÖVP has not firmly opposed this conduct, which entails ‘complicity’ in populism.
The given examples also indicate a common link between the restriction of refugee rights and democracy which is also related to discursive and institutional pluralism. Human rights and democracy are mutually dependent. It is not possible to have rule of law guaranteed without democracy. Nor can we have democracy without the rule of law.Footnote 79 Precisely therein lies the conceptual relationship between the restriction of refugee rights and democracy. Conceiving of democracy without human rights makes little sense. The right to vote, bluntly speaking, is of little value, if basic human rights such as freedom of information and freedom of press are absent. This holds also true the other way round. The rule of law and basic human rights are not sustainable without democracy, as political restrictions of such rights might not face protest at the ballot box. Also, historically, democracy and human rights have co-evolved. Their coinciding is not a mere historical coincidence. If the democratic legal culture erodes, human rights thus will suffer too. Many dictatorships have and do still show that they disfavour individual rights. Also, the other way round it is hard to secure human rights if democratic control is missing.
This is particularly troublesome for refugee rights, because refugees usually lack democratic rights such as the right to vote (in the country of refuge). Hence, if governments limit the rights of refugees, refugees themselves cannot express their protest at the ballot box. They have to rely on ‘altruistic support’ from voters which are not directly concerned by the rights restriction. Precisely a lack of concern among voters for the restriction of refugee rights can be exploited by populist parties like the FPÖ. Additionally, this is unlikely to be counteracted by mainstream parties like the ÖVP since they have nothing to gain and much to lose if they would be seen as ‘altruistically’ refugee-friendly. This is what causes the (informal) elements of democracy to crumble and lead to – or fail to prevent – further restrictions of refugee rights. Limiting refugee rights, however, is still a restriction of human rights, and thus also a contribution to the deterioration of the balance between democracy and human rights. In such a climate, radical ideas by populist right-wing parties like those of the FPÖ are more likely to be picked up by other parties such as the ÖVP. In a climate where limitations of human rights are part of the political game, more moderate parties like the ÖVP also become more radical. This might even work if ‘mainstream’ political parties ‘only’ co-opt restrictive asylum policies to ‘cut off’ support for more radical populist right-wing parties like the FPÖ. This displays an indirect link between populism and restrictive asylum policies which is also connected to the question as to whether such populist elements also imply democratic decay.Footnote 80
11.3.2 Democratic Decay in Austria?
Democratic decay is ‘the incremental degradation of the structures and substance of liberal constitutional democracy’.Footnote 81 Importantly such decay must not be understood in an isolated fashion, for if this would be the case, this might create the impression of a ‘connotation of a degradation which is slow and almost impersonal, occurring without a plan – a connotation certainly not giving justice to energy, enthusiasm and design.’Footnote 82 Another caveat is that decay implies a temporal component. Similarly, as it is impossible to engage in conclusions on climate change by simply looking at the weather yesterday and today, or by saying that last year it was colder than this year, and thus, climate change is not happening, it is also misleading to say that democracy in Austria is rising as the current government constituted by the refurbished ÖVP and the Green Party is ‘more democratic’ than the ÖVP-FPÖ coalition. Starting from a specific point in time and a given quality of democracy, decay points at a negative evolution of democracy in relation to the starting point.
However, to what extent do the above-described restrictions of refugee rights represent a form of democratic decay in populist times? Instead of identifying a specific point in time as the heyday of Austrian democracy, the prior identification of elements of populism points to some, isolated, but nevertheless important cuts into the blueprint of liberal democracy which is generally present in Austria.Footnote 83
Hence, after having made transparent how populism is understood in this contribution and the analysis whether elements in Austria are present, it would be nevertheless implausible to conclude that democracy is on the rise in Austria. Whether we witness democratic decay in Austria also depends on the conceptual understanding of democracy.Footnote 84 This contribution cautiously floats the hypothesis that indeed some incidents surely are worrisome from the perspective of liberal democracy. The restriction of human rights of refugees is a cut into what is at the very core of liberal democracy because human rights and the rule of law as well as democracy are interconnected. Moreover, these examples constitute linkages between populism and democratic decay.
Against the measure of a well-functioning democracy, we can thus say that the restrictions of refugee rights are cuts into Austrian liberal democracy. This is not a negligible by-product or a passive development without agents. Rather, there is a connection between populism that causes democratic decay also by significantly restricting refugee rights. The responsible agents for these developments are populistic politicians. However, those responsible are not only populistic politicians, but also the people. Surveys show that twenty-two per cent in Austria held in 2019 that ‘Austria would be in need of a strong leader which must not rely on parliament or elections’Footnote 85 and in 2018 forty-three per cent generally wished for a ‘strong leader’.Footnote 86
11.4 Legal Resilience: The Possibilities and Limits of Constitutional Law to Keep in Check, Prevent But Also Remedy the Restriction of Refugee Rights, Populists and Democratic Decay
Finally, this contribution asks what Austrian (constitutional) law can do to prevent democratic decay and populism in general, as well as the restriction of refugee rights more specifically.Footnote 87 At first sight, Austrian (constitutional) law deeply influenced by Kelsenian positivism, seems to be rather toothless due to its strong neutrality regarding politics. Whatever content a specific law has, if the two-thirds-majority in parliament is ensured, even constitutional law can be amended or created.Footnote 88 This is potentially problematic as exemplified by the former Minister of the Interior, Mr. Kickl, who argued that it is the law which must bow to politics, and not the other way round.Footnote 89 However, at a second glance there are some tools provided by constitutional law which might offer some relief, and thereby strengthen the democratic compass.Footnote 90 An effective tool of the Austrian Constitution is that even constitutional law must be in line with the most important constitutional principles that are of the highest rank in the Austrian Constitution. The Austrian Constitutional Court guards these principles which include – among other principles – also a democratic principle, human rights and the rule of law and can declare constitutional laws unconstitutional if they violate these principles.Footnote 91
Human rights are themselves another important element of legal resilience, which are also anchored in the Austrian Constitution. Apart from the State Basic Law on the protection of the rights of citizens that contains traditional civil liberties,Footnote 92 it is in particular the European Convention on Human Rights (ECHR) that constitutes ‘the main, constitutionalised source of fundamental rights protection’.Footnote 93 Other rights in the Austrian Constitution are, for example, the right to equality in Article 7 Federal Constitutional Law (B-VG);Footnote 94 the rights in other international treaties adopted by Austria on a constitutional level (e.g., the International Convention on the Elimination of All Forms of Racial Discrimination)Footnote 95 or implemented through special constitutional acts (e.g., the Convention on the Rights of the Child),Footnote 96 and the constitutional rights in peace treaties.Footnote 97 During the past decade, the EU Charter of Fundamental Rights (CFR) has increasingly become important in the Austrian human rights system. In 2012, the Constitutional Court ruled that the rights in the CFR can be asserted before the Court as constitutionally guaranteed rights.Footnote 98 In particular, in the area of asylum the Charter plays an important role.Footnote 99 Given that asylum procedures do not fall within the scope of application of the Article 6 ECHR, provisions of the CFR such as Article 47, have been increasingly invoked and applied in the asylum procedure.
The Constitutional Court ‘reads the relevant provisions from the different instruments together, to provide a comprehensive protection’.Footnote 100 In addition, human rights and the rule of law also pertain to the above-mentioned core principles of the Austrian Constitution. The Constitutional Court might, thus, declare even a constitutional act that aims at diminishing or even abolishing specific human rights, unconstitutional. Only by a popular referendum and a so-called total revision of the Austrian Constitution, could human rights be abolished.Footnote 101 This protection against considerably amending or abolishing human rights also by potential acts of parliament is an important instrument of legal resilience against further, admittedly large-scale, restrictions of refugee rights.
Arguably, also an Austrian withdrawal from the ECHR would only be possible after such a popular referendum (in addition to a two-thirds majority in parliament) due to the constitutional rank and the high importance of the ECHR in Austria. This is an important contributing factor of legal resilience of the Austrian Constitution. It protects against attacks by members of the former ÖVP-FPÖ Government like the former Minister of the Interior (FPÖ) who questioned the ECHR indirectly in line with the FPÖ election programme 2017 that contained possible withdrawal from the ECHR and its replacement by an Austrian Human Rights Convention (which should protect also the ‘home land rights of Austrians’).Footnote 102 The same minister devalued human rights guarantees at national, EU and international level as ‘strange legal constructs’ which would be obstacles to do ‘what is necessary’.Footnote 103
The Constitutional Court exercises important functions that may serve to keep populist behaviour and democratic decay in check. Such functions include judicial review of laws and regulations, review of rulings by administrative tribunals and the verification of elections.Footnote 104 With regard to the cutting of social assistance for recognised refugees, for instance, the Constitutional Court declared these norms initiated by the ÖVP-FPÖ Government as unconstitutional.Footnote 105 Still, it seems to be only the tip of an iceberg which the Court can address according to its mandate.
In line with the above-mentioned importance of informal democratic legal culture and human rights support, civil society also plays an important role to keep elements of populism in check. This is visible in petitions such as the petition relating to access to the labour market of asylum seekers or in relation to the Global Compact on Migration. The role of the civil society is also visible in the statements submitted in the context of the parliamentary procedure or in protests against the renaming of first reception centres into return centres.Footnote 106 Still, there is no legal obligation to take civil society’s petitions, protests, etc. into account. The ÖVP-FPÖ Government also tried to reduce the influence of civil society in the asylum procedure by introducing the BBU-G. Hence, there is not one single strategy or tool of resilience. Rather, the network of formal and informal rules of the democratic legal culture and safeguards of human rights are needed in order to prevent democratic decay and populist propaganda.
11.5 Conclusion
The open attacks against human rights, the rule of law and also attacks on parts of civil society by members of the government, were the innovations brought with the 2017/2019 ÖVP-FPÖ Government.Footnote 107 The legacy of the ÖVP-FPÖ Government has a dark and long shadow eclipsing also the coalition government by the ÖVP and the Green Party which has been in office since January 2020.Footnote 108 During the first year of the ÖVP Green Party Government, in particular the refusal of the ÖVP to accept even a single child from the refugee camps on the Greek islands, not even after the catastrophe in Moria, underlines this legacy. ‘Security detention’ now features in the Government Programme, albeit the programme stresses that it must be in conformity with the Constitution, the ECHR and EU law.Footnote 109 The decision not to join the Global Compact on Migration and the abolition of the independent legal assistance of asylum seekers are maintained. Looking more broadly at the Government Programme, externalisation tendencies in the asylum policy and the protection of external borders prevail too.
While the FPÖ was a trendsetter in othering refugees and restricting their rights, it is hard to say whether elements of populism represented by the FPÖ have actually led to more restrictive refugee laws and policies, or whether the othering of refugees has contributed to the success of the FPÖ in the first place. Restrictions were in place even before the FPÖ rose to power. Yet, it is undisputed that the politics of the FPÖ, which were largely also adopted and continued by the ÖVP, brought further restrictions. At least in the Austrian case a clearcut, black or white answer to the question as to whether the restriction of refugee rights accelerates democratic decay or whether it is the other way round, cannot be provided. Both phenomena are more likely part of a symbiotic and constantly amplifying process. The more populists dominate politics, the more they will restrict refugee rights. Further restricting refugee rights might easily lead to more support for populists. The more populists have to say, the worse this is for democracy. A bad state of democracy, in turn, is a more fruitful ground for populism. Hence, populism, the restriction of refugee rights and democratic decay is a downward spiral that is not easily hindered. Yet, a strong legal culture and support for the constitution are vital. In Austria this support is ensured by the most fundamental principles of constitutional law that can only be derogated by a public referendum according to Article 44 (3) of the Austrian Constitution. This provides a strong arsenal for resilience. Further specific regulations, such as a strong commitment to human rights and a robust safeguarding of the democratic process are supportive too. This, however, is not given. The Austrian Constitutional Court, constitutional scholars and politicians as well as civil society must work to support liberal democracy and its values.
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