The Framework of Criminal Law
Legislation on Bias-motivated Violence
| Bias-motivated Violent Crimes as Specific Offenses | Bias as an Express General Aggravating Factor | Bias as an Aggravating Factor in Specific Common Crimes |
| X |
Bias Types Covered by Provisions on Aggravating Circumstances
| Race/National Origin/Ethnicity | Religion | Sexual Orientation | Gender | Disability | Other |
| X | X |
The Austrian legal system views racial discrimination and violence as “acts deriving from extreme right-wing or National-Socialist ideology”. Therefore, it focuses on subsumed cases under the Prohibition Statute, which bans the National Socialist movement. Racist crimes not linked to right-wing extremism are not covered by the Prohibition Statute.[1]
In its Third Report on Austria, the European Commission against Racism and Intolerance (ECRI) notes that “while it welcomes the determination in countering racist behavior coming from these [extremist] groups, ECRI stresses that such behavior in Austria is not the exclusive resort of these groups and that legislation should be geared towards pursuing all types of racist behavior effectively.”[2]
Bias as an Express General Aggravating Factor
The Criminal Code of Austria contains provisions that expressly enable the xenophobic or racist bias motives of the offender to be taken into account by the courts as an aggravating circumstance when sentencing.
Section 33.5 deals with cases in which the offender acted out of “racist, xenophobic or other particularly reprehensible motives,” considering those motives to be aggravating circumstances that could entail enhanced penalties.[3]
With regard to these provisions, ECRI recommended in particular that official statistics “cover the use made by the courts of Section 33.5 of the Criminal Code.”
While observing at the time the report was written that statistical data on the implementation of Section 33.5 of the Criminal Code are not yet collected, ECRI notes that Austrian authorities said that in following up ECRI’s 2004 recommendation, “they have instructed all public prosecutor’s offices to explicitly report on all offences related to racism and xenophobia (including the application of Section 33.5 of the Criminal Code) in their annual observation report.”[4]
[1] EUMC, RAXEN Report on Austria, 2002, page 22: http://eumc.europa.eu/eumc/material/pub/RAXEN/4/RV/CS-RV-NR-AT.pdf
[2] ECRI, “Third Report on Austria,” adopted on June 25, 2004 and published on February 15, 2005, para. 13.
[3] OSCE/ODIHR, “Austria: Hate Crimes,” Legislationline, http://www.legislationline.org/?tid=218&jid=5&less=false.
[4] ECRI, “Third Report on Austria,” para. 15.