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Austria: Constitutional Court Clarifies Rules of Procedure Changes during Extraordinary Circumstances

(July 30, 2020) On July 14, 2020, the Austrian Constitutional Court approved changes to its Rules of Procedure, which, among other things, allow for decisions using a written circulation procedure and videoconferencing when extraordinary circumstances are present. The changes clarify a March 2020 amendment to the Constitutional Court Act that was adopted to keep the court functioning when the members are not able to convene in person in a timely manner, such as during the COVID-19 pandemic.

The amendment inserts a new section 19a into the Rules of Procedure which provides that, in extraordinary circumstances, the court may deliberate and adopt decisions using a written circulation procedure or videoconferencing. (Constitutional Court Act § 7, para. 3; Rules of Procedure § 19a.) Under normal circumstances, the presiding judge and at least eight justices generally need to be present to deliberate and make a decision. (Constitutional Court Act § 7, para. 1.) The Constitutional Court is made up of the president of the court, a vice president, 12 additional members, and six alternates. (Constitutional Court Act § 1, para. 1.)

Under the written circulation procedure, the presiding judge sends the written statement of facts and the proposal of the case manager (Referent)—­a member of the court who prepares the draft of the decision—to all members of the court to inquire whether they agree to making a decision using a written circulation procedure. The answer must be received within a week. If nine members agree, the presiding judge again sends the written statement of facts and the proposal of the case manager to all members and requests that they submit their ruling with an explanation. Their rulings and explanations must be sent to an email address designated by the presiding judge within the time frame specified. A decision is adopted if at least eight members participate in the written circulation procedure and the application receives a majority of the votes. (Rules of Procedure § 19a, paras. 2, 3; Constitutional Court Act § 31.)

Deliberations and decisions using means of telecommunications are conducted as follows: The presiding judge sends the statement of facts and the proposal of the case manager to all members of the court with a request that they respond within a week as to whether they agree to remote proceedings. If nine justices agree, the presiding judge sets a date for a deliberation of the case via videoconferencing. (Rules of Procedure § 19a, para. 3.)