Prohibition of discrimination under administrative penal law: AOB recommendations implemented

For a long time, the Austrian Ombudsman Board (AOB) has been pointing out the inefficient implementation of the prohibition of discrimination based on ethnic origin with regard to access to public places and public services under administrative penal law.

In 2007 and 2011 AOB members jointly determined cases of maladministration as the inconsistent and inefficient application of the prohibition of discrimination as stipulated in art III para 1 clause 3 of the Introductory Act to the Administrative Procedure Acts 1991 (Einführungsgesetz zu den Verwaltungsverfahrensgesetzen 1991, EGVG) did not fulfill Austria’s national commitments and international commitments under Community law regarding the combating of discrimination. In this context the AOB also criticized the restrictive interpretation of the prohibition of discrimination which cannot fulfill the international requirements and the requirements under Community law with respect to the protection against discrimination.

Despite the legally binding prohibition of discrimination denials of access for Turkish men to night clubs or advertisements offering housing or jobs exclusively to Austrians are not being pursued and punished adequately. According to both the AOB and many NGOs this is one of the reasons why - despite the high number of incidents of discrimination - the persons affected very seldom contact the authorities and why the few proceedings are often dismissed without any penalties.

Already twice, the AOB submitted a recommendation to the Federal Government requesting it to ensure an effective and uniform enforcement of the prohibition of discrimination based on ethnic origin.

An amendment of art III para 1 clause 3 of the Introductory Act to the Administrative Procedure Acts 1991will enter into force on 1 September 2012 taking into consideration the AOB recommendations. This should result into a more efficient prosecution and punishment of discriminatory treatment (Federal Law Gazette I [BGBl] No. 50/2012). In future, the persons affected do not have to prove that the unequal treatment occurred solely due to his/her ethnic origin.

The AOB hopes that this amendment in connection with other measures such as training for staff involved in administrative penal proceedings and information campaigns will contribute essentially to the improvement of the protection against discrimination with regard to access to public places and public services.