Dissolution of an Islamic Association as a Result of the Terrorist Attack of 2 November 2020 Suspended

Dr. Georg Rihs is pleased about another successful intervention in a current religious law case: due to the representation in the appeal proceedings, the Vienna Provincial Police Directorate as association authority revised the dissolution of the Islamic “Association for the Promotion of Islamic Culture”.
The success solidifies the firm’s reputation in complex administrative and religious law proceedings and in connection with proceedings under the Islam Act 2015.

As a result of the terrorist attack on 2.11.2021, the Vienna Police Directorate, as the association authority, dissolved two Islamic associations with immediate effect by means of a mandate notice without any preceding investigative proceedings.
The association “Verein zur Förderung der islamischen Kultur” (Association for the Promotion of Islamic Culture), which operates the Tewhid Mosque in 1120 Vienna, Murlingengasse 61, was one of these two associations. The Vienna Regional Police Directorate justified the immediate dissolution under the Associations Act by stating that the assassin had visited the mosque in 1120 Vienna before the attack.

The dissolution of the association also meant that the Islamic Religious Community of Austria (IGGÖ) withdrew the mosque’s legal status as a “mosque community” under intra-religious law.
The association’s officials filed a timely appeal against the decision to dissolve the association. This appeal did not have a suspensive effect. This means that the association was deprived of its legal personality for the duration of the proceedings.

The Vienna Provincial Police Directorate now had to revoke the mandate notice after a thorough examination of the facts. It determined that no persons with Islamist extremist ideology held functions in the association or were active in a supportive capacity for the mosque. At no time did the association actively call on individuals to participate in armed jihad in crisis areas or encourage them to do so. According to the findings of the association’s authorities, the sermons delivered at the mosque’s Friday services did not glorify jihad.

During the proceedings, it emerged that neither the BVT nor the LVT Vienna had any reliable evidence or reports that would have justified the measure of dissolving the association. Although the Vienna Regional Police Directorate, as the authority responsible for the association, invited the BVT and the LVT Vienna to submit evidence later in the proceedings – this evidence should have been available at the time of the dissolution of the legal entity – neither institution was able to provide any comprehensible justification for the dissolution. The Regional Police Directorate also critically noted that the BVT and the LVT Vienna – despite repeated requests – were unable to provide any information on alleged violations of criminal law by association bodies.

The association actively cooperated in this investigation and submitted all sermons held at church services in 2013 and 2020 in German translation.
The withdrawal of the dissolution of the association was the necessary consequence of the investigative proceedings of the association authority.

The association has thus been rehabilitated. It now again enjoys full legal personality under the Law on Associations.
After a relatively long procedure, the association has thus been restored to its legal status. It remains questionable and problematic that the proceedings took more than four months, although from the beginning there were no facts that would have justified dissolution. The association has suffered financial damage as a result of the (now proven) illegal dissolution with immediate effect.

It remains to be seen whether the mosque will be reinstated as a mosque community by the Islamic Religious Community.

Also Austrian press (daily newspaper Der Standard) has covered the subject-matter (Link).

Residence Permit „Art 50 EUV“

The United Kingdom’s withdrawal from the European Union (known as “BREXIT”) and thus also from the EU’s internal market and customs union brings with it numerous innovations. As a result, the right of residence for British nationals and their family members has been largely changed. As of 1st January 2021, the United Kingdom is considered a third country from the perspective of the EU. The Austrian legislator has therefore created a separate residence permit (“Residence Permit Art 50 TEU”) for British citizens and their family members residing in Austria (see amendment to the Austrian Residence and Settlement Act, Federal Gazette I 56/2018.

The status of British citizens and their (close) family members is ruled by the so called „Brexit-Implementation-Regulation“ published by the Austrian Minister of Interior, Federal Gazette II 604/2020.

British citizens and their (close) family members from third countries may now apply for a „residence permit according to Art 50 Treaty of the European Union“.

This residence permit is intended to ensure that British citizens and their close relatives have the opportunity to live, work and study in Austria.

The requirements for obtaining this residence permit – as has already been the case for EU citizens – are the following:

  • gainful employment or sufficient financial means to finance a stay in Austria for oneself and one’s family members without depending on social welfare benefits or public allowances, as well as
  • comprehensive health insurance covering all possible risks in Austria.

German language skills are not a required for the application for the residence title “Article 50 EUV”.

Since January 2021, the application is possible until the end of December 2021. Thus, there is a sufficient time window for the application. The residence permit “Article 50 EUV” is issued in credit card format and is generally valid for 5 years. Of course, the acquisition of a permanent right of residence is still possible. Persons who have already acquired a permanent right of residence in Austria are granted the residence title “Article 50 EUV” for 10 years.

An initial application has to be made in person at the competent authority. An application with a valid residence permit in Austria presently (due to COVID19) has to be submitted via mail. In Vienna, the application has to be submitted to the Municipal Department 35 (MA35). The personal application is to ensure that the identity of the respective person is guaranteed.

Due to the current COVID19 restrictions, appointments with the immigration office must be reserved online.

As experts in immigration law, we have assisted many clients in obtaining residence permits according to Art 50 TEU.
Feel free to contact us if you would like us to assist you with your “Article 50” residence permit application.

Suspension of ban of Islamic headscarf by the Austrian Constitutional Court (§ 43a Austrian School Education Act)

With gread joy we announce that we successfully represented three afflicted girls and their parents in proceedings to suspend an unconstitutional legistlative act before the Austrian Constitutional Court.
The Constitutional Court has taken its decision and formally announced the conclusions today, November 11, 2020. The decision suspends the ban of the Islamic headscarf for girls aged 6 to 10 years of age. The announcement was broadcast life on the website of the constitutional court, www.vfgh.at.

The ban explicitly aimed at Muslim girls. In the parliamentary reports, the legislator explained that the ban should not be applicable for dresscodes of other religions (like Jews, Sikhs).

The Austrian Constitutional Court has stopped a grave infringement on the freedom of religion and expression. It ruled that the girls’ and parent’s religious freedom were disrespected by this legislative act.

The Constitutional Court suspended the unconstitutional act immediately, i.e. without granting the legislator a period for “reparation”.

We celebrate this victory of human rights and liberal democracy together with our clients!

Interview with Journalist and Author Kemal Rijken about the Austrian Islam Act 2015 (Islamgesetz 2015)

Last week we had the opportunity to share our expertise in religious law: The journalist and author Kemal Rijken (www.kemalrijken.nl) from the Netherlands visited us at our office to talk with us about the Austrian Islam Act 2015, the current legal situation and current legal policy problems. He is working on a comprehensive article for the Dutch weekly magazine “De Groene Amsterdammer” (www.groene.nl).We are already looking forward to the article!

Long Duration of Proceedings in NAG Proceedings: Effective Protection?

Rihs: Effective Protection Against Undue Protraction of Proceedings [by Authorities and Administrative Courts] under the Settlement and Residence Act (NAG)? migraLex 2020, 42. (PDF-Version)

Time is money: Unfortunately, unpleasant delays occur every now and then, particularly in proceedings for residence permits under the Settlement and Residence Act (NAG). Although the general statutory decision period of 6 months and – in cases like student visas or red-white-red cards – even shorter decision periods apply to individual residence titles, procedures for grant of a residence title often take longer than the statutory period.

In a scholarly article written for the legal journal migraLex, Dr. Georg Rihs examines the question of the extent to which the protection against undue protraction of proceedings in Austrian General Administrative Procedure Law meets the requirements for procedures under the Settlement and Residence Act. Especially with regard to the requirements of the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (CFR), the legal design of the protection against protractions and delays caused by an authority’s or court’s inaction is problematic in Austria. The legal remedies provided by the Austrian General Administrative Procedure Law to the administrative courts and requests for the setting of deadlines to the Administrative Court often – even conceptually – do not lead to the desired acceleration of proceedings.

The thorough examination of legal remedies for the enforcement of expeditious proceedings is important for our practical work as lawyers, because legal remedies for protection against undue delays must be used again and again in order to achieve and enforce the objectives of our clients quickly and within the required time.

The article also contains suggestions to the Austrian legislator to remedy defeciencies in the rule of law for the future and avoid practical problems in the enforcement of the law.

[Foto: needpix.com]

Warranty Condominium Ownership

Decision by Vienna District Court for Commercial Matters 26 June 2020, 19 C 123/19 f

Warranty claims successfully enforced for condominium owners’ association against well-known property developers.

After completion of a new building project in 2016, various defects in public parts of the apartment building (damage to the stone floors on the doorways and in the central staircase, expanse approx. 500 m2) were already identified in the takeover protocol. The developer denied any responsibility and argued that the cleaning company contracted by the property management company for the ongoing cleaning of the aisles had caused the damage.

We filed the warranty claim in good time before the warranty period expired. With the ruling of the Vienna District Court for Commercial Matters of 26.06.2020, 19 C 123/19f, the Court granted our action as admissible and well-founded. The property developer was ordered to carry out a complete and comprehensive correction of the defects according to clear specifications at its own expense and to reimburse the costs of the proceedings.

The property developer has waived its right to appeal.

The judgment of the Vienna District Court for Commercial Matters is final and enforceable.

The court considered a majority resolution of the condominium association to be a condition for admissibility of the action. It was necessary to comply with the respective requirements of the Austrian Condominium Act (Wohnungseigentumsgesetz, WEG) for the decision-making process of the condominium owners’ association in the context of the civil proceedings. Thanks to our timely and conscientious intervention, we succeeded in safeguarding the condominium owners’ association’s warranty claims.

It is advisable to consult a lawyer in this matter as well and take the necessary steps well before time-bar of the warranty claims.

It was decisive for the success of the proceedings that we

  • took legal action in good time before the expiry of the warranty period,
  • were able to provide good evidence of the defects that immediately after the hand-over of the public parts of the apartment house,
  • obtained the consent of the condominium owners in accordance with the procedure provided for this purpose in the WEG.

We are pleased that we were able to help our clients to defend their rights. Through our successful intervention we have avoided that our clients have to bear the financial burden of correction of the constructive defects and constantly increased maintenance costs.

Please contact us if you, as a condominium owner or condominium owners’ association, would like to enforce warranty claims against the property developer due to constructive defects of public parts in apartment houses.

[Foto: Wikipedia, Werkfrei]

job advertisement

We are a powerful and legally experienced unit to enforce the legal interests of our diverse clientele. For ten years we have successfully represented numerous domestic and foreign clients.
Our focus is on public law and we regularly work with public authorities, administrative courts and the courts of public law.
We place the highest demands on the quality of our services and spare no effort to meet our clients’ expectations.

We are looking for a part-time

experienced legal assistant
20 hrs/week

We are looking for …

  • comprehensive support of the legal team and the office manager (core hours: Monday to Thursday from 13:00 to 18:00 hrs, possibility to increase to 40 hours)
  • mail processing, telephone and appointment management as well as communication with clients in German and English
  • writing after dictation with the help of Dragon Naturally Speaking
  • layout and editing (proofreading) of typesets
  • file and data maintenance, postal channels

We expect …

  • a completed education and, if possible, (relevant) professional experience in the legal profession
  • sound computer skills (MS-Office, if possible experience with a lawyer)
  • excellent knowledge of German (spoken and written), very good knowledge of English
  • accurate and responsible way of working
  • Teamwork and communication skills

We offer …

  • independent task within the team
  • centrally located, easily accessible office (Stephansplatz), representative office premises with modern office infrastructure
  • excellent and familiar working atmosphere
  • Minimum salary according to the collective agreement without previous periods of service € 1,590 (also for 20 hours per week), overpayment according to professional experience and qualification possible
  • secure employment with the possibility of upgrading to full-time employment

If you are interested in this challenging position, please send your detailed application to

karriere@rihs.law

Erich Rihs, BA
1010 Vienna, Kramergasse 9/13
www.rihs.law

[Photo: Wikimedia Commons]

short holiday

In the first week of August (August 3, 2020 to August 10, 2020), the office operation is restricted due to holidays.

For important and urgent matters, we kindly ask you to send us an email.

We are looking forward to serving you again from August 11, 2020 onwards with our usual commitment.

[Photo: Wikipedia, unedited]

COVID19-Measures: Compensation Claims against the Austrian Federal State?

The administrative COVID19-measures implemented by the Austrian Minister of Health (BGBl II 96/2020) severely affect commercial activities in Austria and may justify compensation claims by enterprises operating in Austria.

Infringement of Constitutional Right of Commercial Freedom by COVID19-measures – Assessment by Austrian Constitutional Court

Trade companies affected by the Directive ref. temporary measures for the prevention of spreading of COVID-19, Federal Gazette II 96/2020, in its consolidated version, e.g. by the shutdown of their shops and sales premises, are immediately afflicted by this directive for the duration of its legal force. The directive infringes on their constitutional right of free commercial activity and equality. As long as this directive is in force, they may challenge the directive at the Austrian Constitutional Court („Verfassungsgerichtshof“, short: „VfGH“) via individual application of annulment. The legal requirements for such an application are the following:

  • the applying company has to proof their immediate concern and affliction,
  • the directive must be legally valid and in force at the time of the Constitutional Court’s hearing of the case following the appeal, and
  • no other legal remedy exists to enforce the legal consequences of the directive.

Especially the second requirement (validity at the time of the decision of the Constitutional Court) is critical. Most likely, the issuing authority of directives on COVID19-measures, i.e. the Minister of Social Affairs, Health Care and Consumer Protection, will suspend the directive as soon as the pressure by the economy has become strong enough.

Proceedings for Annulment of COVID19-Directives before the Austrian Constitutional Court

The Austrian Constitutional Court regularly treats applications for annulment with high priority, hearing cases in one of its next plenary sessions. In this case, this would most likely be in June („summer session“) or September („autumn session“). However, it is unlikely that the Directive ref. temporary measures for the prevention of spreading of COVID19 will still be in force by this time. Only in very exceptional cases the Constitutional Court has ruled on annulment applications and assumed actual and immediate affliction of the applicant restrospectively. The retroactivity would have to be analysed on a case-by-case basis.

Alternatively, an infringement of the constitution by a directive may also be challenged by a civil court on the occasion of a civil court action. The civil court has the competence to adjourn a pending proceeding and request an assessment of an applicable directive by the Austrian Constitutional Court according to Article 89 of the Austrian Constitution („Bundesverfassungsgesetz“, short: „B-VG“). In this instance, the Constitutional Court may also rule on infringements by directives no longer in force. In this specific setting, the Constitution Court assesses directives retroactively for their compliance with the Austrian Constitution.

Civil Court Actions Against the Austrian Federal State for Compensation of Damages due to COVID19-Measures – Concrete Assessment of Applicable Directives

When the constitutional court finds that a directive on COVID19-measures infringed against the Austrian Constitution, a company economically afflicted may file a court action against the Federal State of Austria („Bund“). In a civil court action against the Federal State, the claimant may request the adjournment of the action and assessment by the Constitutional Court according to Art 89 of the Austrian Constitution („B-VG“). In case the court refuses this application, the claimant may enforce the assessment by the Constitutional Court by way of a separate application in appeal proceedings. The claimant has an enforceable right to a legal assessment of the „constitutionality“ of the directive. Once the Constitutional Court rules a directive as unconstitutional, the claimant has to be compensated for the damage.

Recommendation

If your company is afflicted by COVID19-measures and you wish to enforce damage claims against the Austrian Federal State, please contact my office. Our office is regularly involved in cases of administrative economic law, constitutional and commercial law. Further, we also advise and represent in reparation and compensation cases.

We will gladly advise and assist you with the enforcement of your claims as company afflicted by the directive on measures to prevent the spreading of COVID19 by the Austrian Minister of Health!

Please contact us if you wish us to assess the chances of success of a court action!

[Picture: Center for Disease Control and Prevention, public domain]

Austrian citizenship

Facilitations in the award of Austrian citizenship to victims of the Nazi regime and their descendants

The Austrian Parliament has passed an amendment to the Austrian Citizenship Act („Staatsbürgerschaftsgesetz“, short: „StbG“) with the aim of facilitating the award of the Austrian nationality to victims of the Nazi regime and their descendants (BGBl I 96/2019).

So far, only persons directly afflicted by prosecution were able to claim the award of Austrian citizenship. The amendment to the Austrian Citizenship Act extended the facilitated conditions to all „descendants in direct line“ down to the third generation, including the children, grandchildren and grand-grandchildren of the victims, offering them the faculty to (re)gain the Austrian citizenship by „notification“ of the relevant circumstances.

Besides former Austrian citizens and their descendants, also former citizens of successor states of the Austro-Hungarian Empire and stateless persons residing in Austria until 15 May 1955 and their descendants may apply under these facilitated conditions.

Persons within the scope of the new provisions obtain the Austrian citizenship by notification (and procuring evidence in the relevant circumstances).

Many additional requirements applicable for regular proceedings do not apply, especially regarding German language skills, proof of reliable and regular income for a certain time prior to application, a minimum stay in Austria etc.

The amendment provides for a considerable simplification in the proceedings for the award of the Austrian Citizenship and extends these conditions to the descendants of victims of the Nazi regime in Austria. Former Austrian citizens who were forced to flee Austria due to prosecution by the Nazi regime or officials of the so-called „Third Reich“ and their descendants will be given to submit their notification from 1 September 2020 on. The award may be granted under the considerably facilitated conditions and with reduced fees.

In the proceedings, the applicant will have to prove the circumstances of prosecution and forced emigration.

Our office will gladly assist you with the historical research at Austrian authorities and in the official archive to find evidence on these matters.

We frequently assist with requests on the facilitated proceedings for the award of the Austrian citizenship by notification. We can provide good services in preparation of the requisite documentation and correspondence with the Austrian officials and authorities in the proceedings.

Please do not hesitate to contact us and arrange for a consultation to assess your chances of award of the Austrian citizenship as victim of the Nazi regime or descendant.

[Picture: Goodfon]