United Nations Committee on the Elimination of Racial Discrimination - Concluding Observations
International Convention on
the Elimination of All Forms
of Racial Discrimination
23 October 2012
Committee on the Elimination of Racial Discrimination
Concluding observations on the eighteenth to twentieth periodic reports of Austria, adopted by the Committee at its eighty-first session (6-13 August 2012)
1. The Committee considered the eighteenth to twentieth periodic reports of Austria (CERD/C/AUT/18-20), submitted in one document, at its 2189th and 2190th meetings (CERD/C/SR.2189 and 2190), held on 22 and 23 August 2012. At its 2200th meeting (CERD/C/SR.2200), held on 30 August 2012, it adopted the following concluding observations.
2. The Committee welcomes the timely submission by the State party of its eighteenth to twentieth periodic reports drafted in accordance with the Committee’s guidelines for the preparation of reports. The Committee also welcomes the open dialogue with the delegation of the State party as well as its efforts to provide comprehensive responses and supplementary replies to issues raised by Committee members during the dialogue.
B. Positive aspects
3. The Committee notes with appreciation the various legislative and policy developments which have taken place in the State party since its last report to combat racial discrimination, including:
(a) The amendment to the Employment of Foreigners Act in 2011, repealing section 8 (2) that provided for foreign employees to be dismissed first in the event of redundancy;
(b) The amendments to the Equal Treatment Act and the Federal Act on the Equal Treatment Commission in 2008, raising the amount of damages that can be claimed for human rights violations, and extending the limitation period for cases of harassment from six months to one year;
(c) The adoption of a National Action Plan for Integration and the establishment of an Integration Advisory Committee in 2010;
(d) Various programmes, strategies and other initiatives aimed at raising the awareness of the population with regard to racial discrimination, integration, tolerance and multiculturalism;
(e) The arrangement adopted on the issue of bilingual signage in German and Slovenian in Carinthia.
C. Concerns and recommendations
Statistical data on the composition of the population
4. The Committee recalls its previous recommendation (CERD/C/AUT/CO/17, para. 9) and remains concerned at the absence of comprehensive statistical data on the ethnic composition of its population (art. 2) in the State party’s report.
In accordance with paragraphs 10 to 12 of its revised reporting guidelines (CERD/C/2007/1), the Committee reiterates its previous recommendations (CERD/C/AUT/CO/17, para. 9) that the State party collect disaggregated data, including on the basis of mother tongues used, languages commonly spoken or other indicators of ethnic diversity. The Committee furthermore recommends that such data collection activities and other information derived from targeted surveys be conducted on a voluntary basis, with due respect for the privacy and anonymity of the individuals concerned, and they should endeavour to obtain accurate information on all ethnic groups living in the territory of the State party.
Applicability of the Convention under domestic law
5. While noting that the European Convention for the Protection of Human Rights and Fundamental Freedoms has the status of constitutional law in the State party and that it is directly applicable in domestic courts, as well as bearing in mind that the Federal Constitutional Law of 1973 on the implementation of the Convention has not incorporated the Convention in its entirety into the Austrian domestic legal order, the Committee is concerned at the lack of examples of cases of racial discrimination where the provisions of the Convention have been applied by domestic courts (arts. 2 and 6).
The State party should take all necessary measures to ensure that judges, prosecutors and lawyers have knowledge of the provisions of the Convention to enable them to apply the Convention in relevant cases. It urges the State party to include in its next periodic report specific examples of the application of the Convention by domestic courts and access by individuals to remedies provided for in legislation on violations of rights contained in the Convention.
6. The Committee is concerned that different provisions on the prohibition of racial discrimination are dispersed in many laws, which do not seem to ensure the necessary coherence and consistency (art. 2).
The Committee recommends that the State party harmonize its legislation so as to cover all the provisions of the Convention, taking into account the relevant general recommendations.
7. The Committee notes the constitutional requirement that the Länder must implement the State party’s obligations under the Convention. However, it is concerned that the application of this rule is not uniform in the case of the Convention among the Länder (art. 2).
The Committee reiterates its recommendation that the State party ensure full compliance with the legal, administrative and policy requirements of the implementation of the Convention by its federal provinces.
National human rights institution and policy frameworks
8. While welcoming the measures taken by the State party to broaden the mandate of the Austrian Ombudsman Board (AOB) to act as a national human rights institution and as a national preventive mechanism under Optional Protocol to the Convention against Torture, the Committee is concerned to note that the manner in which members of the AOB are appointed continues to raise issues regarding their independence. The Committee notes that the AOB has not been accredited with “A” status by the International Coordinating Committee (art. 2).
The Committee recommends that the State party ensure that the appointment of members of the AOB fully complies with the Paris Principles as set forth in General Assembly resolution 48/134. The State party should adopt concrete measures to improve the status accorded to the AOB by the International Coordinating Committee under the Paris Principles and to allocate the necessary resources in order to provide the means for fulfilling its mandate.
National Action Plan
9. Recalling its general recommendations No. 28 (2002) on the follow-up to the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and its No. 33 (2009) on follow-up to the Durban Review Conference, the Committee is concerned at the State party’s position that it does not intend to adopt a National Action Plan against Racism as required by the Durban Declaration and Programme of Action which was adopted in September 2001 (art. 2).
The Committee reiterates its previous recommendation (CERD/C/AUT/CO/17 para. 28) and urges the State party to reconsider its decision and to adopt a National Action Plan against Racism in line with the Durban Declaration and Programme of Action. The State party should give effect to the Durban Declaration and Programme of Action adopted in September 2001 by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, taking into account the Outcome Document of the Durban Review Conference, held in Geneva in April 2009, when implementing the Convention in its domestic legal order. The Committee further urges the State party to include in its next periodic report specific information on measures taken to implement the provisions on racism of the Durban Declaration and Programme of Action.
Incitement to racial hatred and violence
10. While welcoming the intention of the State party to withdraw its reservation to article 4 and noting the State party’s efforts to improve legislation proscribing incitement to racist hatred and violence, following the Committee’s previous recommendation (CERD/C/AUT/CO/17, para. 15), such as the amendment to section 283 repealing the mandatory nature of the condition that a possible threat to public safety must exist in order to bring cases under this section, the Committee is concerned that the recent amendment to section 283 of the Criminal Code prohibiting some acts of racial hatred and discrimination, perceivable as such by a “broad public,” may have the effect of rendering such acts of racial hatred and discrimination permissible if the requisite number of individuals needed to perceive the act as constituting an offence under the new provision in the revised law is not met (arts. 2 and 4).
The Committee recommends that the State party revise the scope of section 283 of the Criminal Code to clarify that it effectively proscribes all forms of racial hatred and discrimination as prescribed by article 4 of the Convention.
Right-wing extremism and neo-Nazism
11. While noting the State party’s efforts to improve public awareness of new forms of racism in the State party, the Committee is concerned at the resurgence of skinhead, far right wing and other groups that are inspired by extremist national socialist ideologies and neo-Nazism. The Committee is also concerned at reports of verbal abuse of football players of African descent and the display of anti-Semitic slogans in football stadiums (arts. 2 and 4).
The Committee recommends that the State party take effective measures to prohibit incitement to racial hatred in its territory and redouble its efforts to promote tolerance towards persons of different ethnic origins. The Committee further recommends that the State party continue to work with sports associations to eradicate racism in all sporting disciplines.
Political racist speech
12. The Committee regrets the use of inflammatory language by politicians during election campaigns that vilifies and promotes prejudices against persons of minority ethnic origins in the State party (arts. 4 and 5).
The Committee urges the State party to thoroughly investigate and prosecute, where appropriate, the use during election campaigns of statements by politicians that incite racial hatred against persons of minority ethnic origin. In this regard, the State party should take active steps to prevent candidates and organizations from promoting and inciting racial discrimination.
Administration of justice
13. The Committee is concerned at the disproportionately high rates of incarceration of non-citizens which according to the State party are partly attributable to the failure by most of those held in pre-trial detention to satisfy the conditions for conditional release, such as lack of a permanent residence and the risk of flight before criminal proceedings are completed. The Committee is also concerned at reports of racial profiling and the use of stops and searches of persons of ethnicities other than the majority. The Committee is further concerned at the failure by the State party to adequately prosecute and punish law enforcement personnel who commit offences against people with migration backgrounds and fail to provide equal protection under the law, as well as the failure to prosecute many violations of the prohibition of racial discrimination, considering them “petty offences” (arts. 2, 4, 5 and 6).
In the light of its general recommendation no. 31 (2005) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, the Committee urges the State party to conduct a comprehensive study on the root causes of the over-representation of non-citizens in the criminal justice system and racial profiling. The Committee recommends that the State party:
(a) Take necessary steps to cease arrests, stops, searches and investigations based on appearance, colour or membership of national and ethnic groups;
(b) Investigate and punish cases of racial profiling and ensure that offences committed by law enforcement personnel, including allegations of racial profiling, are thoroughly investigated and punished with appropriate sanctions;
(c) Increase efforts to prosecute and punish all violations of the prohibition of racial discrimination in accordance with articles 4, 5 and 6 of the Convention;
(d) Intensify the training and sensitization of prosecutors, judges, lawyers, other judicial and police officers in the criminal justice system on the principles of the Convention.
Direct and indirect discrimination
14. While welcoming reforms to increase the quantum of damages for acts of racial discrimination before the Equal Treatment Commission and other bodies, the Committee regrets the continued use of “foreign quotas” which managers of establishments use to restrict the access of persons with migration backgrounds to public places. The Committee further regrets that notwithstanding the existence of section 87 of the Austrian Industrial Code that empowers authorities to revoke a business licence in instances of gross violation of the prohibition against racial discrimination, this provision has never been applied to any business entity despite a number of allegations in this regard (art. 5).
The Committee reiterates its previous recommendation (CERD/C/AUT/CO/17 para. 21) and urges that the State party redouble its efforts to investigate allegations of arbitrary denial of access to public places by persons of migration background based on their appearance, and to punish such discrimination with appropriate sanctions.
15. The Committee regrets reports of racist advertisements in the media, particularly relating to housing and employment opportunities that require applicants to be “Austrians only”. The Committee is concerned that such advertisements foment existing racial prejudice and stereotypes against certain minority groups (arts. 2 and 5).
The State party should take measures to prevent such racist advertisements through investigation and imposition of appropriate sanctions. The State party should also intensify its awareness-raising campaigns with a view to modifying existing prejudices and stereotypes against minority ethnic groups.
16. While noting the recent efforts to abolish the one year waiting period for family reunification purposes, the Committee is still concerned at reports on the use of quotas for each Länder, so that once the quota is met, individuals must wait several years to benefit from the policy on family reunification (arts. 2 and 5).
The State party should abolish the quota requirements per Länder, so that family reunification is not dependent on the number of acceptable applications in a particular period and Länder.
17. While noting the State party’s efforts to improve accessibility and the quality of education, the Committee is concerned at the high dropout rates in schools among Roma students and children with a migration background. The Committee is also concerned at the over-representation of Roma and ethnic children in special needs schools. The Committee also notes the absence of measures for the education of Roma children living outside the Burgenland area (art. 5).
The Committee recommends that the State party strengthen its special measures to increase the level of educational attainment of children of migrants, in particular by preventing their marginalization and reducing dropout rates. The Committee requests the State party provide it with information in its next periodic report on specific measures taken to implement Circular No. 19/2008 issued by the Federal Minister of Education on 5 August 2008 requiring that the lack of proficiency in the language of instruction should not be the criterion for assigning students to special needs schools. The Committee also requests information about the education of Roma children living outside the Burgenland area.
D. Other recommendations
Ratification of other treaties
18. Bearing in mind the indivisibility of all human rights, the Committee encourages the State party to consider ratifying international human rights treaties which it has not yet ratified, in particular treaties with provisions that have a direct relevance to communities that may be the subject of racial discrimination, such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the UNESCO Convention against Discrimination in Education.
Amendment to article 8 of the Convention
19. The Committee recommends that the State party ratify the amendments to article 8, paragraph 6, of the Convention, adopted on 15 January 1992 at the fourteenth meeting of States parties to the Convention and endorsed by the General Assembly in its resolution 47/111 of 16 December 1992. In this connection, the Committee cites General Assembly resolutions 61/148, 63/243 and 65/200, in which the Assembly strongly urges States parties to accelerate their domestic ratification procedures with regard to the amendment to the Convention concerning the financing of the Committee and to notify the Secretary-General expeditiously in writing of their agreement to the amendment.
20. The Committee recommends that the State party’s reports be made readily available and accessible to the public at the time of their submission, and that the observations of the Committee with respect to these reports be similarly publicized in the official and other commonly used languages, as appropriate.
Common core document
21. Noting that the State Party submitted its core document in 1992, the Committee encourages the State Party to submit an updated core document, in accordance with the harmonized guidelines on reporting under the international human rights treaties, in particular those on the common core document, as adopted by the fifth Inter-Committee Meeting of the human rights treaty bodies held in June 2006 (HRI/GEN.2/Rev.6, chap. I).
Follow-up to concluding observations
22. In accordance with article 9, paragraph 1, of the Convention and rule 65 of its amended rules of procedure, the Committee requests the State party to provide information, within one year of the adoption of the present conclusions, on its follow-up to the recommendations contained in paragraphs 8, 15 and 16 above.
Paragraphs of particular importance
23. The Committee also wishes to draw the attention of the State party to the particular importance of the recommendations in paragraphs 4, 5 and 13, and requests the State party to provide detailed information in its next periodic report on concrete measures taken to implement these recommendations.
Preparation of the next periodic report
24. The Committee recommends that the State party submit its twenty-first and twenty-second periodic reports in a single document, due on 8 June 2015, taking into account the guidelines for the CERD-specific document adopted by the Committee during its seventy-first session (CERD/C/2007/1), and addressing all points raised in the present concluding observations. The Committee also urges the State party to observe the page limit of 40 pages for treaty-specific reports and 60-80 pages for the common core document (see harmonized guidelines for reporting contained in document HRI/GEN.2/Rev.6, chap. I, para. 19).