Constitutional service questions legal basis for Vienna’s Auszeit-WG

A legal opinion from the Constitutional Service at Austria’s Federal Chancellery says the Residential Institutions Act may not be suitable for detaining children involved in youth crime at Vienna’s recently opened Auszeit-WG facility, ORF reported.

The opinion, issued in February and sent to the Justice Ministry, points to the separation between criminal law and the health sector. According to the Constitutional Service, closed facilities intended to prevent offences by children under 14 currently fall in principle under criminal law.

Under that interpretation, the provinces’ child and youth welfare authorities may intervene only for educational purposes as part of guardianship, including in cases involving children under 14. They may not intervene to prevent crime.

The Residential Institutions Act, which originates in the health sector, permits deprivation of liberty only in response to “general dangers” posed by people with mental illnesses or intellectual disabilities, the opinion says.

Although there is “nothing to object to from the perspective of the division of powers,” the Constitutional Service considers it “at first sight systemically inappropriate” to add provisions to the law aimed at preventing children under 14 from committing further offences.

Legal expert calls restrictions unconstitutional

Constitutional law expert Heinz Mayer told the Austrian Press Agency that the opinion showed a “breach of the constitution”. He said the restrictions on liberty currently being imposed at the Vienna facility had no legal basis and were therefore unconstitutional.

Mayer said those affected could seek financial compensation through an official liability claim before a civil court. A constitutional complaint to the Federal Administrative Court would also be possible, he said, with the case potentially proceeding to the Constitutional Court.

Vienna’s child and youth welfare authority, the Municipal Department 11, said its legal basis had been “discussed and considered” with the Justice Ministry. The Residential Institutions Act had been judged to be a suitable legal basis, a spokesperson said. The authority said the opinion contained no surprising legal views but that it was following the Constitutional Service’s legal assessments with “great interest”.

A spokesperson for Justice Minister Anna Sporrer said work on a draft law was being finalised. Under the planned legislation, it should not matter whether a child under 14 had already committed an offence or whether the restriction of liberty also served to prevent further offences.

The Constitutional Service’s assessment would be taken into account, the spokesperson said. The opinion was sent to all members of a working group established by the ministry, which has been working for more than a year on a nationwide solution. The group includes Municipal Department 11.

Vienna opened the Auszeit-WG on July 13 under the Residential Institutions Act. Children under 14 considered repeat offenders can be held there for up to three months.

The facility’s legal concept has repeatedly come under discussion. The Austrian Society for Child and Adolescent Psychiatry, Psychosomatics and Psychotherapy, as well as Heinz Mayer, have criticised it. Forensic child and adolescent psychiatrist Patrick Frottier and the Austrian Association of Social Work Professionals also opposed a concept paper.