PERMANENT MISSION OF AUSTRIA TO THE UNITED NATIONS
UNITED NATIONS GENERAL ASSEMBLY
SPECIAL SESSION (UNGASS) on Children 2001
NATIONAL REPORT AUSTRIA
Vienna, 2001
PART I
General Comments
The present report is the result of an extensive procedure which, on the one hand, deals with the legal position, financial situation, social and other status of children in Austria, and on the other hand, contains statements and specific demands of several institutions and non-governmental organisations which act on behalf of children in Austria.
The Status of Children and the Rights of the Child in Austria
The status of children in the Austrian legal system and social order has steadily gained in importance during the last decade with public and political debates and discussions on legal policy explicitly focusing on the realities of the lives of children, their concerns and legitimate interests. It was, however, the systematic implementation of the postulates of the Convention on the Rights of the Child (CRC) in Austrian law in the 90s that was primarily responsible. The United Nations Convention on the Rights of the Child (CRC) was ratified by Austria through the deposit of the instrument of ratification on 6 August 1992 (promulgated in Federal Gazette No. 1993/7). The Convention formally entered into force on 5 September 1992. Analogous surveys and a children’s rights campaign resulted in a generally high degree of awareness of the independent "interests of children" as defined in the CRC, not only among the general public, but above all among policy-makers.
1. End Decade Review
On the basis of parliamentary resolution E-59-NR 18. GP, the Federal Government commissioned an independent group of children’s rights experts to conduct a systematic review from 1992 – 1994 of living conditions in Austrian society, including all legislation relating to children in terms of its compliance with the United Nations Convention on the Rights of the Child (CRC). Not only were all administrative levels of political, legislative and administrative bodies included in the review, but also those NGOs acting in the area of children’s rights.
The children’s rights experts instructed to review the Austrian legal system observed in what is known as the Experts’ Report on the "United Nations Convention on the Rights of the Child" that the Austrian legal system is largely consistent with the "United Nations Convention on the Rights of the Child". Despite this, they criticized the fact that individual provisions of Austrian law appeared to be quite problematic in the light of the Convention and expressed the advisability of specific amendments to Austrian law against the background of the general objectives of the United Nations Convention on the Rights of the Child.
After detailed deliberations and consultation on this Experts’ Report in the parliamentary Family Committee a unanimous resolution (E-156-NR-18.GP) – with the votes of all the representatives of the Austrian Nationalrat – was finally adopted, whereby the Federal Government was commissioned with ensuring the implementation of a series of objectives pertaining to children’s rights in the interests of children and young people. This parliamentary resolution proved to be the decisive impetus for significant future systematic developments in children’s rights policy in Austria in terms of social and legal policy, particularly as it enabled the legislator to give a comprehensive mandate to the Austrian Federal Government to draft corresponding amendments to the law and to enforce analogous administrative measures on the one hand, and on the other hand this document also represents a self-binding, substantiated Plan of Action by the Austrian legislature at federal level for the purpose of implementation of the CRC.
Below is an attempt to depict achievements in terms of improving the circumstances of the lives of young people in Austria, the difficulties experienced in these endeavours and an honest presentation of the problems which arose in this undertaking as transparently as possible.
2. National Plan of Action
The foregoing parliamentary deliberations on the United Nations Convention on the Rights of the Child itself and the "Experts’ Report on the Convention", coupled with the support of a new, raised level of awareness of the rights of children among those responsible for child-related administrative and policy areas, and the inspiration afforded by a highly sensitised public discussion on the rights of the child were the starting point for prospective measures to improve the position of children. These measures were determined on the basis of recent findings and experiences in terms of young people’s requirements for protection, support and participation, whereby a form of modular development was finally chosen, to be understood both in terms of its all-inclusiveness and quality of contents as a "National Plan of Action" - a programme of measures to implement the rights of the child in Austria:
• Resolution of the Nationalrat, E-156-NR 18. GP
• Resolution of the Council of Ministers against violence in society, domestic violence, sexual abuse of children, violence towards women, violence among juveniles and violence in the media
• Resolution of the Council of Ministers for a "Plan of Action against Child Abuse and against Child Pornography in the Internet".
3. "Steering Committee on the Implementation of the Rights of the Child"
The "Steering Committee on the Implementation of the Rights of the Child" was set up in 1999 on the initiative of the department responsible for the rights of the child of the Federal Ministry of Social Security and the Generations, with the general objective of initiating a continuous process of evaluation of the situation in life of children in Austria. This Committee is a body comprising representatives from government departments, non-governmental organizations, the children and the children’s and adolescents’ ombudsman systems of the Bundesländer, and children’s rights experts. The aim was to ensure the effective coordination and monitoring of activities concerned with the implementation of the Convention at all legislative and administrative levels. The narrower objective of this coordination group is extensive observation of the terms of reference and presentation of problems relating to children’s rights, attainment of synergies and avoidance of duplication and multiplication, and instead promote cooperation between the various sectors and curb counterproductive procedures in areas of policy which affect children.
The human rights coordinators appointed by Federal Government resolution of 15 July 1999 (recital to the Council of Ministers, No. 670.425/17-V/A/5/99) in all the Federal Ministries and the government departments of all nine Bundesländer have a leading role to play. Their general task primarily consists in respecting and asserting fundamental rights and human rights in a society founded on democratic principles. One of their specific tasks is participation in the drafting of National Reports on the subject of human rights. The purpose of the activity of the human rights coordinators is to contribute to improving structured dialogue on human rights in Austria and to voice the willingness on the part of the Austrian Federal Government to establish the requisite priorities in the area of human rights issues.
Since, despite the resolution of the Austrian Nationalrat of 26 June 1992 calling for a systematic review of the legal situation at federal level in terms of its compliance with the CRC, the said review, notwithstanding several attempts, has not been conducted to date, the coordination department in the Federal Ministry of Social Security and the Generations plans to draft the concept for the said review in cooperation with the "Steering Committee on the Implementation of the Rights of the Child".
Statement by the Austrian Committee for UNICEF, supported by non-governmental organizations as well as the by the Salzburg children’s and adolescents’ ombudsman
According to international standards the rights of the child are indivisible and practically applicable worldwide. Implementation of these standards requires States to seek national and international cooperation. In this spirit, UNICEF Austria proposes that the ratification process be concluded forthwith and that domestic implementation be ensured by Austria of the following agreements:
• Optional Protocol to the United Nations Convention on the Rights of the Child on the involvement of children in armed conflicts (May 2000)
4. Optional Protocol to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (May 2000)
• ILO Convention No. 182 (Worst Forms of Child Labour, 1999)
• Rome Statute of the International Criminal Court (1998)
5. Moreover it is proposed to adopt measures to strengthen the United Nations Committee on the Rights of the Child, above all with a view to increasing the current number of members from 10 to 18 experts.
National and international monitoring bodies, inter alia, rank among the instruments that are essential for the implementation of the rights of the child. In the light of the Concluding Observations of the UN Committee on the Rights of the Child (consideration of the first Austrian State Party report pursuant to Article 44 of the Convention in January 1999) UNICEF Austria proposes the appointment of a statutorily defined independent monitoring body at federal level. This monitoring body should coordinate and monitor measures for the implementation of child rights’ standards in Austria (e.g. independent federal children’s and adolescents’ ombudsman). Additionally, the existing children’s and adolescents’ ombudsman systems of the Bundesländer should be strengthened to ensure effective fulfillment of their mandate.
Every evaluation is dependent on the availability of sufficiently detailed information, including statistical data. For this reason, UNICEF Austria recommends that those initiatives and scientific research projects be given increased support which provide the requisite child-centered data and results to enable a full assessment of the factual situation of children.
Statement by the Ludwig Boltzmann Institute of Human Rights on the enactment of children’s rights in the Austrian Constitution, supported by the Austrian Committee for UNICEF, Österreichische Kinderfreunde (Austrian Friends of Children), and other non-governmental organizations as well as the children’s and adolescents’ ombudsman systems of the Bundesländer
A study prepared by the Ludwig Boltzmann Institute for Human Rights on the question of the implementation of the United Nations Convention on the Rights of the Child in Austrian Constitutional Law (1998), which was commissioned by the children’s and adolescents’ ombudsman systems and the Federal Ministry of Social Security, proposes a complete draft of a „Federal Constitutional Law to Protect the Rights of Children and Adolescents“ which is particularly designed to improve protection of the fundamental rights of children and adolescents.
Although the Convention does not prescribe a particular form of domestic implementation, the United Nations Committee on the Rights of the Child, in the course of deliberations on the Austrian State Party report in January 1999, explicitly welcomed (para. 9 of the Concluding Observations) the willingness of Austria to conduct a parliamentary debate on the feasibility of embodying the principles of the United Nations Convention on the Rights of the Child in the Austrian Constitution.
PART II
I) Participation Rights
If the participation of young people is to make a general contribution to the implementation of their concerns and interests as well as to safeguarding their need of protection, society in general and policy-makers in particular must set themselves the tasks of guaranteeing children and young people the requisite protection in their various situations in life on the one hand, and optimal opportunities for personal development on the other hand – coupled with the virtues of independence, personal courage and taking responsibility for oneself and one’s fellow human beings.
In this connection, it is well to remember the Austrian initiative during its presidency in the European Union which led to the adoption in December 1998 of the resolution of the EU Council and the Ministers for Youth assembled in the Council on 26 November 1998 on co-determination of young people (13688/98 JEUN 61 SOC 472). All the key guiding principles on the participation of young people both at the communal, national and European level are formulated in this resolution. It also represents a political mandate in that every political decision will explicitly take into consideration the interests of young people.
In the course of deliberations on the 3rd Report on the Position of Youth on 18 June 1999, the Nationalrat called for the Federal Government to put youth support and youth representation on a statutory basis (Resolution E 192, 194 NR/XX. GP). The aim was to implement the idea of participation in Austrian policy on children and young people – not least because of the worrying trends in age distribution in the Austrian population, in particular the rapidly decreasing proportion of young people in terms of total population.
The Federal Youth Support Act and the Federal Youth Representation Act were passed in the year 2000 in compliance with this parliamentary mandate. In this connection, it should be mentioned that the 3rd Report commissioned by the Austrian Federal Government on the situation of youth as a whole, but above all the focus – the section on the participation of children youth, represented the basis for the substantive development of the foregoing legislation – the Federal Youth Support Act and the Federal Youth Representation Act.
Pupil participation
Autonomy in curriculum matters introduced in 1993 – allowing the school forum in general compulsory schools (consisting of equal parent and teacher membership) and the school committee (consisting of three pupils each from the ninth grade onwards, parents and teachers) to make autonomous decisions with regard to the curriculum – was an important step towards partnership in education.
The pupil representatives have - within the framework of the school forum - the „right to participate in the selection of educational material“, determining which kind of manuals, books etc. will actually be used during instruction.
Since the school year 1997/98 a deputy class speaker has to be elected in grades 5 – 8 who is entitled to participate in the meetings of the school partners with advisory function. Moreover pupil representatives may take part in the process of appointing principals by elaborating for the Bundesland school board together with the other members of the school forum (parents and teachers) a joint written statement concerning the applications handed in for the position.
The further development of the system of pupils representation – which has been viewed positively by the Committee on the Rights of the Child – describes another step towards a strengthening of democracy in education by allowing pupil representatives to participate in each of the working groups of the Federal Ministry of Education, Science and Culture.
The „Social School Work“ model, a cooperation of parents, teachers and students in support of socially disadvantaged families, makes a significant contribution towards supporting the establishment of the economic, social and cultural rights of children as laid down in the Convention. The „Social School Work“ model is aimed at counteracting problems such as poor marks, adaptation difficulties as well as violence or drug abuse experienced by children from socially disadvantaged families.
A conference contributing towards the Austrian EU Presidency discussion on the issue „How the Behaviour of School Partners Influences the Quality of Education and Child Rearing“ conducted by school representatives was held on 18 – 19 September 1998. The SOCRATES project „Participation in Schools“ saw the participation of representatives from Belgium, France, Italy, The Netherlands, Austria, Portugal and Scotland and delivered the school partnership report of the Federal Ministry of Education in cooperation with parents, teachers and school representatives which discussed the agreements between school partners and the inclusion of guardians and pupils on the subject of school quality maintenance. One teacher, one parent and one pupil representative presented the results at an international conference (Edinburgh 2 – 4 November 1998).
On the 18 – 19 June 1999 the Austrian Federal Pupils' Representation Body simulated an EU meeting discussing „Human Rights and its Implementation“ in celebration of the European Council’s 50th Anniversary. The Federal Ministry of Education, Science and Culture is contributing towards the UN-Human Rights Decade 1995 – 2004 by conducting an international school project entitled „School Network Human Rights“. The subject of human rights is to be approached from the perspective of youth in a network of international schools.
Participation training in schools
Pupils (not only pupils representatives!) are trained how to exercise the right to have their say within the framework of a) civic education, b) social education, c) head teachers and d) through their pupils representatives. Further education for school representatives is also offered through private school organizations, such as Pupils Associations, the Catholic Youth, preparatory civic organizations for teenagers etc. There are also a number of pedagogic institutions that conduct seminars focusing on the participation right in schools for teachers, parents and students together.
7. Participation of young people by lowering the voting age
In Austria the right to vote in elections to the Nationalrat and regional parliaments is not attained until the age of 18. Children as defined by the United Nations Convention on the Rights of the Child are therefore excluded from the right to vote for the institutions of representative democracy. Sustained efforts to lower the voting age at municipal level have since resulted in adolescents aged 16 and over attaining the right to vote in the local council elections in the Bundesland of Carinthia.
Statement by Österreichischer Bundesjugendring (Austrian Federal Youth Ring) and Österreichische Kinderfreunde (Austrian Friends of Children)
Since participation models for children and adolescents in Austria are primarily initiated and supported by adults, the entitlement of children and adolescents to opportunities for personal development and timely involvement in decisions are dependent on adults. Various children’s and adolescents’ bodies frequently duplicate unsuitable adult structures in politics, which even fail to function for adults, and deter children and adolescents from political participation. It should, on the contrary, be fun for children and adolescents to work in participation models. However, relevant youth studies and models that actually function are rarely publizised nor is there some principal joint coordination office for participation initiatives of young people.
Following from this we call for:
- ensuring as a basic principle that concerns of children and adolescents are taken seriously; to this end, increased measures to raise the level of awareness are required;
- provision of special budgets for children and adolescents in each municipality, with children and adolescents having a say in decisions on how those resources are used;
- the development of new participatory models with and by children and adolescents in order to have their needs and concerns adequately addressed;
- the establishment of a coordination office to develop ideas and concepts as well as to actually implement them.
National provisions such as the voting regulations restrict the basic entitlement to equal voting rights for everyone. Participatory rights for all children and adolescents residing in Austria are derived from Article 12 of the United Nations Convention on the Rights of the Child (CRC); it follows from this right that every child who is capable of forming his or her own opinion is entitled to freely express that opinion on all matters that affect him or her. The Austrian Federal Youth Ring is of the view that this entitlement includes the right to vote. Despite some efforts to lower the voting age to 16 at municipal level, respective legislation was in fact only adopted in the Bundesland of Carinthia where people aged 16 and over will be able to vote at municipal level from 2003.
Various reservations sometimes stated with respect to lowering the voting age (such as the alleged "indifference of young people to politics", lack of political education or easy manipulability of this age group etc.), are in contrast with what adolescents are in fact credited with (for instance, criminal responsibility or the right to choose their own vocational training from the age of 14, or the right to marry). Voting is a fundamental right, which it is imperative to guarantee independently of opinion polls.
Following from this we also call for:
- lowering the voting age to at least the age of 16 at all political levels (active and passive);
- introduction of political education and democracy as a teaching subject from primary school onwards;
- acknowledgement of democracy and participation as mainstays in school education;
- incorporation of the CRC in the Constitution.
Statement by the children’s and adolescents’ ombudsman systems of the Bundesländer
Participation of children and adolescents in all areas of life must be encouraged and expanded in accordance with Article 12 CRC, in particular:
- parents, teaching staff and employees of family advice centers and other institutions must be informed about the CRC; participatory conflict resolution models must be supported;
- in the area of schooling in Austria existing exemplary participation mechanisms for school children must be developed further on a project basis; this must be accompanied by encouraging the work of school magazines and other forms of communication (new media, e.g. Internet);
- political education must be included in the curriculum and given a practical, real-life element;
- mediation in schools must be encouraged;
- participation of children and adolescents in the planning and design of housing and urban planning activities (community rooms and open spaces) as a matter of course. In addition, building regulations and rules for residents and other regulations must be scrutinized with regard to their suitability for children and adolescents, and conformity with the CRC;
- opportunities for participation by young employees must be evaluated with regard to their efficiency and efficacy and developed further as appropriate;
- forms of participation in the area of (local) politics must be encouraged (cp. Salzburg juvenile law)
- the voting age must be lowered, as is now the case in Carinthia
- full standing for children and adolescents in all procedural matters that concern them must be guaranteed and suitable representation models („Child Counsel“) must be established.
II) Ban on Discrimination
In the Austrian Federal Constitution, the general ban on discrimination is anchored by the provision on equality, which appears in several places, primarily in Article 7: "All federal nationals are equal before the law. Privileges based upon birth, sex, estate, class or religion are excluded". Article 7 Paragraph 1 of the Austrian Constitution: "No-one may be disadvantaged on account of his/her disability. In addition to this, the Republic (Federal, Bundesländer and Communities) claim to guarantee non-discrimination between disabled and non-disabled persons in all areas of daily life." Article 7 Paragraph 2 of the Austrian Constitution: "Federal Republic, Bundesländer and communities claims actual equality between men and women. Measures for promoting the actual equality between men and women are permitted, particularly, by removing actual existing inequalities."
Article 6 of the International Treaty of Vienna contains a provision which makes it obligatory to guarantee the human rights and basic freedoms of all persons living under Austrian sovereignty without discrimination in regard to race, sex, language or religion as well banning discrimination in the case of all Austrian citizens based on the characteristics mentioned. The rights of Slovakian and Croatian minorities are anchored in Article 7 of the International Treaty of Vienna.
Further guarantees for protection against discrimination are provided under Article 14 of the European Convention on Human Rights and Fundamental Freedoms (which ranks as constitutional law), the constitution for implementing the international Convention for the removal of all forms of racial discrimination as well as the Convention for removing all forms of discrimination against women.
Equality of children born legitimate or illegitimate
Austria is one of those countries with a relatively high number of illegitimate births: in 1999 a total of 15,557 children were born illegitimate). Illegitimate children are considered to be equal to legitimate children in all respects in family and inheritance law. The parents of one child in two born illegitimate marry at a later date, which is why, through the operation of the law, children who were originally illegitimate are regarded retrospectively as legitimate (legitimization).
Non-discrimination in youth welfare
The principle of non-discrimination in the Jugendwohlfahrtsgesetz 1989 (Youth Welfare Act) indicates its wide range of application. The public youth welfare authorities are obliged by law (sect. 3) to grant assistance to Austrian and non-Austrian children - if they live in Austria (even if only on a visit) - in the same way. Help must not be refused either to an Austrian or a stateless minor, even if he/she temporarily lives abroad.
According to the Vorarlberg Bundesland Youth Welfare Act, public youth welfare authorities must grant all persons assistance if they are ordinarily residing in the Bundesland. The public welfare authorities must also grant assistance to Austrian citizens and stateless persons who ordinarily reside in the Bundesland when they are outside the Bundesland (Section 4 Paragraph 1 Bundesland Youth Welfare Act). The personality of the minor, particularly his predisposition, abilities, tendencies and stage of development must be taken into account. The minor's affiliation to a language community and his religion must also be taken into consideration (Section 3, Paragraph 2 of the Vorarlberg Bundesland Youth Welfare Act).
Non-discrimination in school
In Austria, girls and boys have equal access to school education and vocational training. In order to counter, as far as possible, any social discrimination of children, many special measures or support programmes have been developed for children coming from disadvantaged families, children whose mother tongue is not German, and disabled children, with the aim of balancing out the disadvantageous starting situation of this group. Various statutory measures (anti-discrimination and equality of treatment legislation) and special programmes to support women enhance the equality of opportunities and of treatment for girls in their working life.
Integration of disabled children
Article 7 Paragraph 1 of the Austrian Constitution: "No-one may be disadvantaged on account of his/her disability”. In regard to looking after the educational needs of disabled children, with the amendment of the Schulorganisationsgesetz (School Organization Act) Federal Law Gazette No. 766/1996 which came into force on 1.9.1997, the integration already practised in primary schools was extended to general secondary schools as well as to the lower cycle of academic secondary schools. According to Section 17 of the Compulsory Education Act, children who are residing in Austria temporarily have a right to attend a school. If they reside permanently in Austria, school attendance becomes compulsory (Section 1 of the Compulsory Education Act). The attendance of school includes a series of associated rights (school grants, free travel to school and free school books).
Integration instead of segregation
In the past decade, the Austrian Federal Government has taken a number of legal and administrative measures based on a rehabilitation concept to integrate the disabled in everyday life (disabled persons concept). To allow the disabled to participate in social life in the community, special efforts are being made towards the social integration of disabled children. In particular, the integration of disabled children and healthy children is being promoted at a very early age. Special care and educational facilities to meet the needs of disabled children (e.g. special kindergartens or special schools) are being provided, and special financial assistance is being granted for the additional expenses incurred as a result of the disability of a child. For example, a higher family allowance is granted for children who are considerably disabled, mentally or physically.
Disabled children - like healthy children - are automatically insured with a working parent under the mandatory health insurance scheme, the costs of medical treatment being covered by the insurance; they also receive rehabilitation free of charge. The travelling expenses and the costs of a person who accompanies the disabled child can be borne by the insurance institution if they exceed the parents' financial resources. If the care of a disabled child living in the same household requires the full working capacity of a parent, this parent may insure her/himself with the pension insurance fund for the time spent looking after the child. The Family Burden Equalization Fund bears such costs.
Care allowance for disabled children
On January 1993, a care allowance was introduced with the Bundespflegegeldgesetz (Care Allowance Act) and the nine Landespflegegeldgesetzen (Bundesland Care Allowance Acts) which is granted uniformly across the Bundesländer according to the same fundamental principles and aims. The care allowance can be granted according to the conditions, basically irrespective of age (older that 3 and in hardship cases, under this age as well) and type and cause of disablement (physical, mental or psychiatric). This means that disabled children can also receive the care allowance if they are provided with continuous care for more than an average of 50 hours per month.
Integration of disabled children into Kindergarten, other care institutions and schools
Due to the corresponding legislation in the Bundesländer, the increased demand and greater awareness of the population in particular is taken into account in regard to the educational requirements for the integration of disabled children. For example, in Salzburg, disabled children have been integrated into the Kindergartens since 1995/96. During 1998/99, a group of 34 children was cared for by 7 peripatetic special nursery-school teachers. During 1999/2000, 14 children with increased support needs were looked after by additional assistants in regular groups. In order to provide special development incentives for disabled children and to counteract their disabilities, integrated kindergartens, day care centers and primary school classes have been established, mainly in the larger towns, in addition to special kindergartens. During the initial phase of compulsory schooling teachers spend more of their time with them, help children with retarded development to achieve the maturity required for school in order to create almost equal school starting opportunities. Disabled children are cared for in a pre-school with special support.
By the amendment to the Salzburg Disabled Persons Act, it was ensured that the care of severely disabled children is not only provided by social workers in special school classes but also in integrated classes. Integration of disabled children into general secondary schools is regulated by the amendment to the Salzburg Schulorganisations-Ausführungsgesetz (School-Organization Implementation Act) (analogous to the provisions relating to primary schools). In addition to this, the integration of severely disabled children by creating "integration groups" has been re-regulated by the amendment to the Salzburg Kindergartengesetz (Salzburg Kindergarten Act). Since then, longer opening periods have also been required.
Education and training of a disabled child
The task of making education and training accessible to the disabled child, thus promoting his/her social integration and his/her development as an individual to the fullest extent, is fulfilled by a range of special schooling options and special educational centers as well as integration which caters for all ages from 6 to 14. The state education system therefore offers a choice between integration and special schools.
Integrated education for children with a need for special educational support became a statutory requirement for primary education from the start of the school year 1993/94 and for secondary education Grade 1 from the start of the school year 1997/98. An important concern in educational politics was realized with the introduction of joint integrated education for disabled and non-disabled children. The right of parents to choose between the different forms of special educational care for a disabled child was one of the most important achievements in the efforts to bring about the best possible form of integration for disabled children.
- Integrated classes: Disabled and non-disabled children are taught together in one class with a reduced number of pupils using a two-teacher system (one subject teacher and one specialist teacher) in all subjects. Teaching takes place according to different curricula using teaching methods which are suitable for a heterogeneous group.
- Teacher-support model (pilot project): A special assistant joins the class for a limited time for each pupil with special educational needs.
- Cooperation class: A regular class and a special class cooperate differently forming, for example, a joint group of instruction in certain subjects.
- Small class (support class) (pilot project): A class with a reduced number of pupils is taught by one teacher, provided this is possible, using a regular curriculum. Efforts are made to reintegrate the pupils into regular school.
- Special school/special classes: Disabled children may also attend a special school where the educational services are geared to the special needs and requirements of children who have a particular disability.
In order to support integration by means of material and personnel resources, there is a statutory requirement for methodical didactic know-how and special education centers which are usually set up on the premises of special schools.
Integration of disabled adolescents into profession life
In order to provide targeted preparation for professional life, disabled adolescents can be taught in integrated classed at polytechnic schools (pilot project) and, after the start of the school year 2001/2002, in special classes for preparing for professional life which are linked to special schools. Measures for vocational choice and vocational rehabilitation are discussed together with the disabled adolescent and introduced in order to help them find a job or an apprenticeship. Integration into working life is supported by means of allowances for apprenticeship, training or retraining, job search, trial jobs, vocational preparation and job training. Disabled children can complete an apprenticeship in a training shop in conjunction with vocational school or, if necessary, in special institutions for those who are physically disabled or disabled in their senses. Disabled adolescents are also trained in training shops for employment later on. So that disabled adolescents can integrate into the working world, the Behinderteneinstellungsgesetz (Disabled Employment Act) is promoting the creation and maintenance of training opportunities and work places for disabled persons. All employers with more than a specified number of employees are obliged to employ a certain number of disabled persons. Employers who do not employ the required number of disabled persons are liable to pay compensation amounting to the economic loss the employer would incur if employing the required number of disabled persons. A disabled adolescent is entitled to a bonus for his/her training.
For integration into professional life, particularly at the interface between the school and a profession, a series of qualified projects is available for adolescents which are also supported from the European Social Fund. To safeguard the special economic, social, health and cultural interests of disabled employees, a spokesman for the disabled must be elected in every business with more than five disabled employees who are in permanent employment. If disabled adolescents are employed, a youth spokesman must also be elected.
Integration of refugee children
Integration in schools
Pupils who are unable to attend classes without additional assistance due to insufficient knowledge of the German language are provided non-regular pupil status for a period of up to 12 months and as a rule are placed according to age. The non-regular pupil status may be extended for an additional twelve months by the school principal. During this one to two years period, the pupil´s capability in mastering the language of instruction has to be assessed.
If pedagogically feasible, even pupils with insufficient command of German can be transferred to the upper grade. Furthermore, pupils with a native language other than German attending a general compulsory school in Austria may receive special supplementary instruction in German for up to six school years. A special curriculum will be designed for this purpose. The supplementary instruction in German may be offered as parallel instruction (the students will be grouped together), an integrated curriculum (class/specialized teachers and co-teachers form a team) or if not possible otherwise, additional instruction will be held (some time in the afternoon). These measures may be applied for up to 12 hours per week for non-regular pupils and five or six weekly hours for regular pupils according to the type of school. Regarding the special supplementary instruction in German, care must be taken not to overburden the pupils.
Finally, pupils with a native language other than German, who do not belong to an autochthonous ethnic group, are offered instruction in their native language as an option (with marks) or as a non-compulsory exercise (without marks) to the extent of two to six weekly hours. A curriculum will also be developed for native language instruction. Native language instruction is aimed at encouraging, developing and strengthening bilingualism. In addition, personality and identity-building of the pupils concerned should be promoted. The instruction of the native language may take place in integrated classes or supplementary classes. Presently, native language instruction is held in 15 languages (Albanian, Arabic, Bulgarian, Chinese, Kurdish, Macedonian, Persian, Polish, Rumanian, Serbo-Croatian/Croatian/Serbian, Slovak, Slovenian, Spanish, Turkish and Hungarian) whereas the highest concentration of pupils is to be found in Serbo-Croatian and Turkish. A curriculum will also be issued for the native language instruction.
Because minors have the same status as national refugees when asylum has been accorded to them, their professional and social integration must be guaranteed. If they have access to the labour market, they will receive the same support as citizens of Austria from public funds according to their need. Compulsory general education also applies to foreigners (Schulpflichtgesetz - Compulsory Education Act), Federal Law Gazette No. 76/1985 as amended by the Federal Law Gazette I 134/1998). In addition to this, language and integration courses lasting several months are available for refugees and war refugees as part of the federal assistance provided by the Federal Ministry of the Interior to make it easier for aliens to cope with life without assistance.
Seminar series "Situation of foreigners and contact with them"
Since 1995, seminars have been offered or held jointly with the Group II/A of the Federal police and the Volkshilfe Austria on the above-referenced subjects. The seminars should contribute to a better understanding and appreciation of the living circumstances and situations of foreigners and consequently encourage acting in a non-prejudicial manner. In addition, they should also enable a better understanding of conflict situations which could result due to different cultural backgrounds as well as encourage contacts in line with human rights principles. Lastly, the seminars should enable better profit to be made of the work of NGOS, their methods, objectives and motivation.
Professional police instructors and representatives of the Volkshilfe Austria act as lecturers or trainers on a team-teaching basis. In addition, representatives of institutions for foreigners actively participate in carrying out or organizing the sessions.
Statement by the Austrian Committee for UNICEF
The Committee on the Rights of the Child expressed concern in connection with the federal state structure of Austria and the danger of discrimination owing to the differing regulations depending on the particular Bundesland (para. 8).
- The "Experts’ Report on the United Nations Convention on the Rights of the Child" (1994), submitted by the Austrian Federal Government on the basis of parliamentary resolution E-156-NR.18.GP, was a comprehensive fact-finding report on the conformity of national legislation with the CRC. Also in accordance with the foregoing resolution a similar comprehensive analysis should be initiated of regulations on the Bundesländer level that are relevant to children. Such a study should focus particularly on the question of the extent to which the variations in the exercise of regional competencies may give rise to discrimination of children and adolescents (e.g. with respect to youth welfare, youth protection, children’s care centers, welfare benefits for children and adolescents etc.) and what means exist for coordination between the Bundesländer.
- In addition, all measures, including studies and data collection, must be organized in compliance with the principle of non-discrimination, being aware of possible "hidden" discrimination, in accordance with Article 2 of the Convention on the Rights of the Child.
- Moreover, children and adolescents must not be discriminated against vis-à-vis adults on the basis of strict age limits. In this respect, too, the voting age should be lowered, a goal which is also supported by UNICEF Austria.
Statement by Integration:Österreich (Integration:Austria, a parents’ action group for an inclusive society for people with disabilities)
Integration as a human right must be embodied in the Austrian school system in terms of a fundamental duty. The unequivocal avowal by the Federal Government of the absolute priority of integration in schools – while upholding special schools optionally – as expressed in the rehabilitation concept, must also reappear in the definition of objectives for Austrian schools (s. 2(1) SchOG (School Organization Act).
For this reason, the following is called for:
- Allocation of public funds to special schools/remedial teaching must be oriented to the actual needs of pupils who require remedial teaching support; ministerial decrees that make allocations dependent on certain calculatory considerations, thus leading practically to a nationwide „restriction“ of the „permissible“ number of disabled children in order to receive further funding, must be abolished;
- Removal of the discriminatory provision in s. 3(1)(c) SchUG (School Education Act), pursuant to which admission to Austrian schools is dependent on having the requisite state of health and physical suitability;
- Replacement of the paradigm of „school incapacity“ (s. 15 SchPlfG/Compulsory Education Act); instead, a basic right of disabled children both to instruction or remedial support outside school should be guaranteed – in accordance with Article 2, Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to which no person may be denied the right to education;
- Elimination of „automatic“ withdrawal of the remedial teaching support requirement for physically and mentally disabled children in certain cases in secondary school;
- Enactment of a basic obligation to admit all disabled children to and fully integrate them in kindergartens. Since there is no legal entitlement to a place in a kindergarten in Austria and each Bundesland is governed by different regulations, this makes disabled children and their parents dependent on their Bundesland of residence, whether to obtain the best possible integrative support for their disabled child in a kindergarten;
- Review and reform (including amendment of the law) of the measures to prepare for beginning school ("school admissions period"), since the recent amendment of school legislation has led to new obstacles for joint classes of disabled and non-disabled children;
- Improvement of the quality of teaching in the lower forms of secondary school (for instance, in integrative classes ability groups may be disbanded by a resolution of the class committee or a division into groups may be inadmissible in certain cases);
- Special integrative measures should be provided when schooling ends and employment may start;
- Integrative proposals for the 9th grade must be set up; at present adolescents who require remedial teaching support cannot continue with integrative classes until the 9th grade, but they have to attend a special school again after the 8th compulsory school year;
- Right to optionally extend the duration of schooling with appropriate vocational opportunities;
- The variety of opportunities for school attendance (module system) must be guaranteed to disabled and non-disabled young people alike;
- Fundamental right to vocational training for all (theoretical and practical specialized training, but also a "general education");
- Vocational orientation and guidance for disabled young people as well from the 7th or 8th grades (on the job training, possibly with coaching, in firms, not in institutions for the disabled);
- Vocational coaching as an after-school activity with coaches who are already integrated into the school department for the purposes of vocational orientation and guidance (maintenance of continuity);
- Genuine opportunity to choose between integrative activities and institutions for the disabled (coach as authority)
- Elimination of the rigid structures prevailing hitherto – in the dual system as well as in the field of secondary and high school education;
- Review the content and structure of curricula of all higher educational schools with regard to the feasibility and extent of integration. Devise appropriate syllabuses!
- Replacement of discriminatory provisions (s. 5/4 School Education Act; s. 43(1(a) last sentence, School Organization Act), pursuant to which it is prohibited to exceed the maximum number of pupils in classes at schools of higher general education as a consequence of conducting integrated classes; and also indirect discrimination whereby whether pupils are admitted to a school of higher general education in certain cases is dependent on their marks in primary school or the result of the entrance examination or aptitude test;
- Special teaching centers (formerly special schools) - "remedial centers" must be embodied in the School Organization Act as a school type in their own right, and must also be in a position to conduct integrated classes even without their "own" pupils. The introduction of integrative measures in the field of education was accompanied by the establishment of special teaching centers to support them. However, the lack of motivating provisions for teaching staff and timely completion means that the evolution from a special school to a remedial center is not taking place.
- Provision on an equal basis of the requisite nursing and care staff or attendants both for special schools and integrative schools (s. 10 PflSchErh-GG (Compulsory School Maintenance Act));
- Equipment and design of schools (s. 7(2) Compulsory School Maintenance Act) must be suitable for the disabled;
- Integration teachers must be duly rewarded in accordance with an appropriate pay scale;
- The curricula at teacher training institutions must be extended to include the principles of inclusive pedagogy and didactics.
Statement by the children’s and adolescents’ ombudsman systems of the Bundesländer
Integration of disabled children and adolescents must be guaranteed in all areas of society (particularly in school, employment).
Moreover it is called for the elimination of discrimination based on sexual orientation by establishing the same age of consent for homosexual and heterosexual male adolescents.
III) Children and adolescents under alien law and asylum regulations - unaccompanied minors – children and adolescents in custody pending deportation
Foreigners who are in possession of a residence permit for Austria are entitled to bring their spouses and dependent, unmarried children – provided the latter do not intend to pursue gainful employment – with them to Austria. In addition to spouses, dependent, unmarried children (legitimate and illegitimate, including adopted children and stepchildren), may also join their families, provided that arrangements exist for the provision of maintenance and accommodation that complies with local standards for the Austrian population.
In Austria, dependent, unmarried children up to the age of 15 of foreigners with rights of residence are permitted to join their families pursuant to s. 21(3) of the Aliens Act (FrG) 1997. The original statutory restriction pursuant to which children up to the age of 14 were permitted to join their families, was abolished by the Constitutional Court in December 1999 (judgment of 19 June 2000, No. 16/00-6), as it took the view that a relationship of dependence between children and parents may also exist after the age of 14, these children continue to need parental support, are incapable of supporting themselves as a rule and in addition compulsory education for foreign children resident in Austria is nine years and the minimum school leaving age is 15.
On the basis of the judgment of the Constitutional Court the legislator increased the age limit to 15. This amendment came into force on 1 January 2001.
Young people at the age of 14, may apply for entry or residence permit (section 14, Aliens Act), with the agreement of the legal representatives. As of 16 years of age, they have full capacity to act (section 95 Aliens act 1997) in particular with regard to sensitive matters, but also proceedings regarding deportation, rejection, residence ban, expulsion custody prior to deportation etc. Foreign youth under the age of 16, whose interests can not be represented by their legal representatives (so-called "unaccompanied minors") can only act in their own name regarding court proceedings if in their own interest. (Section 95 para. 3 Aliens Act).
Legal position of minors seeking asylum
The Federal Law on the granting of asylum (Asylgesetz (Asylum Act) 1997, Federal Law Gazette 1 No. 76/1997 as amended by the Federal Law Gazette 1 No. 76/1997) regulates the legal position of minors during asylum proceedings. According to Section 25, Paragraph 2 of the Asylum Act, applications for asylum may be submitted by unaccompanied aliens over the age of 14. Unaccompanied minors under the age of 14 will be provided with a legal guardian by the court responsible, who will submit the application for asylum on behalf of the minor and will assist him/her legally during the whole proceedings. According to Section 21 of the Asylum Act, persons with a temporary right of residence who are seeking asylum may not be subjected to expulsion because of lack of means nor custody prior to deportation during the time of the asylum proceedings.
In terms of substantive law, access to the asylum process is guaranteed by being actionable. However, this requires authorization on the part of the applicant to take part in legal proceedings, which children do not generally have under the Convention. Therefore, according to Section 25, Paragraph 2 of the Asylum Act provides for the appointment of the Local Welfare Office becomes as legal guardian by the operation of law for the duration of the asylum process in order to ensure that the special need for protection is covered for all minors when their interests are not represented by their legal guardian. In addition, as part of the duty to instruct in accordance with Section 13 of the Allgemeines Verwaltungsverfahrensgesetz (General Administrative Proceedings Act), the authorities must guarantee the necessary support for protecting the rights of the asylum seeker during the process.
Asylum applicants who are minors may only be interrogated in the presence of a legal representative where the guidelines for interrogations which apply through the agency of the security servicies may be used for the interrogation.
Because minors have the same status as adult refugees when the outcome of the asylum process is positive, their professional and social integration must be guaranteed. If they have access to the labour market, they will receive the same support as native citizens of Austria from public funds according to their need. Compulsory general education also applies to aliens (Schulpflichtgesetz (Compulsory Education Act). Federal Law Gazette No. 76/1985 as amended by the Federal Law Gazette I 134/1998). In addition to this, language and integration courses lasting several months are available for refugees and war refugees as part of the federal assistance provided by the Federal Ministry of the Interior to make it easier for aliens to cope with life without assistance.
If the application of an unaccompanied minor for asylum is refused, then the Aliens' Department must be notified immediately so that provisions on aliens (including expulsion, residence ban and less severe means) can be fully applied to the minors. In special cases, however, if deportation is legally or practically impossible, or if deportation of the alien is unreasonable for important reasons a limited residence permit (which may be extended) may be granted for the federal territory. For asylum applicants without a temporary residence permit, there is an absolute protection from rejection into the country of origin and a ban on expulsion and custody prior to deportation. Thus, only those asylum applicants can be taken into or left in custody prior to deportation who have applied for asylum only after they have been arrested under alien law (sect. 21 Asylum Act).
According to Section 4, Paragraph 4, Clause 3 of the Asylum Act, the "third-country protection (protection in a third country)" formulated as a prognosis in the Asylum Act 97 should not be applied if asylum applicants' children who are minors have been granted asylum in Austria and have not been disallowed in the meantime. If asylum seekers have close connections in Austria, humanitarian considerations apply when they seek asylum in Austria.
Provisions for alien minors under alien law
The Aliens Act 1997 contains a series of special provisions for minors. During immigration procedures (the granting and withdrawal of residence permits, within the scope of special provisions for the immigration and residence of EEA citizens and measures to prevent immigration, terminate residence or effect deportation), minors are fully authorized to act when they have reached the age of 16 (formerly 18). They are also entitled to consult a legal representative or a person who they trust in verbal proceedings.
Minors under the age of 16 whose legal representatives are unable to protect their interests may participate in procedures only on their own behalf providing they are in their favour. If children have no legal representative, i.e. they are unaccompanied, the counsel of the Youth Welfare Office in the capital of the Bundesland in which the minor lives is automatically appointed in compliance with Section 95, Paragraph 3 of the Aliens Act.
Apart from legal guardianship during immigration procedures, it is generally possible to appoint a counsel for minors in individual procedures in connection with the care, education, legal representation or estate of the minor if the welfare of the minor is threatened by the behaviour of the parents. This would be the case, for example, if the minor is abandoned or left behind without supervision. In such cases, the court may appoint either a guardian or a counsel who is usually the welfare officer.
Custody prior to deportation for minors as ultima ratio
According to Section 61 of the Aliens Act, aliens may be taken into custody (Custody prior to deportation) providing this is necessary to protect the proceedings for issuing a residence ban or expulsion order until these can be enforced or to protect the deportation, expulsion or transfer (for an overview on the number of minors held in custody prior to deportation, see Annex 1 Table 18).
Application of "less severe measures" for minors (and their parents)
According to the provision under Section 66 of the Aliens Act, authorities do not have to implement the regulation of holding in custody prior to deportation if they have reason to believe that their purpose can be achieved by using less severe means, in which case, authorities must use less severe measures against the minor unless they have reason to believe that the purpose of custody prior to deportation cannot be achieved by it. When a minor is served with a deportation order, the authorities must use less severe means than holding in custody prior to deportation, such as an order for the minor to be accommodated on premises determined by the authorities. In this case, the aliens must report to the Security Service Office every other day. This instrument is also linked to the condition that aliens allow themselves to be processed by the criminal investigation department (sect. 66 of the Aliens Act). Thus, under Section 66 of the Aliens Act, authorities have a fundamental duty to refrain from serving a custody order prior to deportation and to order less severe means. Nevertheless, if the authorities serve a custody order prior to deportation, then the reason for this decision must be based on a reason for not applying Section 66 of the Aliens Act. It is therefore clear that using less severe means is the rule in the case of adolescents and holding in custody prior to deportation the exception.
In view of the concern expressed under Point 27 of the opinion of the committee for the implementation of this provision, starting from the jubilee "10th anniversary of the Convention on the Rights of the Child" on 20.11.99, a comprehensive catalogue of measures has been worked out between the Federal Ministry of the Interior) and the Federal Ministry of the Environment, Youth and the Family. According to this, in spite of the existing legal provisions, all measures have now been exhausted to keep the number of minors held in custody prior to deportation as low as possible and, particularly in the light of Article 37 of the Convention on the Rights of the Child, to hold a minor in custody prior to deportation only as a last resort to fulfill the legal requirement of the Aliens' Department.
Based on this catalogue, by approval of the Federal Ministry of the Interior on 9.12.99 (File 31.340/12-III/16/99) - legally enforceable - Special provisions for minors were laid down in the Alien Act, in particular, the use of less severe means. The above-mentioned approval is in reference to Section 95 of the Aliens Act which contains a provision that minors older that 16 years of age are authorized to take part in proceedings according to Main sections 3, 4 and 6 in the Aliens act, while aliens who are minors under 16 years of age and whose interests cannot be safeguarded by a legal representative can only take part in proceedings under their own name when they are to his/her advantage. In the case of aliens who are minors who are under the age of 16, the local youth welfare officer automatically becomes the legal representative during the introduction of proceedings relating to the Aliens Department (registration office).
Establishing the age: Because establishing the age is crucial for making the decision over serving of custody prior to deportation, it was found that establishing the actual age in particular of an alien is often extremely difficult in practice because of missing or falsified documents. Because, according to the provisions in the Allgemeines Verwaltungsverfahrensgesetz (General Administrative Proceedings Act), the authorities are restrained in discovering the material truth, simply stopping at the assertion of the party involved to clarify the facts of the case is not sufficient. In this case, it will also depend on the outward appearance but for initial measures only. In those cases where it is not possible to establish reliably whether an alien is a minor, the Aliens Department must immediately contact the Youth Welfare Office which is responsible and attempt to clarify the age of the alien. The expert opinion of a doctor may be sought for this purpose.
Using less severe means in regard to a minor: If the authorities have decided that the alien is a minor, the following details apply in regard to implementing Section 66 of the Aliens Act: The basis for implementing less severe means in accordance with Section 66 of the Aliens Act is that the purpose of holding the alien prior to deportation, i.e. the protection of proceedings in order to terminate residence (residence ban or expulsion) until enforcement or the protection of an expulsion or a deportation, can also be achieved in some other way. One exception to the legal obligation to use less severe means in regard to a minor exists for those cases where the authority, based on certain facts, has reason to believe that no other way can serve the purpose of holding the minor prior to deportation (protecting the proceedings or expulsion). In practice, this is taken into account if the alien has already used the less severe means applied to him/her once before to disappear or if the alien has committed a criminal offense. If therefore, the authorities have to serve a custody order on the minor prior to deportation in isolated cases, the reason for this decision must contain justifiable grounds for not implementing the provision to use less severe means.
The provision also makes it clear that, under no circumstances must a custody order be served prior to deportation in respect of a minor under the age of 14 but, if necessary, a less severe means must be used. In the case of minors who are in prison, the Aliens Department must carry out the necessary proceedings to terminate residence during this detention and make sure that custody prior to deportation can be avoided to enforce the residence termination.
Using less severe means in regard to accompanying persons: If less severe means have been used in respect of a minor, a check must be carried out as to whether this can also be applied to any persons who may be accompanying the minor (parent or guardian or adult brothers and sisters) for which the condition exists for serving custody prior to deportation. In practice, it has frequently been appropriate to serve a custody order prior to deportation on individual family members (such as the father of the family). If the conditions for imposing custody prior to deportation exists both for the wife and the children, then the "unity of the family" concept should not be extended so that these persons are automatically held in custody as well. Applying less severe means to the accompanying persons is probably justifiable in this type of scenario as it would not be expected for the members of the family of an alien who is in custody prior to deportation to disappear.
With a further enactment from the Federal Ministry of the Interior on 10.4.2000 (Clause. 31.340/17-III/16/00), the central principles for the Aliens Department to use in handling minors in relation to using less severe means according to Section 66 of the Aliens Act can be summarized as follows:
"The number of minors to be held in custody prior to deportation must be as small as possible. In the light of Article 37 of the Convention on the Rights of the Child, custody prior to deportation should only be used as a last resort in fulfilling the legal requirements of the Aliens Department.
1. Under no circumstances must minors under 14 years of age be taken into custody prior to deportation.
2. If a minor who is not of age is accompanied by a parent or another adult (such as adult brother or sister or relation), when checking whether an imposition of custody prior to deportation can be lifted for this person in favour of using less severe means, particular attention must be paid to the well-being of the minor who is not of age. In the case of persons for whom it cannot be established whether they are minors or of minors who are not of age, the Aliens Department must exhaust all available and legal means to establish the age (such as contacting the Youth Welfare Office and calling on the services of a doctor) and finally, start from a justifiable assumption in regard to the person affected.
3. It is only permitted to refrain from using less severe means in respect of a minor if the authorities, based on certain facts, have reason to believe that the purpose of holding prior to deportation cannot be served by this means, particularly if the minor had previously attempted to evade the proceedings or has committed a criminal offense.
4. If, based one of the situations mentioned above, custody prior to deportation is imposed in respect of a minor, the reason for this decision must contain justifiable grounds for not implementing the provision to use less severe means.
In addition to this, it must be pointed out that "in accordance with reducing the detention of minors, holding a minor in custody prior to deportation following a prison sentence must be avoided."
These practical measures of "using less severe means in the case of minors" in accordance with this provision represent a form of custody until deportation of asylum seekers who are children which is suitable for ensuring the well-being of child asylum seekers and satisfy the requirements of Articles 20 and 22 of the Convention.
Appropriate accommodation for minors: If, for the reasons listed above, no less severe means can be implemented, then special provisions apply to the imposition of custody prior to deportation in respect of aliens who are minors (sect. 68, para. 2 of the Aliens Act): Aliens under the age of 16 may be taken into such custody only if accommodation and care appropriate to their age and development are guaranteed. In principle, minors kept in custody prior to deportation must be separated from adults. However, if the parent of a minor is also taken into custody prior to deportation, the family must be kept together. Because in recent practice greater priority has been given to proving appropriate accommodation as an alternative to taking minors into custody prior to deportation, the treatment of minors pursuant to the Convention is respected in this area, and the Austrian National Assembly has therefore extended its mandate to the Federal Government to implement Article 37 (b), (c) and (d) of the Convention on the Rights of the Child to provide appropriate accommodation and implement legislation in a humane manner.
Minors and unaccompanied minors whose application for asylum has been rejected with final effect but who cannot be deported for legal or practical reasons and minors who are not covered by the federal assistance scheme are entitled to public welfare under the principle of territoriality (Section 3 of the Youth Welfare Act). In addition to other social services, this includes accommodation in homes or other children's institutions, health care, support in education and vocational training, or pocket money to cover minor personal needs of minor aliens over the age of fifteen who are accommodated in institutions or homes. The responsibility of the authorities and the laws relating to the protection of minors arise from the Hague Convention of 5.10.61, Federal Law Gazette No. 5/1975, which is binding for Austria.
During 1999, the Federal Ministry of the Interior submitted a plan to the Bundesländer for setting up so-called "Clearing Centers", i.e. distribution centers for unaccompanied child asylum applicants under 16 years who must be classified as a group in particular need of protection. According to this plan, the status of unaccompanied child asylum seekers and his/her prospects in Austria must be clarified within a maximum period of three months. If it is not possible for an adolescent to return to his home, then measures should be taken for his/her integration. In addition to the increased use of "less severe means" as stipulated under Section 66 of the Aliens Act, this initiative should contribute to the protection of the child in accordance with the provisions under the United Nations Convention on the Rights of the Child to the optimum degree.
The report of the Advisory Council on Human Rights on "Minors in Custody Prior to Deportation"
Starting from the jubilee of the 10th anniversary of the Convention on the Rights of the Child and the catalogue of measures which has been worked out between the Federal Ministry of the Interior and the Federal Ministry of the Environment, Youth and the Family for improving the legal position of refugees who are minors, and with express reference to the Convention on the Rights of the Child, the "Advisory Council on Human Rights" set up on the basis of the Sicherheitspolizeigesetz (SPG) (Act on the Maintenance of Public Security) (Sections 15a, 15b, 15c and 93 SPG, Federal Law Gazette No. 56671991 as amended) and the ordinances (Federal Law Gazette II No. 202/1999 and 395/1999) has been occupied with this problem. In its report on the problem of "minors in custody prior to deportation", concluded on the 11.7.00, the Advisory Council on Human Rights finally, and expressly bore witness to the obligations under the Convention on the Rights of the Child (particularly Articles 1 and 37) being the standard reference for its findings and recommendations on the problem of deporting aliens who are minors. Starting from its basic findings that the provisions under the Convention on the Rights of the Child rule on the permissibility of restricting the freedom of minors under alien law, and that the detention of a minor in custody prior to deportation should only be considered as a last resort in fulfilling the legal requirement of Alien Departments, the Advisory Council on Human Rights have extended the following recommended provisions to the Federal Ministry of the Interior:
Comprehensive and age-differentiated statistical recording should be carried out with respect to all alien minors for whom either a custody order prior to deportation was served or a "less severe means" was used,
Amendment to the Aliens Act to unify the age of authorization to act with the legal age of majority and equalize legal representation by the youth welfare officer until the age of majority has been reached.
The Aliens Department should be obliged to notify the Youth Welfare Office responsible immediately of the arrest of an alien minor. Setting up of an emergency service at busy Youth Welfare Offices outside the usual working hours.
A legal ban should be applied on imposing custody prior to deportation in respect of alien minors under the age of 14.
Where the age of an alien without documents is unclear and providing the age of majority of the alien is not obvious, the minority of the alien should be doubted
The act should be amended so that the duty to impose "less severe means" in respect of a minor who is under the age of 14 is extended to the parent or guardian accompanying the alien minor where the conditions for imposing custody prior to deportation exist.
The imposition of custody prior to deportation of a minor after the end of a prison sentence should be avoided if possible.
As an extension to the existing plans, accommodation and care centers, which guarantee the minimum standard of accommodation for adolescents, should be set up for unaccompanied asylum applicants who are minors.
Above all, the financial matters should be clarified for the rapid implantation of "clearing centers".
The considerations expressed by the Committee on Children's Rights are now taken into account with the comprehensive catalogue of measures presented for improving the legal position of refugee minors in Austria.
Statement by asylkoordination österreich (austrian asylum co-ordination), supported by Volkshilfe (People’s Aid) Upper Austria; Caritas Austria; Advisory Service for Deserters and Refugees; Zebra Association Graz; Asyl in Not (Asylum in Need); Integrationshaus Vienna; Verein Kinderstimme (Children’s Voice Association); African Association for Human Rights and Democracy in Africa (AHDA), EWA Flüchtlingshilfe der Katholischen Aktion (Catholic Campaign for Aid for Refugees), Austrian Evangelical Refugee Organization, Volkshilfe Austria, Human Rights-Women’s Rights, Fringe Movements and Green Trade Unionists (AUGE-UG), Caritas Graz, Caritas Vienna, Caritas Vienna-Advice Centre for Foreigners, Peregrina Association, Austrian Federal Youth Ring, Österreichische Kinderfreunde (Austrian Friends of Children), ARGE Care of Detainees Pending Deportation Innsbruck, Minorities Action Group Innsbruck, Advice Centre for Foreigners Klagenfurt, Ludwig Boltzmann Institute of Human Rights, Austrian Committee for UNICEF and by the children’s and adolescents’ ombudsman systems of the Bundesländer
The organization austrian asylum coordination has been drawing attention to the difficult living conditions of unaccompanied child refugees in Austrian for a number of years now – child refugees in Austria are frequently without accommodation, are detained pending deportation, and are denied access to education and work and thus to an earned income. In addition, they have no medical insurance and/or no care appropriate to their age.
For the reasons stated above, austrian asylum coordination and the organizations, action groups and institutions listed above are calling for measures to improve their situation, in particular to implement the following central requirements for child refugees:
- No detention pending deportation for minors. There were 597 minors in detention pending deportation in Austria in 1999 – detention in no way provides children with suitable accommodation for their age and thus violates the United Nations Convention on the Rights of the Child.
- The age of legal capacity in proceedings on the registration of foreigners (16 years at present) must be increased to the same age limit as for asylum proceedings.
- In asylum proceedings inadmissibility arguments based on safety in a third country (s. 4 Asylum Act), on lack of jurisdiction (s. 5) and on the basis of an obvious lack of justification for the application for asylum (s. 6) must not apply to child refugees.
- Fair asylum proceedings giving particular consideration to the age of the minor (interrogations in asylum proceedings adapted to children, acknowledgement of child-specific reasons for fleeing).
- Special training courses and further training for all official representatives, interpreters, welfare workers and others who have contact with child refugees.
- Child refugees must have access to education and the job market both during and upon termination of their asylum proceedings if repatriation is not permissible or possible.
- Repatriation of the applicant who has been refused asylum must generally comply with the requisite special precautions in each case and moreover, only be permissible if there is a guarantee that the minor will be looked after in the host country.
Specific principal requirements for unaccompanied child refugees are:
- The establishment of clearing offices suitable for children, whose task it is to arrange for the necessary basics for children and adolescents after their arrival in Austria (incl. organization of accommodation, medical care, social welfare and legal aid, and tracing of the whereabouts of the parents).
- De facto observation of statutory responsibility by the Bundesländer, in particular with regard to accommodation and care of unaccompanied child refugees in accordance with the standards of the Youth Welfare Act.
Statement by the Caritas Ausländerhilfe (Caritas Assistance for Foreigners), Archdiocese of Vienna
The age limit for children to join their families who have settled in Austria should be 18, in conformity with the Convention on the Rights of the Child:
Article 1: A child is any person who has not yet attained the age of 18, insofar as the law applicable to the child does not provide for an earlier age of majority.
Article 9:The States Parties guarantee that a child is not separated from his parents against the will of the latter, unless the competent authorities ... decide that the said separation is necessary for the welfare of the child.
Dependents joining their families who have settled in Austria (spouses and children up to the age of 18) should be excluded from the quota regulations, following human rights obligations on the protection of family life. If this request cannot be complied with in the short term, we should like to see the establishment of a special quota as the first step in this direction.
The consequence of the prevailing restrictive provisions on bringing dependents to Austria (quota regulations and long waiting periods before a quota place is granted) is that people who have settled in Austria have brought their dependents to Austria without a residence permit and these dependents are residing illegally in Austria – in some instances they have been doing so for years. Both of the foregoing demands necessarily involve working towards legalization of the residence of this group of people (children for the most part).
IV) Violence against children – family violence
Ban on corporal punishment and violence in Austria
Since 1989, all forms of physical and psychological violence against children has been outlawed as a means of education. The central legal provision (Section 146a of the General Civil Code) makes this fundamental principle clear: „... the use of violence and application of physical or psychological suffering is not permitted. According to the case law of the Supreme Court (judgment of 24 June 1992, no. 1 Ob 573/92), violations of the ban on violence and/or corporal punishment as contained in section 146 a of the General Civil Code are to be taken into account when assessing the legal relationship between children and parents, for example when transferring sole custody from one parent to the other one (sect. 176 of the General Civil Code).
The comprehensive ban on violence (Section 146a General Civil Code) has been extended by a series of protective provisions. By the setting up of advice and help services, such as the child-rearing counselling services and the social services of the youth welfare system, as well as the extension of child-protection centers and the provision of child-emergency telephone lines, consistent pressure should be applied to achieve violence-free living conditions for children.
The creation of "parent schools" should promote all methods and models for child education without violence and improve the competence of parents in child education—their goals are to prevent relation conflicts and problems of growing-up, and especially to combat all forms of violence against children.
The Protection Against Violence Act - Gewaltschutzgesetz
The Protection Against Violence Act - which came into force on 1 May 1997 - constitutes a legislative milestone in action against domestic violence - bearing in mind that in our society, domestic violence is still a widespread phenomenon, taking a variety of forms and occurring at all levels of society. With the Protection Against Violence Act, the security services and the officials of the public security services have been entrusted with additional competence for intervention in the case of domestic violence. On the one hand, the legal instrument of a temporary injunction has been extended to a larger group of people. On the other hand, the precondition for an official intervention has been reduced, and the implementation of the protective measures has been simplified. Cooperation between courts and security services in the area of domestic violence has been improved. Cooperation between courts and police in the area of domestic violence has been improved. In the cases of violence or the threat of violence, the police are now entitled to have the person responsible for the violence removed from home (expulsion) and to forbid him from returning for 10 days. If during this time a temporary injunction has been filed by the court the expulsion lasts for (maximum) 20 days. The court may maintain this temporary injunction to certain areas such as the way to work, kindergarten, school etc. The no-entry-injunction can be extended to three months, and if a petition for divorce (or division of the matrimonial property, or the right to use home) is filed, until the end of this proceedings.
Through the Gewaltschutzgesetz (The Protection Against Violence Act), now all close relatives of the violent offender including the partner and the partner’s close relatives are protected from violence, threat and psychologically unbearable behaviour through temporary injunction, provided they have a pressing need to stay in the flat, irrespective of the right to the flat. Since violence against children is also often carried out by a parent, who as a rule is also the legal guardian of the minor, a petition for the imposition of a temporary injunction under sect. 382 b Regulation on Execution may now also be filed by a minor through his legal guardians. In a case where one parent has exerted violence and the other parent- however due in part to fear- is not in a position to file a petition for a temporary injunction on behalf of the child, then the youth welfare office shall file the petition as the special guardian for the child exposed to violence (sect. 215 para. 1 General Civil Code).
„25-Point Action program of the Federal Government Against Violence in Society” - „Action Plan to Combat Child Abuse and Child Pornography on the Internet“
Austria undertook further intense efforts in dealing with violence directed at women and children, summarized in particular in the „25-Point Action program of the Federal Government Against Violence in Society” of September 1997. Furthermore, the „Action Plan to Combat Child Abuse and Child Pornography on the Internet“ of 1998 signaled concerted action by the political decision-makers to strengthen the protection of children from abuse.
Children and adolescent’s ombudsman system - "Platform against violence in the family" – Prevention of violence
The ban on violence promulgated in 1990 (Section 146 (a) General Civil Code) was strengthened by a series of provisions for protection: The legal establishment of a system for children and youth ombudsman assistance in each of the nine Bundesländer as well as their establishment at the federal level, played a decisive role to encourage respect of the ban on violence at the level of collective awareness. The main task of these institutions is to “provide assistance in the case of difference of opinions and conflicts between children and their legal representatives".
The “Platform Against Violence in the Family” was established to strengthen coordination of the efforts of governmental and non-governmental offices dealing with prevention, intervention and follow-up of violence. The committee addressing fundamental matters concerning prevention of violence (prevention committee) was created in the framework of the legislative provisions enacted by the Federal Ministry of the Interior for protection against violence. It is an advisory body for the preparation of general strategies for effective cooperation between police and victim protection centers. In the framework of the prevention committees, working groups were set up to increase effective guarantees of protection against all forms of violence. In particular they address “Violence against children” especially with the aim of strengthening and encouraging cooperation between youth welfare bodies and the police as well as judicial authorities. Topics dealt with included "Violence against migrants" and the topic of psycho-social assistance for victims.
In addition to social services of the public and private bodies responsible for social services, child protection centers and the children and adolescent’s ombudsman system primarily offer advice and assistance in the case of violence. The first child protection center which was established in 1985 in Linz has proved effective and in the meantime centers have been established in all of the Bundesländer. Children in a crisis situation, also have the possibility of taking advantage of advice and assistance with a series of children (emergency) helplines, including among others --„Rat auf Draht”.
Due to the amendment to the Youth Welfare Act, 1998, bodies responsible for youth welfare have the obligation to report any suspicions of neglect, ill-treatment or sexual abuse of minors, with specific reference to the person concerned and in accordance with Section 37 and their professional and legal responsibilities and obligations. In order to effectively address violence, permanent cooperation with professional groups (youth welfare bodies, the forces of law and order, courts, advisory offices such child protection centers etc.) is essential. Moreover, violence free living conditions for children should be achieved through the establishment of advisory and assistance programs such as the child education advisory offices and the social services of the bodies responsible for youth welfare. Furthermore, this will be achieved through the expansion of the child protection centers and the availability of emergency helplines for children.
In order to facilitate the detection of violence against children, a series of child protection groups have been developed at hospitals; their composition is interdisciplinarian and includes professional groups of doctors, nursing staff, psychologists and social workers. Therefore, on the one hand, a high professional standard, and on the other hand the permanent interaction of child protection groups at the hospital will be guaranteed.
A number of NGOS work in this area to ensure protection of children against violence. These include, for example: the Association for violence-free education of children, the Association for the Voice of Children", the Association of „the Lobby for children”, and other organizations such as "Rettet das Kind" (Save the Child) as well as organizations which are a part of the Austrian Federal Youth Circles (ÖBJR).
Research work in the area of violence in the family and against children
Recently, there has been increased research in the area of violence in the family and violence against children: Research on violence in the family, a part of the Family Report provides a comprehensive report on the sources, consequences, frequency and preventive possibilities of violence in the family.
On the occasion of the 10th anniversary of the legal ban on corporal punishment or violence in Austria, an investigation is being carried out into the effects of the legal ban on the child-rearing behaviour of the Austrian population in comparison to 1978 – 1991 – 2001 (Project "INTOLERANCE TO VIOLENCE IN SOCIETY") on behalf of the Federal Ministry for Social Security and the Generations. As regards its content, this project should be extended to all EU states prepared to take part in 2001. This should give further impetus to the "International Decade for a Culture of Peace and Non-Violence for the World`s Children" as proclaimed by the United Nations for 2001-2010.
V) Sexual Abuse of Children - Child Pornography on the Internet
Statutory measures for the protection of children against sexual abuse and sexual exploitation
Sexual Intercourse and any form of sexual activity with or in the presence of a minor is liable to severe punishment. The protection of children against the misuse of care positions (parents, legal guardians, teachers, officials) for sexual purposes, including sexual activities with third parties, is also guaranteed by the Penal Code.
According to recent figures the number of criminal reports that have been filed in conformity with sections 206 and 207 (severe cases of sexual abuse of minors) of the Penal Code (Strafgesetzbuch, StGB) as well as the convictions have clearly risen in recent years. This is above all due to the fact that the subject of sexual abuse of children has been discussed intensively in public for a number of years now.
Legal criminal statistics:
|Year |Reports filed as per sects. 206, 207 StGB |Convictions (sects. 206, 207 StGB) |
|1994 |588 |207 |
|1995 |610 |198 |
|1996 | 761 |246 |
|1997 |895 | 215 |
|1998 |745 |252 |
|1999 | 690 |201 |
Following a significant rise in public awareness, important amendments were made to the law during the period covered by this report. The Strafrechtsänderungsgesetz 1998 (The 1998 Criminal Law Amendment Act) which came into force on 1 October 1998 brought about substantial improvements with respect to the legislation presented in the Initial Report particularly with regard to underage victims of a sexual offense. On the one hand, the period of limitation for prosecution in the case of certain sexual offenses committed to minors was extended, so that if applicable, it would first begin to take effect at the time when the victim reached the age of majority. On the other hand, sexual activities equivalent to sexual intercourse no longer fall under the scope of application of section 207 of the Penal Code and have been incorporated into sections 206 ff as severe sexual child abuse. Consequently, the minimum sentence for such offenses has been doubled (and henceforth a correspondingly higher qualifying sentence is also applied; section 207 of the Penal Code is henceforth entitled "The Sexual Abuse of Minors", and section 206 of the Penal Code is henceforth entitled „Severe Forms of Sexual Abuse of Minors").
In addition to the former provision stipulating that after a preceding hearing with cross-examination, victims of sexual offenses have the right to refuse to give testimony, the Criminal Proceedings Amendment Act of 1993, has improved the situation of witnesses by introducing the possibility of gentle hearings (for example, by video technology, without direct confrontation with the defendant who is in a separate room) is used more often and more intensively for preliminary proceedings as well as for trials: witnesses under the age of 14, victims of sexual offenses, are henceforth entitled to a gentle hearing. Furthermore, victims of sexual offenses have the right to submit an application for a gentle hearing. In cases where, it is expedient to question witnesses, in their own interest or in the interest of finding the truth, the witnesses are to be questioned, at the trial as well, in a gentle manner (even without an application). The questioning of a witness may be entrusted to an expert, and currently this provision no longer applies only in the case of witnesses under the age of 14, but also over this age limit, and therefore especially in the case of adolescents.
The Amendment of the Act on Assistance to Crime Victims (Verbrechensopfergesetz) of 1 January 1999 in accordance with the Austrian Nationalrat Resolution (E-105-NR, XX.GP) of 26 February 1998 fulfils the request repeatedly made over the years to finance the cost of therapy for crime victims. Pursuant to this act, victims of sexual assault have a right to therapeutic treatment paid for by the State through the social legislation system.
"Trial assistance"
In the framework of the model "Trial assistance in the case of sexual abuse of girls, boys and adolescents" the psycho-social and legal care of children and youth as well as the care of the person to whom the child relates most closely to, is ensured during the entire course of court proceedings– from the decision to the filing of the report to eventual lawful guardianship measures and to achievement of claims under civil law. In addition to the trial assistance, the provision of psychotherapeutic assistance may be necessary. Most Bundesländer – especially Styria, Salzburg and Vienna – have cooperation contracts and agreements between the Chamber of Lawyers and youth welfare offices or children and adolescent’s ombudsman system for "trial assistance". In this framework, in the case of child abuse, legal assistance is provided free of charge for instance through arranging ombudsmen for children and adolescents; the "psychosocial assistance" is provided by the child protection centers (Vienna, Linz, Salzburg, Tyrol, Carinthia, Graz, the Möwe Association etc.).
In the interest of the protection of victims, the issue of working with the offender in cases of violence, has become increasingly important in Austria, as the victim of family violence can not be permanently protected from repeated offenses only by punishing the offender. Studies have been published; model projects have been promoted for work with men who have committed sexual abuse offenses, adolescent sex offenders as well as men who have committed acts of violence against women. The fundamental principles and standards for work with offenders in Austria has been elaborated and published.
The final report published in May 2000 on the model project for “Trial assistance in the case of sexual abuse of girls, boys and adolescents” should provide the basis for promoting a high-quality and standardised offer of trial assistance throughout Austria. Therefore, the Federal Ministry for Social Security and the Generations has plans to commission the provision of training to psychosocial and legal trial assistants and the setting up of cooperation structures.
Combating child pornography
At an early stage, Austria committed itself to reinforcing measures to combat sexual exploitation of children and the new international dimension (sex tourism with children; the Internet). Since 1994, not only the production and distribution, but also the possession of child pornography is liable to prosecution (sect. 207a of the Penal Code) in Austria. Within this meaning, the sentence has also been increased (age limits for minors i.e. 14 years of age). Those who produce child pornography are also to be prosecuted for severe abuse of minors depending on the circumstances (sect. 206f of the Penal Code). In order to fight more effectively the formation and expansion of a video market focusing on pornographic materials portraying children, and the sexual abuse of minors connected with it, Parliament passed a specific provision regarding "pornography involving minors" (sect. 207 a, Penal Code) in 1996 (i.e. on 1 March 1997 an amendment to the Penal Code came into force whereby not only the production and every form of distribution but also the possession of pornographic material portraying minors is liable to criminal prosecution).
The new section 207a of the Penal Code imposes criminal penalties not only for the commercial but also the amateur production and distribution of child pornography (non-commercial exchange and black market), thus enacting an absolute prohibition on trade in child pornography. Under this section, all child pornography is considered an offense, i.e. not only real "kiddy porn", but also material giving an objective spectator the impression that its production involved the sexual abuse of a child/minor. Moreover, the legislator considered it necessary to punish the possession and/or acquisition of child pornography. The penalty limit for this offense was increased by the 1997 amendment to the Penal Code. Furthermore, the 1997 Penal Code introduces extraterritorial criminal prosecution not only for engaging in sexual acts with minors, but also for the production and distribution of child pornography (sect. 64 para. 1 of the Penal Code). Austrians, with a permanent residence in Austria, are thus also liable for prosecution in Austria for such offenses committed abroad.
In the fall of 1998, the Council of Ministers agreed upon an action plan to combat child abuse and child pornography on the Internet. It provides, above all, for public security measures, such as setting up a central registration office manned round-the-clock for child pornography (interpol@abacus.at) as well as equipping a search office with the necessary technical equipment. The legal justification for the use of undercover search methods are to be defined and established. The Austrian Internet industry has assumed important obligations: to keep its web free from child pornography; to develop the use by ISPs of a code of conduct for purposes of voluntary self-regulation; the establishment of its own „hotline” (); and close cooperation with industry and government offices (especially through the Internet Advisory Committee in the Federal Chancellery).
The international conference from 29 September to 1 October 1999 organized by Austria within the framework of the EU-US transatlantic dialogue represented the key action in “Combating Child Pornography on the Internet”, adopting the "Vienna Commitment against Child Pornography on the Internet" (stop-childpornog.at) outcome document. This conference was attended by approximately 300 high-level officials of the Ministry of the Interior and the Ministry of Justice from app. 40 countries (incl. all EU members and prospective members, USA, Canada, Asia), international organizations (EU-Commission, EUROPOL, INTERPOL, Council of Europe, United Nations), the industry (Internet Service Providers, such as AOL and ISP associations) as well as non-governmental organizations (part. various „hotlines“). The Conference reflected on the vast benefits of modern technologies, not least for children, but also on the risks of the Internet and the need of protection for children.
In 1998, the “Action Plan to Combat Child Abuse and Child Pornography on the Internet„ was passed, pursuant to the Strafprozeßänderungsgesetz 1996, no. 762 (Criminal Proceedings Amendment Act, Strafrechtsänderungsgesetz 1996, No. 762 (The Criminal Law Amendment Act) of the Federal Law Gazette providing for a more severe sentence for the production and distribution of pornographic material portraying minors, and domestic jurisdiction with regard to sexual child abuse and child pornography was also extended to offenses committed abroad.
As already mentioned, pursuant to the amendment to the Youth Welfare Act, 1998, bodies responsible for youth welfare have the obligation to report any suspicions of neglect, ill-treatment or sexual abuse of minors, with specific reference to the person concerned and in accordance with Section 37 and their professional and legal responsibilities and obligations. Victims of sexual acts are entitled to therapeutic treatment in accordance with the Act on the Victims of Crime; the costs for the treatment shall be borne by the legal social system of the Government.
Extraterritorial Criminal Prosecution against criminal sexual offenses
Since the responsibility for the protection of children´s rights is not merely to be limited to the concern for the well-being of children in Austria, there is a general, human rights responsibility for all children of the world. As the sexual exploitation of children in connection with the phenomenon of „sex tourism“ is constantly on the increase, particularly in the so-called “Third World“ and due to the fact that some countries do not have any really effective legal instruments to fight against regular crimes, an internationally agreed procedure of the Community of States is necessary, based on the assumption that sex tourists systematically seek out those regions where they wrongly believe they are safe from legal prosecution. Various recently occurring alarming incidents, as well as the results of the First World Congress Against the Commercial Sexual Exploitation of Children (Stockholm 1997) indicate a pressing need for intensified cross-border action. For this reason, Austria has extended the provisions of sect. 64 of the Penal Code in its national legislation to provide for liability for prosecution at home, also in the case of sexual offenses perpetrated against children outside of the respective national territory and irrespective of the law in the State where the crime was committed. Now sexual offenses against minors, namely sects. 206 and 207 of the Penal Code (“Severe sexual child abuse”; “Sexual child abuse”) which have been committed outside the national territory irrespective of the laws of the State where the offense was committed, shall be sentenced according to Austrian law and by an Austrian court; moreover extraterritorial prosecution may also be applied for the production or distribution of child pornographic material. This provision did not first come into effect with the Criminal Law Amendment Act 1996, thus expanding already existing possibilities. Pursuant to an additional amendment to sect. 64 of the Penal Code which came into force on 1 July 2000, extraterritorial prosecution was also extended to the offense of exploitative alien smuggling.
In-flight video to combat sexual exploitation of children through long-distance tourism:
“The abuse of children is not a peccadillo”
In support of the legal measures, Austria has carried out an information campaign against the so-called international “sex tourism with child abuse” in cooperation with national airlines, the tourism industry and travel organizers. Based on the awareness that violence against children takes a variety of forms and constitutes a great social concern, the Austrian Parliament requested the Federal Government to intensify measures to combat the sexual exploitation of children, including international cooperation, to combat "sex tourism".
With its „Action Plan to Combat Child Abuse and Child Pornography on the Internet“ (1998), the government of Austria committed itself to denouncing the sexual exploitation of children through the so-called „sex tourism” and providing for its prosecution on an international basis. Towards this end, an in-flight video - “The abuse of children is not a peccadillo” - was produced and documentation concerning extraterritorial criminal prosecution of sexual crimes committed abroad was compiled. This in-flight video should in generally create an awareness among people that sexual aggression to children irrespective of the place where the act is committed (consequently also in exotic holiday lands) should be resolutely condemned and liable to prosecution. In addition, the video should draw attention to the blatant injustice committed to children from developing countries by tourists which for the most part are from prosperous countries of the so-called “developed world”. The on-board presentation of a video during air flights generally to critical destinations, should sensitize travellers to the social-ethical responsibility towards people, especially towards children of the countries visited. A printed documentation component should explicitly address the problem of “sex tourism” with regard to the humanitarian, social, health and legal aspects and should firmly draw attention to the criminal consequences of sexual abuse committed abroad (e.g. the extraterritorial criminal prosecution for sexual offenses committed abroad.)
This in-flight video project was initiated and conceptualized by the Federal Ministry of Social Security and Generations and produced by DoRo - Productions which was further realized in cooperation with the Federal Ministry of Economic Affairs, the Department for Tourism and UNICEF. Austrian Airlines is supporting this project as a major partner, and since the fall of 1999 the airline has shown the in-flight video on board flights to selected “critical destinations.“
This Austrian project was presented at the 1. ECPAT World Assembly in Bangkok, 16 – 20 September 1999, and thereafter at the WTO- General Assembly held from 24 – 30 September 1999 in Santiago de Chile. This initiative reached its high peak, when the in-flight video "The abuse of children is not a pecadillo" won the international award "TOURA D'OR during the ITB at Berlin in March 2001.
The "Code of Conduct"
respect Austria - Centre for Tourism & Development is one of the partners to the project "Code of Conduct of the Tourism Industry to protect children from sexual exploitation" (). The project commits tour operators to raise awareness among the public, their employees, their suppliers (in the home country as well as at the destinations) and the travellers. Each tour operator who has adopted this code must undertake the following: 1. Establish an ethical policy regarding the protection of children against sexual exploitation; 2. Train tourism personnel in the country of origin and travel destinations: 3. Include a specific clause in contracts with suppliers that proclaims a common repudiation of child sex; 4. Provide information to travellers by appropriate means; 5. Provide information to local "key persons" at the destinations.
In April 2001 the Austrian Association of Tour Operators adopted the “Code of Conduct to protect children from sexual exploitation”.
Statement by the Arbeitsgemeinschaft Entwicklungszusammenarbeit (AGEZ) [Alliance for Development Co-operation] (umbrella organization for 29 Austrian non-governmental organizations in the field of development co-operation)
The amendment to para. 64 of the Criminal Penal Code to include the offences of sexual abuse of minors (in force since 1 March 1997) for the purpose of combating the sexual exploitation of children – since then this criminal offence is punishable in Austria, even if it was committed abroad – has been a success in efforts to combat sexual exploitation of children in "third world" countries. There are, however, problems in enforcing this law, particularly as the vast majority of offences never come to the notice of the executive and the prosecutional authorities have great difficulty in preparing an indictment by gathering the necessary evidence owing to the geographical distances involved. For this reason, improved co-operation by the Austrian agencies with the national authorities, relevant NGOs and with international networks of government agencies and NGOs is necessary.
NGOs look after former child prostitutes within the framework of social projects and assist them with leading a better life. The evidence of these prostitutes is frequently crucial to the disclosure of criminal practices in this area, and in the final analysis their help creates public awareness of the problem in their countries and at international level. Support by private welfare organizations and government development co-operation is necessary to promote their work.
One of the causes of child prostitution is sex tourism from the countries in the northern hemisphere, including Austria. A sexist depiction of the „holiday paradise“ in the media or in the prospectuses of the travel industry frequently perpetuates sexist attitudes by certain tourists. In order to proscribe sexual abuse of children, in what way so ever, among the general public in Austria joint commitment and efforts of Austrian NGOs and public authorities are necessary. Commercial artists in the travel industry and the media is called upon to reassess their depiction of the „holiday paradise“ in the light of this problem and to take positive action to educate the public.
Statement by the children’s and adolescents’ ombudsman systems of the Bundesländer
Enactment of a law to aid victims (following the Swiss example) is called for. In addition, free legal representation for child victims of violence and abuse should be guaranteed as well as attendance and support („trial attendance“) and the duration of the proceedings should be reduced. The ombudsman systems also called for the implementation of the demands declared by the Salzburg Working Group „Against Sexual Violence Towards Children“, first published in November 1996, in the areas of prevention, training and further training/networking, protection of the victim at court, work with perpetrators, in the medical field and media coverage.
VI) Sale of Children, Trafficking of Children
Cases of child kidnapping in Austria are extremely rare and take place in exceptional circumstances, such as during quarrels between parents about custody and the exercise of visiting rights by the parent who does not have custody. In Austria, there have been no cases relating to the sale of children, nor are there specific legal provisions in this respect. However, the Penal Code contains a number of general provisions that apply to the phenomenon of the sale of children, such as "Surrendering persons to a foreign power" (sect. 103), "Slave trafficking" (sect. 104) and "Withdrawal of a minor from the custody of a parent or guardian" (sect. 195).
In a session on 6 September 2000, the Council of Ministers approved the signature of the President of the Federal Republic of Austria of the supplementary protocol to the Convention on the Rights of The Child concerning traffic in children, child prostitution, child pornography.
Regulations concerning the prohibition of the prostitution of minors lies in the competence of the Bundesländer; accordingly, in the Bundesländer, individual Acts for the protection of adolescents, vice squad Acts or prostitution Acts, contain provisions concerning the ban on prostituting adolescents.
With regard to the special problem of prostitution of adolescents, the Federal Ministry for Social Security and the Generations commissioned the study "Anyone`s Daughter" (Shaw/Mayer) which should show the level at which adolescents who have drifted into the world of prostitution can be helped. The study researched the reasons, and background behind the prostitution of adolescents with the goal of developing offers of assistance which should assist or make it easier for adolescent prostitutes to leave prostitution.
VII) Training of Police and Security Forces
Training on the topic of sexual abuse
The forces of law and order are among those professional groups which most frequently are called on to handle matters concerning the sexual abuse of children. In addition to other facilities, the “Möwe” child protection center offers training in many regions of Austria for the forces of law and order with regard to dealing with suspicions of sexual abuse. Most of all, the purpose is to foster cooperation between the forces of law and order, youth welfare departments and child protection centers. Among other matters, the training program addresses the legal framework and procedures to be taken. In addition, discussions deal with experience collected in dealing with victims and their families and possibilities for cooperation between the different facilities.
Anti-Discrimination: EU Project "PAVEMENT"
The transnational project PAVEMENT, supported by the European Commission was initiated in order to combat and prevent all forms of discrimination. Austria is participating in this project, along with other member States of the European Union (Italy, France, Spain and Germany). The project PAVEMENT should promote the precursor measures for the successful and efficient implementation of Article 13 of the Treaty of Amsterdam—these provisions call for appropriate warnings against all discrimination due to sex, race, ethnic origin, religion or philosophy of life, age, disability or sexual orientation – through public service companies in Austria and Europe, using the example of the forces of law and order.
The objective of the transnational project is to produce a well-grounded understanding and knowledge of the European dimension of work against discrimination, particularly on issues such as how the forces of law and order can keep from discriminatory behaviour, the creation of the awareness that the forces of law and order are responsible for guaranteeing the implementation of Article 13 of the Amsterdam Treaty, in addition to the development of a multi-dimensional matrix as the instrument for dealing with the problem of the forces of law and order in processing questions and incidence of discrimination.
VIII) Children in Institutions - Maternity pay for all parents
As children in Austria almost exclusively live in a family world, childhood in Austria has traditionally been characterized as a “family childhood”. On 31 December 1997, there were a total of 9519 children – who had been placed full-time in the so-called lawful youth welfare system and thus under the care of public bodies responsible for youth welfare, in other words outside of their family of origin, – 3055 children due to a court order and 6464 children due to an agreement. This form of child upbringing "outside-the-home", especially occurs in cases whereby the well-being of the child can not be safeguarded if the child remains in its family environment. In such cases, children may be raised in a foster family, in a home or in a special facility (e.g. in a "children’s village" or in a social-pedagogical shared apartment arrangement) As a matter of principle, any form of family care is preferred over institutionalised care. For example, with the reform initiative of the city of Vienna - Home 2000 - extensive efforts are being made to end the traditional, so-called "the fate of institutional children". Through the creation of crisis centers in connection with the closing down of child-rearing homes, children torn from their families should be spared as much as possible the loss of their school environment and circle of friends.
Child care institutions - nurseries - kindergarten
The decision to send a child to a care center depends largely upon the child’s age: day care center attendance from infants under the age of one is almost inexistent, at the age of two the level already rises to 3% and by the time the child reaches the age of three the level stands at 12%. At four years old 49%, at five 63% and at six 90% of children are sent to day care facilities. Half-day care facilities are in greater demand and show a much higher attendance.
Only 15.1% (43,200 children) of all 7 to 10 year olds (schoolchildren) attend institutional care facilities at least once a week (besides compulsory school attendance), especially in Ganztagsschulen (all-day facilities) (at 36%), after-school care centers (at 35.2%), other establishments (at 16.3%) and boarding school establishments (at 12.5%), according to a Micro Census carried out in September 1995. Of the 10 to 15 year olds, 15.5% (73,6000) are cared for by some sort of establishment: 44.7% in all-day schools and 27.2% in various other establishments, 18.6% in Tagesheimschulen (boarding school facilities) and 9.5% in after-school care centers (other establishments include facilities such as boarding schools and private institutions). The regional, respectively, the urban-rural differences are significant. An examination of the children aged 6 to 15 shows that in Vienna 29.6%, while in Styria only 8.6% and in Salzburg only 9.5% of these children are sent to some sort of after-school facility. In Burgenland 6-15 year olds hardly visit any after-school care centers instead they make use of other facilities and boarding school establishments. Similar trends may be observed in Vorarlberg; in both these regions the number of children sent to day facilities is significantly lower. All-day schools play an insignificant role in caring for children in Salzburg; they are more widely used in Upper Austria (almost half of all children attending day facilities) and Vienna (at a higher than average rate of all children attending day facilities in total).
Day nurseries
The care of children under three in day nurseries has little tradition. Day nurseries are hardly made use of in Austria, which is due, on the one hand, to the low number of such facilities and, on the other, to the generous maternity/paternity leave for mothers and fathers, who may avail themselves of the two years full (or four years part-time) paid maternity/paternity leave for looking after an infant. Only 5,6% of children under the age of three and 66% of children between the ages of three and six made use of children day care institutions (nurseries, kindergartens) in 1995.
In the scheduling of open hours and holidays of child-care services there is a consistent lack of consideration for parents with children. With regard to opening hours, there are clear regional differences. In Austria almost all nurseries are open all day according to a survey conducted in 1997/1998; of the 434 nurseries (public and private) 427 are open all day, the remaining 7 operate on a half-day basis.
Kindergarten
The question of opening hours is also of particular relevance to kindergartens. Of the 4,553 kindergartens only 2,796 (61%) are open all day; in the capital city of Vienna this number rises to 95%. A further 1,045 kindergartens are only open on a half-day basis and 646 close for lunch; the remaining 66 are only run seasonally. In Styria 21%, in Tyrol 8% and in Vorarlberg 7% of all kindergartens are open all day. A mere 33 of a total of 4,553 kindergartens (ca 0.7%) in all of Austria, offer Saturday and Sunday services.
Extension of child-care facilities through joint action by federal bodies and the Bundesländer
The „Package of Family-Related Measures 1998“ represented additional financial support by the federal bodies in order to promote the extension and support of child - care facilities and more specifically provided funding in the amount of ATS 600 million for each of the 1997-2000 budget years. The joint investment initiative of the federal authorities, Bundesländer and municipalities earmarked an additional ATS 2.4 billion to enable the extension and improvement of child-care facilities by the Year 2000 and enable the extension of opening hours and facilitate the integration of specific services for disabled children. A commission consisting of representatives of the Federal Ministries as well as the city and municipality association of each of the Bundesländer was formed to oversee the allocation of funds and to be in charge of assessing various projects. In 1997/98 almost 19,000 new child-care facilities for children under the age of six were created due to the financial support of the federal authorities. In 1999 and 2000, the federal authorities contributed another ATS 600 million for each year to assist in the extension and support of child-care facilities for the Bundesländer and municipalities.
Maternity pay for all parents
In view of the family situation, there is provision in the government's resolution for the 21st legislative period for increasing the category of those eligible for claiming maternity pay and the period during which it may be claimed ("Maternity pay for all parents"). It therefore follows that maternity pay should be converted into a "child-care allowance", thus recognizing the socially valuable work of parents caring for their own children during the first years of their lives which should be, to some extent, compensated for. At the same time, basic economic security should be secured during the time a large proportion of parents or mothers want to care for their children themselves - and do. Apart from enabling parents to care for their own children from a financial point of view or using additional means to (partially) finance outside child care, due to the many different incentives, it should be easier for the many young parents or mothers who wish to continue in part-time employment during the waiting period to do so. To this end the draft “Child-care allowance Act” was adopted by the Council of Ministers on 28 May 2001.
Statement by Österreichische Kinderfreunde (Austrian Friends of Children)
All children are entitled, as defined in the United Nations Convention on the Rights of the Child, to a place in an educational and care centre for (small) children adequate to their needs. The care of (small) children fulfils an educational mission in conformity with their age and development and offers them a place for social interaction. Holistic education is a prerequisite for character development and is vital in laying the foundations for a person’s quality of life and ability to live with others in society.
Regulations on the quality of teaching, training, equipment and framework conditions are different in the various Bundesländer. The needs of the children, however, do not differ according to the Bundesland in which their parents are living at the time. The Austrian Friends of Children call for a statutory embodiment of a minimum standard to ensure uniform quality throughout Austria.
No child should be denied a place in an educational and care centre on account of the financial situation of his or her parents. Society shares responsibility with parents for children and must therefore jointly make the requisite contribution towards those accredited care facilities for (small) children which supplement care within the family. Parents must be able to choose from a variety of child-care models to suit their requirements and the individual talents of their child.
For these reasons, we call for:
- opening times adapted to needs and lunchtime catering
- size of groups in accordance with the age of the children
- professional training courses and further training of child-care staff
- affordable child-care facilities in all Bundesländer
- uniform standards of quality in all Bundesländer
- saturation development of crèches, kindergartens, works kindergartens, children’s groups, and after-school care centres, child minders and parents’ action groups.
IX) Schools
Education, compulsory and free of charge
General compulsory schooling commences on 1 September following a child's sixth birthday and lasts for nine school years (section 1 Compulsory Education Act 1985).
Compulsory school attendance is in any case and free of charge (section 5 of the School Organization Act). In principle, schools and training possibilities in Austria, from the primary school to the university, are provided free of charge. The provision of financial assistance in case of need is ensured through the School Grants Act; moreover, the contribution calculated for all-day school care may be abolished in particular in cases of hardship. Textbook assistance as well as free school travelling should be seen as financial support; however, a small contribution has to be paid by the parents.
As a rule, students studying at the university will have to pay tuition fees. In order to reduce hardships, students receiving study grants or allowances are entitled to claim full or partial compensation for the tuition fee.
Psychological assistance for pupils in difficulty
Pupils with severe difficulties in behaviour have the possibility of discussing their problems with a school psychologist-educational advisor and are entitled to receive support in dealing with their problems. The school psychological service works for the pupils, the teachers and parents, moreover—to the extent necessary – for the pupil’s family, his classmates or friends. Pupils having difficulties are offered assistance by communication, information and support to recognize their strengths and weaknesses (diagnosis) in order to clarify and formulate problems and to develop future perspectives.
After-school care
The principle of free schooling does not apply to the entire educational program a school offers: therefore schools may charge fees in order to cover afternoon care. It is stipulated that the fees may just cover the actual expenses. The financial capacity of the parents must be taken into consideration (para. 5, section 2 and 3 School Organization Act; para. 14, section 2 Compulsory School Maintenance Act).
In response to the question of the opening hours of after-school centers, it was established that out of a total of 692 after school centers throughout Austria 529 ( = 76 %) offer a full-day program without any interruptions.
X) Child Rights‘ Education in Families and Schools
The rights of the child in family education
Based on the parliamentarian mandate to enact the objectives of the CRC (E-156-NR/XVIII. of 14 July 1994), in general "parental training" is promoted, with the goal of the development of methods and models for a violence free upbringing, for strengthening parental child-upbringing competence in general and for the prevention of upbringing problems and “growing pains” and serves as a primary measure against all forms of violence against children.
The rights of the child in school
In 1999, on the occasion of the 10th anniversary of CRC, “the Rights of the Child” was selected as the main topic within the school program on human relations. In this framework and the framework of the school partnership, information was provided concerning the implementation of the CRC in Austria, the establishment of children and adolescent’s ombudsman systems, the rights of children refugees in Austria, the right to education and the implementation of children’s rights in education and everyday activities at school. Moreover, appropriate training sessions were held on the "rights of the child" for teachers of all school types [April 1999] (Seminar on human rights education with focus on the “rights of the child" with the program of "Interpädagogica 99 – Trade Fair on Education" in Salzburg [November 1999]; the program: "School talks on human rights” included a series of lectures, workshops, discussions etc. on the topic of the rights of the child). In addition, since September 1999, school talks on the topic of the rights of the child within the framework of pedagogical conferences have been held.
Statement by the Austrian Committee for UNICEF, supported by the Ludwig Boltzmann Institute of Human Rights and the children’s and adolescents’ ombudsman systems of the Bundesländer
In accordance with the recommendations of the Committee on the Rights of the Child 1999 (para. 25), UNICEF Austria calls for:
- an increased choice of school activities on the basis of the objectives, principles and contents of the United Nations Convention on the Rights of the Child, in order to strengthen the position of children and adolescents as active and autonomous partners in the family and in their wider social environment;
- incorporation of information on the rights of the child in teaching curricula;
- information about and publication of the Convention on the Rights of the Child in all minority languages in Austria;
- integration of the objectives, principles and contents of the Convention on the Rights of the Child in training and further training programmes for all professional groups working with children and adolescents;
- inclusion of information on the rights of the child in the services offered by the parents’ and family counselling centers.
XI) Juvenile delinquency - juvenile justice
The punishment of criminal offenses committed by juveniles and the special nature of juvenile court trials are regulated in the Jugendgerichtsgesetz 1988 (Juvenile Courts Act). Jurisdiction over juveniles will thus be exercised by specialized court departments at all levels.
Criminal liability in Austria basically starts at the age of 14; children under 14 are not liable to prosecution. Young people under 16 are not liable to prosecution for misdemeanours (i.e. deliberate acts which are punishable by no more than three years of imprisonment, as well as all offenses caused by negligence). Furthermore, the penal regulation for all defendants is also worth mentioning, under which minor offenses and offenses which can be remedied are not liable to prosecution, if, from the aspect of prevention, punishment is not necessary.
The out of court settlement for juveniles has been laid down in the Juvenile Courts Act since 1988 and is applied nationwide. A comparative study of the situation during the years 1994 and 1997 gives the following picture: in 1997 2,727 juvenile court cases were registered nationwide, which corresponds to 9.8% of the number of suspects. As compared to 1994 the figure had increased from 2,360 to 2,727. This has, however, a negligible effect on the increasing tendency (in 1994 9.5% of the juvenile suspects, in 1997 9.8%) jointly caused by the increase in the number of juvenile suspects (24,966 in 1994 and 27,693 in 1997). In conclusion we can notice a slight increase in the recourse to this instrument of out of court conflict settlement with an increasing potential of waiters for such an intervention. We can notice a very different use of this instrument in the 4 parishes of the Provincial High Court. Whereas Vienna, Graz and Innsbruck lie next to one another, Linz shows a peak in its use (with 14.3% of the juvenile suspects). Innsbruck (9.6%), Graz (8.4%) and Vienna (7.6%) follow on a much lower scale.
Apart from the special case of the conditional cessation of proceedings (acc. to sect. 17-19 of the Juvenile Courts Act) which statistically is not sufficiently documented, in 1997 probation service was rendered nationwide to 1,321 juveniles who had not yet completed their 19th year. This corresponds to 4.8% of the number of suspects. Whereas in 1994 the possible links to the imposition of Probation were relevant to 29% of the suspects, in 1997 they reached 35%. The increasing use of probation as alternative to lawsuit or penalty is reflected in the number of the juvenile suspects: thus the number of indicted persons under 19 who get probation instead of penalty increased from 4.2% to 4.8%.
In 1997 a total of 4,392 juveniles obtained interventions by social workers, with the express intention of avoiding a penalty. 16% of the suspects under 19 thus received from the Ministry of Justice offender assistance before of a sentence was passed. This shows an increase with respect to 1994 (14%), which means that the degree of confidence of the Ministry of Justice in the effectiveness of offender assistance could be increased. When offender assistance during juvenile court proceedings is used as an alternative to ‘stricter’ judicial reactions, this is mostly to avoid a formal sentence. Out of court settlement, probation and conditional care total up to 77% of the offender assistance cases aiming at the temporary cessation of the proceedings. The use of offender assistance with juveniles can basically be considered as a renunciation of penalty. (Assistance to Suspects in Austria, 1997; Research Report of the Institute for Legal and Criminal Sociology, Vienna 1999).
Reform of Juvenile Criminal Law
The lowering of the age of majority in civil law from the age of 19 to 18 gave rise to the pressing issue of whether the upper age limit for the application of juvenile criminal law should also be lowered by a year, since the intended increase in this age limit under the Jugendgerichtsgesetz (Juvenile Courts Act) 1988 was also justified on the basis of equivalence with the age of majority of 19 prevailing since 1973. On the other hand, it is generally recognized that "juvenile" crime – which has always tended to rise dramatically between the ages of 18 and 20, only to fall again – by no means indicates the beginning of "careers in crime", on the contrary it is the expression of passing difficulties in adjusting to the world of adults (so-called adolescent crisis), which as a rule is soon outgrown. According to criminological findings, the correct response to such phenomena of fleeting infringements of the legal system is not penalties with their far-reaching effects, but restraint, in order not to unduly affect the future chances in life of young adults by branding them as criminals. This would have a counterproductive effect, given the preventive aims of criminal law.
A special parliamentary bill provides for the following amendments on the basis of these two fundamental premises:
lowering of the upper age limit for the application of juvenile criminal law from the age of 19 to 18;
creation of individual special provisions in the penal code for the treatment under criminal law of persons under the age of 21 (in particular exemption from life imprisonment, reduction to a minimum of the most severe threats of punishment to a five-year or one-year sentence, extension of the special mitigation of sentence in cases where maturity is wanting);
extended application of the procedural special provisions of the Juvenile Court Act.
XII) Violence and the Media
Priority efforts for the protection of adolescents from "media influences" is to exhaust and strengthen as required, legal means for restricting the dissemination of violent action and violence in enticing representations, texts and games in the mass media, for video and computer games: TV programs which could severely damage development of minors in physical, intellectual or moral manners are completely prohibited; programs which are “dangerous for youth” are to be accordingly identified.
Already in 1997, an official office was established to combat child pornographic representations and forms of nazism revival activities ("infomaster@bmi.gv.at"), and the "advisory body for Internet and new media" represent a coordinating body for the implementation of recommendations on "youth protection and protection of human values in audiovisual and information services” at the national level.
The problematic nature of obtaining acceptance for issues relating to national legal protection of children and young people in the light of global communication systems, such as the Internet, was discussed in Vienna on 20 April 2001 in the parliamentary inquiry entitled "Internet & the Legal Protection of Children and Young People – a Challenge".
XIII) Substance abuse - Alcohol, Nicotine, Illicit Drugs
Alcohol and nicotine are not considered illegal substances in Austria. According to the results of the WHO study on the "Health Behaviour of School-Aged Children (HBSC)", Austria leads in Europe with regard to regular consumption of alcohol among adolescents (at least weekly) (see Uhl et al., Alcohol Handbook - Austria 1999, published by the Federal Ministry of Labour, Health and Social Affairs, p. 96 mwN). Based on available statistics published in the Alcohol Handbook, 20% of adolescents aged 16 –17 already demonstrate problematic alcohol consumption behaviour. The Federal Ministry of Labour, Health and Social Affairs has prepared targeted, structural and preventive measures for alcohol prevention for the year 2000.
Regulations concerning smoking tobacco and drinking alcohol amongst children and adolescents lie within the competence of the nine respective Bundesländer; for this reason, the regulations are not consistent. The regulations for Industry (Trade Regulations) throughout the Bundesländer of Austria merely refer to the youth protection provisions of the Bundesländer. These provisions, however, are required to be openly displayed by businesses in the hotel and catering industry. Smoking and alcohol consumption in general and in public amongst children and adolescents are generally prohibited up to the age of 16. Spirits may not be consumed in public by children and adolescents under the age of 18 (in one Bundesland, under the age of 16). The sale of alcoholic beverages to adolescents for adult consumption outside of public houses is permissible.
The introduction of the Tobacco Law (Federal Law Gazette No. 1995/431) took account of the harm caused by tobacco products to health, in particular to that of children. The following warnings must be printed on the tobacco products, "Smoking endangers your health", and other warnings must be printed on an alternating basis (i.e. "Smoking damages your child's health even during pregnancy", „Smoking damages your health with others.“) In addition, there are now restrictions on the advertising of tobacco products. Billboard advertising of tobacco products is not allowed in the direct visibility range of schools and youth centers, advertising tobacco products is generally prohibited in cinemas during performances suitable for young people, as well as on television and radio. It is also forbidden to advertise tobacco products specifically for young people (and advertising through popular figures, leading athletes and VIPs) and to distribute advertising articles to children and young people in connection with tobacco products. For the protection of non-smokers from passive smoking - smoking has been banned in rooms used for instruction, training and negotiating purposes, as well as school sports activities, and in public buildings, schools or other premises where children and adolescents are supervised or accommodated.
Since children and adolescents require special protection from the dangers resulting from the abuse of drugs and psychotropic substances, various preventive measures have been taken in Austria in addition to the provision of legal protection.
Children and adolescents require special protection from the danger of Substance Abuse. Additional substances and drugs that have psychoactive effects on the central nervous system (the so-called psychotropic substances) have been added to the list of prohibited narcotics under the Suchtmittelgesetz (the Narcotics Law), Federal Law Gazette I No. 112/1997. In Austria a number of measures have been implemented to prevent drug abuse among children and adolescents and its development into an addiction. Appropriate help and support is also offered in the case of problematic consumption of drugs. The drug policy in Austria is primarily based on the following four main areas:
Prevention
Abstinence-oriented therapy
Limiting risk through substantive measures and minimum offers of care
Penalties for drug dealing, in particular for large quantities of substances.
To combat drug addiction, the authorities are applying a method called "Therapy instead of Punishment": Primary addiction prevention is considered to be one of the most important aspects of addiction prevention. Primary preventive measures have been set up on the basis of the WHO concept of the promotion of health at various settings – starting already in kindergarten, in schools, within the context of the extracurricular youth work, on the job etc. Moreover, children and adolescents with addiction and drug problems have a wide range of counselling, treatment and care services available to them (in-patient facilities for physical withdrawal, short-term and long-term therapy such as drug clinics and counselling offices) with appropriate options for health-related measures which are widely available. Lastly, the importance of promoting, the (re)integration of drug addicts and former drug addicts into society should not be overlooked.
Measures under criminal law
Drug abuse and drug dealing are offenses punishable under criminal law. If legal proceedings are instituted against an individual for purchasing or possessing a "small quantity" of drugs, for personal consumption, then the public prosecutor shall temporarily drop the charge for a probationary period of two years. As far as necessary, he shall make the temporary dropping of charges subject to the individual undergoing health-related measures or receiving counselling from a probationary officer. If this does not concern a "small quantity for personal consumption", but also not a "large quantity" of an addictive substance, then charges may temporarily be dropped under certain conditions; this also applies in the case of typical cases of provision- and procurement-related crimes in connection with drug addiction (forgery or theft of medical drug prescriptions etc.) if they do not concern a serious offense. If the individual does not persistently stop undergoing health-related measures within the probationary period and does not commit another similar offense within the probationary period, then the charges temporarily dropped are done so permanently. In addition, even after a sentence has been pronounced, the judge has the possibility of suspending the execution of an unconditionally pronounced prison sentence, under certain conditions, for a maximum period of two years during which the addict undergoes the necessary health-related measures. If this is successful, then the court shall convert the unconditional prison sentence under the terms of a probationary period to a conditional one, so that the addict, following successful treatment, must not undergo imprisonment.
The cultivation and processing of plants for drug production are strictly prohibited; violation of these laws is punishable by heavy fines. Production, import and export, purchase and possession of drugs, as well as the entrustment or distribution of drugs to others, are punishable by law with sentences of up to six months or fines (for minor offenses) up to 20 years’ imprisonment (for serious drug offenses).
Every form of public propaganda encouraging drug abuse is illegal under section 29 of the Narcotic Drugs Act. If an adult who is more than two years older than the "seduced" minor facilitates the minor's drug abuse, he/she faces up to three years' imprisonment (sect. 16, para. 2, No. 1). Likewise, persons who conduct "small deals" as a source of income or as members of a gang are also liable to punishment. Individuals who purchase or who are in possession of a "large quantity" of drugs can be sentenced to up to three years' imprisonment if the "stuff" was intended for resale.
Even the mere conspiring and teaming up of one or more interested parties for the purpose of common drug dealing ("two-member", "three-member", "four-member" gangs, etc.) are enough to warrant up to five years' imprisonment.
To fight the professional drug trade more effectively, stiff penalties such as up to five years' imprisonment have been introduced for the production, import or export, and sale of "larger quantities" of drugs. If dealing is a steady source of income for the dealer or if he/she is a member of a drug ring, he/she faces up to 10 years' imprisonment. If the dealer is only doing "big business" to satisfy his/her own drug needs, the prison sentence "only" ranges up to five years.
Active members of a dealer gang previously convicted and committing a further offense, members of a drug cartel and big dealers (excessive quantity = a 25-fold quantity). The Narcotic Drugs Act provides for the punishment of cartel bosses with prison terms of between 10 and 20 years. The 1993 Criminal Law Amendment Act provides an additional tool in the fight against the international drug trade. In accordance with this Act "money laundering" organizations are to be steadily prosecuted and the persons involved rigorously punished.
In addition to criminal prosecution by law, drug abuse will also be counteracted by considerably increasing information available in schools and through emergency helplines for drug addicts ("Drug lines"). Drug addicts receive the necessary medical counselling in specialized drug clinics. In addition, attempts are being made at reintegrating children and adolescents addicted to illegal and prescription drugs into drug-free life in half-way houses and special projects ("Green circle"). A drug monitoring station (Suchtgiftüberwachungsstelle) has been established in the Federal Ministry of Health, Sports and Consumer Protection, where reports can be recorded centrally of all persons who have violated the Drug Act, with the exception of individuals who voluntarily undergo therapy.
In 1994 the Federal Ministry for Youth started a project with the aim of establishing additional preventive approaches in extracurricular youth work. By accompanying children and young people in the critical period, when they are searching for an identity, an important contribution can be made to preventing addiction. Primary addiction prevention in particular is not regarded as a form of protection pedagogy in this context, but rather as a means of making existing personal and structural resources visible and expanding them. As well as the training of multiplicators, above all parents, relatives, teachers, educators and youth leaders, in the field of primary addiction prevention, a research project is currently being conducted concentrating on the onset of child and adolescent addiction, addictive behaviour, and economic and social influences.
In the light of the alarming developments on the drug scene, the Vienna Health Administration declared 1995 to be the Year of Addiction Prevention. Within the framework of this project, a specially-designated local office provides courses at the municipal public health department by teachers, tutors, social workers, and firm representatives for the purpose of improving drug prevention and coordinating the work of existing therapy institutions. Finally, a team of specialists at a Vienna children's clinic offers specific assistance to addicted pregnant women and their addicted babies.
On entry into force of the Narcotics Act (Suchtmittelgesetz (SMG)) on 1 January 1998, the Federal Law Gazette I No. 112/1997, a regulation regime was also established for psychotropic substances and precursors in contrast to the 1951 Narcotics Act (SGG) in effect up to that time. At the same time, the existing statutory penal provisions for drugs in effect up to that time were restructured (sects. 27 to 29 (SMG)) as well as new statutory penal provisions for psychotropic substances (sects. 30 and 31 SMG) and for precursors (sect. 32 SMG) were established. On the whole, it permitted the ratification of new regulations in 1997, as well as the Psychotropic Convention in 1971 and the Vienna Convention in 1988.
In 1999, legal proceedings were initiated by judicial authorities for 17,211 persons regarding violations of the statutory penal provisions of the Narcotics Act. As compared to 1998, this figure represents an increase of 3.5%. A comparison of the regional differences in individual Bundesländer shows a drop in charges was reported: Salzburg (-19.2%), Upper Austria (-16.27%), Burgenland (-14.69%), Lower Austria (-5.46%) and Tyrol (-2.84%), whereas in the remaining Bundesländer an increase between 2.95% and 61.54% (Vorarlberg) was noted: (Styria: 40.31%); in the federal capital of Vienna the increase amounted to 2.4%. Since 1995 a continuous decrease in the number of drug victims has been noted. Thus in 1998 a total of 162 drug victims was reported, whereas in 1999 the figure increased to 174 (including 126 men; 48 women). The youngest drug victims included three 15-year-old, four 16-year-old and two 17-year-old adolescents. While the number of drug victims under the age of 20 increased significantly from the previous year, from 8 to 19, it decreased from 67 to 54 for the age group of 20 to 29 years. Furthermore, the number of victims increased from 53 to 77 in the age group of 30 to 39 years, and decreased in the age group of over 40 years from 34 to 24. The percentage of female drug victims under the age of 20 increased noticeably in comparison with the previous year (1999: 68.42%, 1998: 0%, 1997: 35%):[1]
|Number of drug victims in Austria according to age groups and sex |
|Age group |1989 |1990 |1991 |1992 |1993 |1994 |1995 |1996 |1997 |1998 |
| | | | | | | | | | | |
|up to 19 years |7 |5 |2 |12 |14 |13 |14 |10 |12 |5 |
|20 – 24 years |17 |16 |19 |21 |28 |22 |16 |20 |22 |25 |
|25 – 29 years |35 |25 |31 |23 |17 |17 |19 |16 |15 |16 |
|30 – 34 years |27 |33 |34 |25 |25 |26 |26 |24 |19 |16 |
|35 – 39 years |10 |19 |11 |13 |14 |17 |17 |20 |17 |17 |
|40 and over |4 |2 |3 |6 |2 |5 |8 |10 |15 |21 |
|TOTAL |100 |100 |100 |100 |100 |100 |100 |100 |100 |100 |
|females |- |17 |21 |18 |17 |16 |19 |16 |17 |15 |
|male |- |83 |79 |82 |83 |84 |81 |84 |83 |85 |
Figures in percentage Source: BMAGS/Dept.VIII/B12. In: Drug Report (Drogenbericht) 99, .80
With regard to the consumption experience of adolescents, synthetic drugs have gained in significance in recent years. When adolescents were asked about their consumption experience, it was found that „ecstasy“ was the second most frequently used drug, whereas cannabis was first. However, no diversified market with regard to synthetic drugs was noted. The results of toxicological tests carried out at raves are a cause for alarm, as the "ecstasy" tablets sold often contain other substance ingredients and an increasing number of pure amphetamines. A study commissioned by the Health Department for completion in the fall of 1999 should show the correlation between participation in various youth cultures and drug consumption among youth, especially concerning "ecstasy" and designer drugs, and therefore provide the basis for adequate, future primary preventive measures.
In 1999, no significant change in the trends related to the status of organized drug trade could be determined. As in the past, the Republic of Austria is not a supplier country for narcotics. Organized drug smuggling to supply the internal, illegal Austrian markets as well for transit, especially to other Western European countries, is mainly carried out by foreign criminal groups established along the main smuggling routes. In contrast, Austrian nationals are only involved to a limited extent in organized drug smuggling. With the exception of individual cases particularly in the area of cocaine smuggling, the involvement of Austrian nationals in the smuggling and illegal trading of narcotics is primarily limited to relatively small quantities for personal consumption.
With regard to the State obligations laid down in Article 33 concerning for the provision of protection from drug consumption and drug abuse, above all by drug prevention measures, the Federal Ministry of Education and Cultural Affairs has carried out a study conducted for all of Europe under the auspices of the Institute for Health Psychology (Institut für Gesundheitspsychologie) of the Ludwig Boltzmann Institute and reviews efficient parental support measures in the area of health prevention (drugs, violence, school problems etc.). Children and adolescents require special protection from the danger of drug abuse.
Statutory measures for the protection of school children from drug abuse
Under the terms of the Narcotics Act, (SMG), the Federal Law Gazette I, No. 112/1997, additional substances and prescriptive drugs with psychoactive effects on the central nervous system (the so-called psychotropic substances) have been added to the list of prohibited drugs. In Austria, a variety of measures have been taken to prevent drug abuse and development into drug addiction among children and adolescents. Furthermore, help and assistance are offered for problematic drug consumption. Appropriate measures and programs for schools will be organized by school authorities. In accordance with Section 13 of the Narcotics Act (SMG), it may be pointed out that preventive thinking is first and foremost, in the case of children determined to be abusing drugs. If the suspicions of drug abuse are confirmed for a pupil and the pupil is undergoing the treatment provided under the Narcotics Act, then there is no reporting to the health authorities and therefore also no reporting to the prosecuting authorities or to the police.
Sect. 13 para. 1 of the Narcotics Act (SMG) contains a provision explicitly related to drug abuse among pupils: If, on the basis of certain facts, a pupil is suspected of drug abuse, the director of the school shall submit the pupil to a medical examination by the school doctor. The school psychology service is to be consulted if necessary. If the examination reveals that health-related measures in conformity with sect. 11 para. 2 are necessary and this can not be ensured or if the medical examination by the school doctor or the consultations with the school psychology are refused by the pupil, the parents or other persons legally responsible for a child, then the school director must notify the reporting offices of municipal and health authorities. A comparable procedure is to be followed in the case of suspicion of drug abuse among those performing their military service.
In its review of drug prevention in schools, the IFES-study [1999], shows that parents were satisfied with the work of teachers in this area. In 1998, at the initiative of the Federal Ministry of Education and Cultural Affairs, a „NO DRUGS„ Anti-Drug Campaign was launched in Austria, with the objective of providing adolescents with continuous supply of information and awareness of the danger of drugs. In addition to class work, this project included conferences, seminars and a training course for teachers, information evenings for parents, talks held by experts and information seminars for pupils, in addition to complimentary measures taken by the school such as watching out for cigarette smoking, providing information on drugs or contests: „Be smart - don’t start”.
In the area of school addiction prevention, special priority is especially placed on the question of how children start drinking alcohol as well as start taking soft and hard drugs. A present study of adolescents in Upper Austria confirms other studies with similar results: the abuse of alcohol and illegal drug consumption by parents, increases the risk of alcoholism and drug abuse among children. 35% of the adolescents smoke on a daily basis or several times a week, while 24% drink alcohol on a daily basis or several times a week. Experience with nicotine and alcohol continuously increases with age. Moreover, there is a significant connection between drinking and smoking behaviour: 63% of the youth who smoke at least 20 cigarettes a day, also drink alcohol on a daily basis or several times a week. Concerning the non-smokers, „only“ 21% of the youth consume alcohol. The studies shows that the probability of frequent alcohol consumption is three times higher among those who are addicted to cigarettes. Concerning the consumption of illegal drugs, cannabis ranks first consumption-wise. 13.6 % of 13- to 18-year-olds have tried cannabis products at least once, 5.6% of the adolescents in Upper Austria smoke hashish on a regular basis.
The study indicates further that the risk of taking drugs is significantly lower, when parents are informed about how their children spend their leisure time. Likewise, the behaviour of parents as role models plays an important role in the drug consumption of their children. Sports also have a positive effect on lower drug consumption behaviour. Only 9% of adolescents who play sports on a regular basis, touch cigarettes. 30% of the adolescents who do not play sports are smokers.
The third report on the situation of youth in Austria, 1999, arrived at the following conclusion concerning the illegal consumption of drugs among adolescents: The emergence and spread of ecstasy empirically shows a considerable change in drug consumption patterns of youth in recent years. No relevant data exists concerning the spread of the so-called party drugs (i.e. amphetamines, hallucinogenic mushrooms, laughing gas, poppers etc.). However, there are indications that there is a slight „shift“ in the consumption of illegal substances. There seems to be a general tendency away from opiates, in favour of ecstasy and cannabis among adolescents (cf. IFES 1997) and therefore, a development towards less risky consumption behaviour. The increase in drug victims noted in the early 1990s was to a lesser extent due to an increase in drug consumption. On the other hand, it was related to an increase in the opiate dosage leading to fatal accidents; additionally a portion of the increasing numbers could be traced back to AIDS-related deaths (cf. Haas 1996, p. 39).
In almost all Bundesländer, an office specialized in addiction prevention has been set up to primarily focus on matters concerning coordination, promotion and development of drug addiction programs, networks and projects. A project commenced in 1994 for preventive approaches in extracurricular youth work in cooperation with the Youth Ministry and the Youth Department of the respective Bundesland entitled: „Educational Fund for Addiction Prevention“ is still continuing today. „A multitude of national as well as international seminars, conferences and continued education as well as publications, etc. serve discussions concerning youth-related work activities with topics such as networking of the different organizations and bodies. In 1999, „The Education Fund“ („Bildungsbörse“) was renamed the Educational Forum for the Promotion and Prevention of Youth Work (Bildungsforum für fördernde und präventive Jugendarbeit) and currently is involved with a wider range of dangers such as violence, AIDS, sects and debt.
In addition to the care provided by the Social medical service and the drug counselling (youth assistance service, Akzente Salzburg is running a addiction prevention office which offers information and care to different target groups, as well as for school and peer projects. The handling of the problem area of „Drugs, Addiction“ in the Bundesland of Salzburg and with relevance to the implementation of the Convention on the Rights of the Child, efforts are essentially concentrated on two areas:
Prevention
Preparation of adequate youth care alternatives
Following broad and intensively held discussions concerning effective ways to prevent addiction and appropriate preparatory work, in 1996, Akzente Salzburg, a professional office for the prevention of drug addiction was opened. This office mainly focuses on primary prevention. Since its beginnings, the professional office has taken a general health assistance approach, and has initiated, supported and followed up drug addiction prevention projects throughout the country. Certain projects were geared to the target group of children and adolescents, whereas other projects offered relevant training to parents and multiplicators from the school and outside school spheres. Based on current experience, in the future there will be an extension of the activities of the professional office. In addition, greater emphasis will be placed on secondary preventive measures in the area of drug addiction. Relevant, conceptual preparatory work for such programs for children and youth, with an increased vulnerability to addiction are already running in cooperation with drug coordination centers, the youth welfare centers and professional centers.
Offer of care: Basically since the mid-nineties, the number of adolescents trying out and experimenting with cannabis and the so-called party drugs, has increased considerably, even in rural areas. As a result of this development, the Bundesland of Salzburg has further regionalised advisory and care services: Drug advisory offices were opened in the districts of Zell a. S. and St. Johann in the spring and summer of 1999 under the responsibility of the youth assistance services which already ran such facilities in the city of Salzburg and Hallein. In the case of adolescents with already a high degree of abuse or addiction problems, it is necessary to offer age-specific medical care in the context of outpatient and inpatient services. Relevant planning considerations and conceptualisation work have commenced recently.
Statement by Österreichische Kinderfreunde (Austrian Friends of Children)
Alcohol consumption is a general social and primarily male phenomenon, with the attitude to consumption of alcoholic beverages revealing a low level of awareness of the concomitant problems. Ever more and increasingly younger children are taking to alcohol against the backdrop of the widespread social tradition of drinking alcohol in Austria – at least 18.3 per cent of Austrians regularly drink large quantities of alcoholic beverages. In particular, male adolescents in rural areas and young people from the underprivileged sectors of society with few educational opportunities are especially at risk. Lads feel themselves to be „real men“ when they start boozing. They race each other at drinking to prove themselves to one another; the one who can hold the most drink is the coolest. For adolescents drinking equates to an initiation rite into the world of adults.
Consumption of alcohol by adolescents is increasing dramatically; 12 year-olds are already consuming hard drinks. Austria is at the top of the league table in Europe in this respect. The problem does not lie with the children and adolescents but in their social surroundings as alcohol is not acknowledged to be a drug. If alcoholism is to be prevented, living conditions in the family, school, leisure and work must be improved.
For these reasons the following is called for:
- strict compliance with the Youth Welfare Act: no public sales of alcoholic beverages to adolescents under the age of 16; stringent checks;
- strict compliance with trade regulations: every restaurant or bar is obliged to sell at least 2 non-alcoholic beverages at no higher a price than the cheapest alcoholic beverages on offer („adolescent drinks“); stringent checks;
- provision of adequate leisure activities for adolescents; adolescents require activities where they can meet in places other than pubs. Youth centers, youth venues, sports and leisure centers, affordable music and cultural activities for adolescents in rural areas, too;
- availability of disco and nightline bus services. Public transport must run at the weekends throughout Austria, also during night time (Fridays and Saturdays, e.g. Burgenland, Vienna ...);
- increase awareness by educating parents. Youth welfare regulations only regulate alcohol consumption in the public sphere. Parents are responsible for whatever children and adolescents drink when they get together in private. Parents require a sense of tact in this connection. At parent training seminars parents can compare notes, reflect on their behaviour and develop strategies.
XIV) Health and Physical and Mental Integrity of Children
Austria provides for a comprehensive health-related action programme for mothers, pregnant women, fathers and children.
The ever important health objective of reducing the rate of infant and child mortality requires an extensive preventive health-care system. The prime condition for the success of therapeutic measures („early encouragement“) is the earliest possible detection of a disability or development disorder, so that possible health hazards for the unborn child, the infant of the small child can be detected and remedied at an early stage. To ensure that these services are used as early as possible and the necessary medical intervention can be carried out, the so-called „mother-child pass“ (a medical examination programme) was created to get parents to make use of these possibilities – even without obvious reasons.
Once the pre-natal examinations intended for the mother-child pass have been carried out and the child has reached its first birthday, then the parent who has been taking care of the child born after 31 December 1996, is entitled to a mother-child pass bonus of ATS 2,000. The parent’s residence must be in Austria and the child has to be within Austria at all times. The child or the parent living with the child must have the Austrian citizenship, which however will be renewed just before the child’s birthday if the parent has lived in Austria constantly for three years. The taxable family income must not exceed a certain set limit during the first year after the birth of the child. Special rules apply for citizens of the European Economic Area and the European Union.
In 1999 the infant mortality rate stood at 4.4 per thousand showing a decrease of 9.3% compared to 1998. The Bundesland Vorarlberg showed the highest infant mortality rate during the period reviewed at 7.2 along with Vienna and Lower Austria both showing 5.1 per thousand live births. In Salzburg and Burgenland only 2.7 of 1000 live-born children died before they reached their first birthday. The remaining Bundesländer showed a rate of 3.3 (Styria) and 4.3 per thousand (Upper Austria). The rate of those infants who died within the first week or weeks after birth stood at 2.0 respectively 2.3 per thousand. The rate of stillbirths remained unchanged at 4.0, the post-natal mortality rate (stillbirths and those who died within the first weeks after birth) dropped to 6.1 per 1000 births.
Infant mortality rate from 1974 – 1999 per 1000 live births
|1974 – 23.5 |1980 – 14.3 |1990 – 7.8 |
|1975 – 20.5 |1981 – 12.7 |1991 – 7.5 |
|1976 – 18.2 |1982 – 12.8 |1992 – 7.5 |
|1977 – 16.8 |1983 – 11.9 |1993 – 6.5 |
|1978 – 15.0 |1984 – 11.4 |1994 – 6.3 |
|1979 – 14.7 |1985 – 11.2 |1995 – 5.4 |
| |1986 – 10.3 |1996 – 5.1 |
| |1987 – 9.8 |1997 – 4.7 |
| |1988 – 8.1 |1998 – 4.9 |
| |1989 – 8.3 |1999 – 4.4 |
The mother-child examination programme
The mother-child-pass bonus was first granted in 1998 for children born in 1997. The mother-child-pass examination programme ensures intensive health care for mothers-to-be and for children up to the age of four; the examinations are conducted by registered physicians as well as in child-welfare centers (in Vienna: parent counselling facilities) and are often granted even beyond of the programme’s range. An extensive range of information on infant care and nursing, infant care classes, parent classes and mother consultation classes is offered to pregnant women as well as parents in the Bundesländer and municipalities. About 95 % of children and pregnant women took advantage of these examinations after the introduction of the mother-child pass but before the removal of the – formerly generous – birth subsidy, this figure however has been reduced by 10%. Letters are sent directly to the parents of infants as well as to parents with children aged 1, 2 or 3 reminding them of due mother-child pass examination appointments, in order to achieve the highest possible number of participants in the programme.
Preventing Disease through Vaccination Strategies
Basically, preventive vaccination is organized on a voluntary basis in Austria. However, appropriate recommendations for general vaccination schedules are printed in the mother-child pass. The following vaccinations are recommended:
|A 1: 3,4,5 months (4,5 months if without |Diphteria-pertussis-tetanus (DPT), may also be| |
|pertussis) |without pertussis | |
|A 2: after 3 months |Haemophilus influenzae b | |
|A 3: after 4 months |Polio oral | |
|A 4: after 14 months |First measles-mumps-rubella vaccine | |
|A 5: 15-18 months |Diphteria-pertussis-tetanus (DPT) booster |If no basic DPT immunization: only: diphteria-|
| | |tetanus booster |
|A 6: 7 years |Polio oral booster diphteria-tetanus booster | |
| |with diphterie toxoid in reduced antigen dose | |
| |(Td) second measles-mumps rubella (MMR) | |
| |vaccination | |
|A 7: 13 years |MM Rubella vaccination for girls | |
|A 8: 14 – 15 years |Booster (e.g. polio oral diphteria-tetanus | |
| |booster with diphteria toxoid in reduced | |
| |antigen dose (Td) | |
The vaccines against tuberculosis, diphteria-pertussis-tetanus, polio and measles-mumps-rubella are provided free of charge. Public vaccinations are carried out in public health centers, child-welfare centers, schools and by doctors commissioned by the Public Health Board. Within the scope of liability for vaccination damage, the Government covers any damage to health caused by a vaccination recommended by the Federal Ministry of Health (vaccinations against diphtheria, tetanus, whooping cough, polio, measles, mumps, rubella, Central European encephalitis, Haemophilus influenzae) with respect to all costs of medical treatment, for drugs and medicines, for orthopaedic care and for care and treatment in hospitals or sanatoriums.
Since 1998 a widespread vaccination programme has made it possible to provide all Austrian children free of charge until the end of their school years with the vaccinations recommended by the Obersten Sanitätsrat (Highest Medical Committee) (Vaccinations against polio, diphtheria, tetanus, pertussis, measles, mumps, rubella as well as vaccinations against Haemophilus influenzae type b and against the hepatitis B virus). Vaccination awareness was strengthened in 1998 by the launch of a nationwide vaccination campaign.
Statement by the Austrian Committee for UNICEF
Protection of female integrity – protection from FGM
Female Genital Mutilation (FGM) is one of the gravest violations of human rights faced by girls and women. It represents a serious encroachment on their physical and mental integrity, and self-determination. There are also serious health risks involved and it is altogether the expression of a discriminatory exercise of power on the basis of gender-specific attributions.
For these reasons, UNICEF Austria calls for preventive measures based on information and education as well as rehabilitation measures by establishing and supporting emergency (psychological) care and protection centers for the girls and women affected.
XV) Child poverty
In 1999, the Federal Government of Austria established the so-called "family package", to on the one hand to provide increased financial support to families with the goal of the reduction of families at the edge of poverty. On the other hand, the aim was also to identify the reasons for the drop in the birth rate in order to research adequate counter-measures.
According to the Report entitled „Integration Instead of Isolation – New Strategies to Combat Poverty“ [1999] by a working group of experts, 8 per cent of children are living on the edge of poverty. Furthermore, people in households with children comprised two thirds of the people living in poor households. According to the household panel, of the poor people in households with children, approx. 65,000 live in single parent households; 65,000 live in households with at least two adults and one child; approx. 70,000 in families with two children, and approx. 80,000 in families with three children. A breakdown of the figures according to the number of children per household shows that there are approx. 110,000 people living in households on low incomes with one child; approx. 90,000 in households with two children, and approx. 80,000 in households with three children.
It emerged from an OECD study [1998] that efforts made in Austria to reduce child poverty during the period when this report was being compiled, were outstandingly successful. By international standards, Austria ranks second after Luxembourg with regard to the family support system, taking the jobs of both parents into account. With regard to the support of single-income households, Austria ranks fifth after Iceland, Luxembourg, Belgium and Germany. Despite this generous system of family and child benefits (Annex 1, Table 16), which was also acknowledged as such by the Steering Committee on the Implementation of the Rights of the Child, the Austrian Federal Government implemented a comprehensive reform in accordance with the requests expressed in Point 24 of the Concluding Observations concerning support for families with children. This reform improved the financial situation of families in two stages in 1999 and 2000 respectively. The subsequent so-called „Family Tax Reform 2000“ which gave families additional benefits has undoubtedly further consolidated Austria’s ranking by the OECD.
Based on a judgment of the Constitutional Court in 1997, family taxation was reformed, and the resulting increase in family benefit and child-related tax allowance means that the average cost of a child’s keep (subsistence level) is henceforth tax free. Based on average maintenance costs, the same level of tax relief for all families and the retention of the child-related tax allowance (as negative tax) which is moreover directly payable to the parent looking after the child or children, the higher level of tax relief for higher income families intended by the judgment of the Constitutional Court of 17 October 197 [G 168/96-36] was averted and instead low-income families with children enjoy proportionally higher tax relief. This type of tax allowance for payments of maintenance for children is a social and political milestone since it respects the right of the child to have his or her basic needs secured financially.
Statement by Katholische Jungschar Österreichs (Catholic Youth of Austria)
Catholic Youth of Austria as the largest children’s organisation in Austria sees itself as a mouthpiece for children. A mainstay of the organisation is "lobbying in the interests of children" to provide impetus for a child-friendly society. In this connection, child poverty, as defined in Article 27 of the United Nations Convention on the Rights of the Child, is a major concern.
As a result of the situation prevailing at present in Austria, children are the age group that are most affected by poverty:
· poverty has shifted from the elderly to children: 20% of children, approx. 10% of adults as well as those over 65 years of age are at risk from poverty;
· children with several brothers and sisters (so-called large families generally); children from working class families; children from one-parent families and families with a sole provider;
· in cases where social security or the financial situation is solely dependent on gainful employment, children constitute the main factors for (increased) risk of poverty;
· poverty manifests itself at a variety of levels: housing and surroundings; stressed and tense parents, shame, disintegration, ...
The lives of children and of those living with them are frequently subjected to straitened circumstances:
· life with small children in particular involves material impoverishment: low starting salaries, starting a home, full-time gainful employment for both parents is scarcely possible;
· poor starting conditions (e.g. bad pay; no support from parents possible) or dramatic changes in personal circumstances (divorce, unemployment) lead to risk of poverty!
· for the individual: a phase in their life; but for children as a group: children tend to live in more cramped conditions (e.g. a big apartment for large families is not affordable; this makes e.g. games and leisure activities for children more difficult).
Household income per capita in ATS
| |under 5.000 |5.000 to 6.000 |6.000 to 7.500 |Total poor |
|Children |30 % |27 % |43 % |137,000 |
|Persons of working age |33 % |26 % |41 % |182,000 |
|Elderly people |12 % |22 % |66 % |97,000 |
|Total |113,000 |106,000 |200,000 |416,000 |
Analyses and Departmental Activities 1997, Vienna 1997)
The Catholic Youth of Austria presents the following proposals with a view to solving the problems outlined above or improving the personal circumstances of children in Austria.
Redistribution of resources to children should result in:
· children having an adequate share of society’s wealth;
· the guarantee of a basic income for children; one way to redistribute wealth would be by guaranteeing a subsistence level;
· children being seen as individuals (assisted as citizens), not merely a „tax deduction factor“ for adults);
· guarantee of legal entitlement for every child – not welfare benefits for the poor.
· this redistribution to children must be effected by means of State revenues (property tax, progressive taxes, ...).
In addition to the issues of allocation of financial resources there is also the question of compatibility of employment and child-care for women and men:
· families with a sole provider are particularly at risk from poverty – improve the opportunities for women to find gainful employment!
· part-time work in qualified jobs (further training, opportunities for promotion) – entitlement to part-time work!
· create realistic opportunities for men, too – reduction of working hours would be possible by means of a basic income;
- good, adequate child-care facilities – for schoolchildren too.
Statement by Österreichische Kinderfreunde (Austrian Friends of Children)
There has been a shift away from the elderly and it is now children who are at risk from poverty. Compared to adults children live to a disproportionate extent in households that are at risk from poverty. Half of these children come from working-class families. Many of them are already well aware at the age of 10 or 15 that they will belong to the underprivileged sectors of society till the end of their days. Poverty is no longer a personal fate since it can affect anybody. But when children and adolescents are affected by poverty, it marks them for the rest of their life. Mental and physical strains in childhood and poverty-related educational shortcomings can only be made up for with great difficulty.
In Austria around 300,000 children are at risk from poverty. Of these two thirds live in families with one or two children and 35% in large families. Depending on the type of calculation, large families or families with one or two children are rated as being particularly at risk from poverty. Child poverty generally goes hand in hand with family poverty since the cause is usually the inadequate income of the parents. Parents and children can suddenly find themselves at risk from poverty through unemployment or following divorce or separation.
Austria ranks among the EU countries with the highest level of family benefits, yet the number of children at risk from poverty is rising at the same time as the benefits are only designed for horizontal redistribution from childless couples to people with children. In the area of welfare payments to the unemployed and social security recipients for instance, the new Federal Government has cut family allowances, and financial aid is far too low in comparison to international standards. Numerous cuts have also been made in the area of education, and further cuts have been announced which will indisputably have detrimental effects on the opportunities in life of children from poor households.
Child poverty can only be reduced by means of a package of measures consisting of voluntary welfare payments, infrastructure measures and direct payments. For these reasons, we call for:
Housing and living conditions suitable for children: Housing constitutes one of the most elementary basic needs, as do food and clothing. Affordable housing for parents with children and free leisure facilities and communications centers for all age groups!
Payments in kind: Extension of payments in kind and abolition of financial contributions for free travel to school and schoolbooks!
No cuts in the area of education: Attendance at educational institutions must be free of charge: from kindergarten through school right up to university. No tuition fees!
Extension of direct payments: Renaming of family benefit to child benefit. This child benefit must neither be taxed nor its amount reduced and must be increased regularly and adjusted to inflation at least once a year.
Standardisation of family allowances in the Bundesländer: The individual Bundesländer currently pay out family allowances. The differences in amount, duration and entitlement to claim lead to inequality of treatment and confusion.
Statement by the children’s and adolescents’ ombudsman systems of the Bundesländer
The children’s and adolescents’ ombudsman systems of the Bundesländer support measures to combat child and adolescent poverty by establishing a basic income for children and adolescents. Further, the elimination of all forms of discrimination is called for with regard to entitlement to advance payments of maintenance.
XVI) Development cooperation
Austria approaches the broad issue of children in its development co-operation activities in an integrated manner that encompasses the entire population. Austria sees in the support of human security, incorporating political, economic, social, cultural and environmental dimensions, a way of creating opportunities for each human being to have a decent life. This starts from the availability of basic needs including clean water, food, shelter and education leading to social inclusion and self-determination and physical security.
In the social fabric, children are in a delicate situation; they may be perceived – according to the degree of human security – as assets or burdens. A lasting improvement of their position might only be achieved by increasing the subjective and objective perception of individual and collective security of the entire population, taking into consideration the relations between various population groups – age groups, economic groupings, etc. Towards this end, Austria supports the governments of the partner countries in their attempts to reduce poverty and to follow a participatory development approach. The specific needs vary substantially between regions and countries, according to their state of development, economic situation, political stability, presence of violent conflicts, etc. Austria’s development co-operation programme includes a series of crosscutting activities that have a direct impact on the well-being of children and youth. These include the areas of gender equality and equity, support for strengthening of human rights, democratic structures, both central and local, as well as the support for civil society, and the environment Austria contributes to these activities through both its bilateral and multilateral efforts.
The Initiative 20/20, to which Austria is also committed, provides additional funds for broad-based social services that contribute to creating a basis for the well-being of the children and youth, providing health care, education, food and clean water.
In addition to these general approaches Austria’s bilateral development co-operation programme includes selected areas that particularly concern children and youth. For example, it focuses its support on an integrated juvenile justice system in Rwanda and Namibia. Concrete measures include an integrated policy development in the area of juvenile justice, the development of standards for the promotion of legal protection of children, the establishment of a juvenile panel system, specific care measures for juvenile offenders and the legal training of prison officials, police, prosecutors and judges.
Another programme area is conflict prevention and post-conflict reconstruction, both having a particular importance for children and youth. This includes the support for the social and physical well-being of children, combating the sexual abuse of children, both girls and boys, and striving to reintegrate victims of violent conflicts in their societies. For example, Austrian projects provided physical, social and psychological support for children and young people who had experienced serious traumas during the war in Bosnia. These included programmes to integrate handicapped youth into paid employment. An example of Austria’s involvement in the support for children is the Austrian Centre for Social Services in East Jerusalem, that provides care and mental rehabilitation through play therapy.
The reintegration of child soldiers is another area in which Austria is active contributing significantly to the peaceful reconstruction of countries.
The need to support themselves or to contribute substantially to the income of the family in order to survive the blatant poverty is one of the many sources for child labour. In some areas where AIDS has reduced the adult population or in others where migration, both internal and internationally, has led to drastic changes in the population composition, the labour of children is crucial for the survival of the community. Austria strives through joining initiatives such as “Fair Trade”, “Clean Clothes” to support the introduction of lighter work, medical acre, safety standard, schooling or vocational training for children.
Tourism was selected as a new area for co-operation activities, which has a strong impact on children and youth. Programmes include combating the sexual abuse of children by tourists and the psycho-social and health damage that this inflicts on society, including the spread of HIV/AIDS. These programmes are supported by awareness campaigns in Austria.
Austria’s support to multilateral development co-operation focuses on poverty reduction. In this connection, it works together with UNDP, UNFPA and UNICEF to support their activities for children and youth, thus contributing towards enabling the younger generations of society to participate fully in development.
Statement by the Austrian Committee for UNICEF
UNICEF Austria supports the international initiative „Initiative 20/20“ whose objective is to supply the population with the basics of food, water, medical services and educational institutions: 20% of the budget of the respective developing nations and 20% of the budget for international development cooperation of the so-called donor nations must be spent on basic services which will directly benefit the poorest. The figure of 0.7% of gross domestic product serves as an additional indicatory value for measures relating to international development cooperation with respect to the total output of a State in terms of economic capacity. Austria, however, does not attain even half of this figure (cp. the recommendation of the Committee on the Rights of the Child to Austria, para. 12).
- The Austrian Federal Government should therefore give a clear indication of the way forward in the area of international development cooperation by showing its support for the 20/20 Initiative and by giving particular priority to children’s rights.
- A specified percentage of the public budget for international development cooperation should be reserved for programmes that encourage development opportunities aimed at children and adolescents. At the same time, measures against social and gender-specific discrimination should be given special priority. Emphasis must be placed on the following areas:
basic education for all children by the year 2015
25% reduction in the rate of HIV infection by the year 2010
protection of children in armed conflicts and international criminal responsibility for serious violations of children’s rights
basic services to promote early childhood development
The medium-term objective should be to reach 0.7% of GDP for expenditure on international development cooperation by Austria.
The proposals put forward in the United Nations Convention on the Rights of the Child in the Concluding Observations 1999 (cp. above, para. 12) concerning increased expenditure by Austria on children in the area of international development cooperation are also supported by the children’s and adolescents’ ombudsman systems of the Bundesländer.
Statement by the Alliance for Development Co-operation
The following fundamental rights in connection with the rights of children in the „third world“, as defined by the United Nations Convention on Human Rights, must be implemented in particular:
Right to „non-discrimination“
Right to integrated training/education (Salamanca Declaration)
Right to adequate medical care (Alma Ata Declaration)
It is intended for the following target groups in particular, to benefit from support within the framework of development cooperation: girls (just as women are still at a disadvantage over men, so too are girls over boys), disabled children, children who are threatened by a disability or particularly at risk (e.g. from disease, under nourishment), families with members who are disabled or are particularly at risk (if the head of the family loses his sight for instance, the financial situation of the whole family deteriorates, school attendance and medical care of the children are frequently called into question).
Austria should increase funds for bilateral development cooperation in order to be able to set additional priorities in this area.
Child Labour
The long-term objective is for children to receive a good education and to foster their physical and mental development. Immediate abolition of all child labour without the adoption of supporting measures would appear to be unrealistic though and rather pointless for those concerned as the income from children is essential for very many families. For instance, in 1992 the USA threatened the clothing industry in Bangladesh with a boycott, as a result of which 750,000 children lost their jobs. Half of them remained unemployed whereas the other half now works in even more dangerous conditions in mines, in small businesses without any industrial safety measures, and in child prostitution.
An immediate prohibition of the dangerous and blatantly exploitative forms of child labour (working of very young children, child prostitution, bond slavery and slavery, work with drastic effects on health) must be drawn up and implemented. Accompanying precautionary measures must be adopted for lighter work done by children: industrial safety and social insurance, medical care, schooling and vocational training, minimum wage, trade union organization.
- Forming of a union and independent representation by working children, with a view to formulating and implementing their interests.
- Acknowledgment and analysis of the problem by national governments. As a consequence, extensive countermeasures, which not only monitor the execution of the law but also the socio-political dimension and include accompanying measures for those affected. An educational system provided by national governments with free access to schooling. Furthermore, the costs to families of education must be reduced, syllabuses and methods must be adapted to the needs of children and a combination of education and work must be made possible.
- Stipulation of internationally applicable norms by the community of States with effective control and a plan that offers children concrete alternatives. Pressure may be exerted on countries by means of a social proviso, which stipulates standards for child labour and by means of penalty tariffs for offending countries. During discussions on the social proviso the suspicion was frequently raised that the proviso could be misused by industrial nations as a protectionist instrument, to protect the national economy from cheap imports.
- A code of conduct for companies: entrepreneurs must confront the problem of child labour in their sphere of influence (i.e. with regard to outside suppliers). There are already signs that this is happening. In 1992 for instance, Levi Strauss abolished child labour at two of its subcontractors in Bangladesh. Children from the age of 14 were promised employment and in the meantime were enabled to attend school.
- Socially acceptable forms of production and seal of quality: prohibition of child labour and a minimum wage for adults are the cornerstones of socially acceptable forms of production. It is planned to portray to consumers the advantages of such socially acceptable forms of production with a seal of quality awarded independently and subject to continuous inspections, such as that of Transfair for instance. The Alliance for Development Co-operation calls for the Austrian development cooperation to promote the sales of these products and ensure that where there is an alternative, the Republic only purchases those products that are guaranteed to have been manufactured without the use of child labour and in accordance with socially acceptable standards at the same time.
- Cooperation of trade unions, churches, NGOs, consumers and associations of entrepreneurs, government and United Nations agencies, with a view to keeping the issue of the rights of children and the violation of these rights by the use of child labour in the public eye, and to draw up constructive strategies together with governments and trade and industry to counteract this phenomenon.
- Businesses also live from their image and cannot afford for the most part to be associated with the use of child labour. Awareness on the part of consumers of the conditions under which goods are manufactured is important. The purchase of products that have been manufactured in accordance with socially acceptable standards and fair trade contributes greatly towards promoting alternatives in the global economy.
XVII) Children and Armed Conflict
Compulsory and voluntary military service
Every Austrian male is liable for military service from the age of 17. However, a man can basically not be called up for military service until he turns 18, and only then if he is fit for service. Voluntary military service may, however, also be performed early, at the age of 17. In the first place, this ruling should only make it possible to consider the specific educational or training needs of the conscript and therefore only serves the interests of those it affects. Agreement of the legal representative (usually the parents) is not required. On 19.5.99, the Austrian Parliament drew up a measure relating to the resolution for the protection of children during wars and armed conflicts. In this, the Federal Government will be sought at international level in this connection for increasing the minimum age for recruiting adolescents to the armed services from 15 to 17 years and their deployment in hostilities to 18 years. In particular, ratification of a corresponding additional protocol for the Convention mentioned will be sought by as many States as possible (E 182-NR/XX.GP).
An amendment to the Wehrgesetz (Military Service Act) in 2000 should make it clear that the direct participation of soldiers under the age of 18 in hostilities during deployment is generally excluded. With the amendment to Section 47 Paragraph 2 envisaged, a provision should now be added in the interest of the improved protection of the rights of children (and therefore, so to speak, as a national "anticipation" of the amendment to the Convention on the Rights of the Child – as well as corresponding to the above-mentioned resolution of the Austrian Parliament mentioned) which expressly excludes the possibility of using soldiers under 18 years of age "in direct hostilities as part of the deployment". In practice over many years, approx. 430 persons have been affected by this ruling each year who (based exclusively on voluntary reporting) are already used for national service under the age of eighteen. This situation will also be possible in future without restriction. Likewise, the completion of all aspects of military training will still be permitted before the age of 18 as will their use for deployments without the risk of "direct hostilities". Thus only the use of the adolescent soldiers in question in hostilities as part of a military deployment is excluded (essentially, as part of a deployment for national defence only, in accordance with Section 2 Paragraph 1 (a) Military Service Act). This, therefore, also applies to young men who have volunteered for national service. The ability of persons older than 17 to be entered for military service exclusively on a voluntary basis will remain unchanged – except in the case of their taking part in armed conflicts.
Statement by the Austrian Committee for UNICEF
In September 2000 an International Conference on War-affected Children took place in Winnipeg and approved several documents by (juvenile) experts as well as a political „Agenda on War-Affected Children“. UNGASS Children 2001 will provide the first opportunity to review the implementation of these guidelines.
Austria must actively participate in the measures to implement the demands made in Winnipeg and to improve the situation of war-affected children, in particular by:
· speedy ratification and implementation of the Optional Protocol to the United Nations Convention on the Rights of the Child on the involvement of children in armed conflicts, accompanied by a declaration that Austria will neither directly nor indirectly use children in wars nor train them for such a purpose;
· supporting international activities and programmes for the protection of children in armed conflicts (based e.g. on the „Machel Review 1996-2000“);
· supporting measures to combat the international sale of children, child prostitution and sexual violence towards girls. In this context, UNICEF Austria proposes that legislation acknowledges rape as a ground for asylum.
XVIII) "Lessons learnt" and future action
The systematic review, commissioned by the Federal Government, of all child-related legislation including the living conditions of children in Austrian society, which was conducted between 1992 and 1994 by independent experts on children’s rights with respect to compliance with the Convention on the Rights of the Child (CRC), and the subsequent detailed deliberations by the central legislative body, the Austrian Nationalrat, together with the promises on legal protection given by the United Convention on the Rights of the Child, is a landmark in the development of children’s rights in Austria. The resulting publicity of the Convention on the Rights of the Child in government institutions, the NGO sector, as well as in the mass media led to a variety of public sectors making an initial acquaintance with the principles of the Convention, e.g. in legislation (for instance the Parental Custody (Amendment) Act 2001), in the judicature of the highest courts (for instance with respect to granting a child the right to personal contact to the parent without custody), in the area of state administration (e.g. concerning the official application of "milder penalties" for minors (and their parents) as an alternative to custody pending deportation), as well as in a series of other ventures, such as the production / showing of the in-flight video to combat "child sex tourism" during AUSTRIAN AIRLINES flights to holiday destinations etc.
The "United Nations Convention on the Rights of the Child" has proved to be a valuable key document for internal orientation in terms of certain human rights standards to be applied to children in a variety of areas of life, and for a social discourse on the current – as well as future – importance of young people in society.
Statement by the Ludwig Boltzmann Institute of Human Rights on the embodiment of children’s rights in the Austrian Constitution, supported by the Austrian Committee for UNICEF, Österreichische Kinderfreunde (Austrian Friends of Children) and other non-governmental organizations as well as the children’s and adolescents’ ombudsman systems of the Bundesländer
Incorporation of children’s rights in the Constitution
Despite the fact that Austria has regularly shown strong commitment on the international level to promote and protect human rights, incorporation of these standards into the Austrian legal system, in particular as enforceable constitutional rights, remains inadequate. Even the Convention on the Rights of the Child was passed by the Austrian Nationalrat only at the level of an ordinary law and approved with a reservation as to its execution, which excludes direct application of the Convention on the Rights of the Child before Austrian courts or administrative authorities. In contrast to the procedure for the European Convention on Human Rights which has the status of constitutional law with direct applicability, the provisions of the Convention on the Rights of the Child are thus presently unable to provide children and adolescents increased protection of fundamental rights in Austria.
In 1998 the Ludwig Boltzmann Institute for Human Rights presented a study on the "Constitutional Implementation of the United Nations Convention on the Rights of the Child in Austria", commissioned jointly by the children’s and adolescents’ ombudsman systems and the Federal Ministry of the Environment, Youth and the Family. The study analyzed the extent to which Austrian constitutional provisions already take into account the principles and objectives of the UN Convention on the Rights of the Child, and it formulated proposals for supplementary constitutional provisions - submitted as a draft "Federal Constitutional Law for the Protection of the Rights of Children and Adolescents". A total of 17 substantive Articles give expression to the fundamental guarantees contained in the Convention on the Rights of the Child with a view to improve the legal status of children and adolescents in Austria.
Constitutional provisions in the following areas have been proposed:
• Basic recognition of children and adolescents as subjects of (constitutional) rights
• Extension of the existing principle of equality clause – no discrimination on the basis of nationality or sexual orientation
• Acknowledgment of parental responsibility following the concept of „evolving capacities“ of the child (Article 5 CRC)
• Best interests of the child as a guiding principle for legislation and government
• Right to respect for identity and self-determination of children and adolescents
• Right to participation
• Right to an adequate standard of living, health and social security, including the guarantee of enforceable subsistence level benefits
• Right to education and training, vocational preparation
• Right to recreation and play
• Right of access to care and counselling centers and centers for rehabilitation
• Right of disabled children and adolescents to full social integration, particularly in the school system
• Right of refugee children and adolescents to adequate care
• Right to protection from violence, abuse and all forms of exploitation
• Special safeguards for children and adolescents during administrative and court proceedings
Finally, it is proposed that guarantees of children’s rights should also be included on the level of regional constitutions in the nine Austrian Bundesländer.
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[1] Annual Report 1999, Federal Ministry of the Interior.
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