The reintroduction of coercive detention in Austrian administrative law and its relevance to the Austrian Act on compulsory vaccination against COVID-19

Resolved in the National Council and the Federal Council in December 2021, now also published via the federal law gazette “RIS” on February 28th 2022: The so-called “coercive detention” was reintroduced to the Austrian administrative law and the corresponding amendment to the Austrian Act on Administrative Enforcement 1991 (“VVG”) (retroactively) entered into force on January 1st 2022.

Coercive detention is by no means new in Austrian administrative law. It has already existed since the introduction of the VVG in 1991. The aim of coercive detention is to ensure the enforceability of obligations to tolerate, refrain from or perform unjustifiable acts (= acts that cannot be performed by a third party) even if, for example, the imposition of a fine would in principle be possible as xxx of coercion, but – due to the lack of assets of the obligated party – ineffective in practice. However, it was repealed as unconstitutional by the Constitutional Court (“VfGH”) in its decision from October 7th 2020, and the repeal entered into force on December 31st 2021. By amending the VVG, the provisions regarding coercive detention in administrative law have now been reintroduced in – at least according to the legislator – legally and constitutionally compliant form.

However, the reintroduction of coercive detention became particularly explosive due to the coincidence with the enactment of the Austrian Act on compulsory vaccination against COVID-19, which entered into force on February 5th, 2022 and obligates all persons, who are at least 18 years old and have a residence in Austria, to undergo a vaccination against COVID-19.

  1. The new rules on coercive detention:

With the amendment of the VVG, the legislator wanted to meet the requirements of the Constitutional Court for a legally and constitutionally compliant regulation of coercive detention. To this end, a maximum permissible total duration of one year of coercive and also a “new, extended” set of legal protection instruments are now stipulated. Constitutional conformity shall now also be ensured by the fact that the reasonableness of coercive detention has to be reviewed not only when it is threatened and imposed but also, at least if the detention shall last longer than 4 months, after 4 months have elapsed and every 4 weeks thereafter.

In this context, the above-mentioned “new and extended” legal protection instruments follow the model of the appeal against detention pending deportation under the Austrian Procedural Act regarding the Federal Office for Immigration and Asylum and represents a kind of “overall appeal” under the provisions of Art 130 para 1 lit 1 of the Austrian  Federal Constitutional Act (“B-VG”) (in connection with the notice, with which coercive detention is imposed), Art 130 para 1 lit 2 B-VG (in connection with an arrest and/or coercive detention that is not covered by any notice or exceeds such) and Art 130 para 2 lit 1 B-VG (in connection with an arrest and/or coercive detention as a mere enforcement measure).

In addition, the current amendment to the VVG also raised the maximum amount of fines (as coercive penalties) from € 726 to € 2.000 in each case. Click here for the current text of the VVG.

  1. Coercive detention and the Austrian Act on compulsory vaccination against COVID-19:

At the end of 2021, not only the reintroduction of coercive detention caused discussions, but also the announcement that a legal obligation for COVID-19 vaccination shall enter into force at the beginning of 2021. As a result, the reintroduction of coercive detention was not positively received by all sides, but repeatedly met with criticism. In particular, representatives of the “Austrian Freedom Party (FPÖ)” repeatedly expressed “concerns” that coercive detention would in future be used against persons who had not been (and refuse to be) vaccinated against the coronavirus. Representatives of the other parties, however, countered that the reintroduction of administrative coercive detention was in no way connected to the introduction of the legal COVID-19 vaccination requirement, but was rather about “repairing” and “improving” the unconstitutional provisions on coercive detention that “expired” at the end of 2021. A corresponding amendment, proposed by the FPÖ, therefore did not find a majority, and the new regulations on coercive detention do not contain any explicit exemption with regard to the COVID-19 vaccination obligation.

Moreover, according to the representatives of the other parties, it should also not be disregarded that coercive detention is not used to enforce general legal obligations. The use of coercive detention against “vaccinators” was therefore not possible, since the Act on compulsory COVID-19 vaccination does not stipulate individual notices or custodial sentences.

If we now take a closer look at the Austrian Act on compulsory vaccination against COVID-19 and the new provisions of the VVG with regard to coercive detention, it seems that there is in fact no conceivable constellation in which coercive detention could be imposed on “persons unwilling to get vaccinated”. The Act on compulsory vaccination against COVID-19 does not provide for a certain person to be specifically obligated to be vaccinated by means of an individual order (e.g. by issuing a notice). Rather, it is a general legal obligation, whereby the most frequently conceivable individual “orders” that could be addressed to specific persons on the basis of the Act on compulsory vaccination are penalty orders due to non-compliance with the obligation to vaccinate. However, these may also not contain a specific duty that a particular person would have to be vaccinated. Rather, such a penalty order may only impose a fine on the person concerned and the Act on compulsory vaccination itself expressly excludes the imposition of substitute custodial sentences in its penalty provisions (Art 10), even in the event of any non-collectability of imposed fines. Moreover, decisions (in the broadest sense) in connection with the (non-)existence of exemptions from the standardized obligation to vaccinate seem to be the only otherwise conceivable individual orders in this context. However, these, too, could not contain an individual obligation to vaccinate, but again could only result in penalty orders, so that in this context, too, the obligation to vaccinate could not be enforced by imposing coercive detention.

Thus, the regulations on coercive detention in administrative law are now in force and it remains to be seen, whether they will be brought before the Constitutional Court again and whether the Constitutional Court will consider the current arrangement to be legally and, in particular, constitutionally compliant. In any case, the reintroduction of coercive detention has no impact on the Austrian Act on compulsory vaccination against COVID-19, as there is no room for the imposition of coercive detention in connection with the non-compliance with the vaccination obligation concerning COVID-19.

Written by Alexandra Prodan.

For questions and inquiries, do not hesitate to contact Árpád Geréd and Alexandra Prodan.

Status: 02.03.2022

Disclaimer: This article has been carefully researched and prepared, but is for information purposes only and is in no way a substitute for legal advice. Liability for correctness and completeness is excluded.