Who may file a complaint?

OSCE/ODIHR Election Assessment MissionReport Republic of Austria Presidential Elections 25 April, 2010; Warsaw 9July, 2010

“Following the declaration of Ulrich Habsburg-Lothringen, a member of aformer ruling family, to run for office as an independent candidate, adiscussion ensued about a constitutional provision that prohibits members ofthe former ruling family to run for office and about whether this restrictioncontinues to be justified in contemporary Austria. He complained about theclause to the Constitutional Court in September 2009, but was told that hewould first need to have his application rejected by the FEB before lodging acomplaint. The Green Party has submitted a proposal in parliament to amend theconstitution, but it has not received the necessary support. According to pressreports, all parties in parliament are in favor of such an amendment but somefeel further debate is needed. According to Dr Habsburg-Lothringen theconstitutional ban on former ruling families denies candidacy to some 1,000individuals in Austria.”

http://www.osce.org/odihr/elections/69071

Constitutional Court Act 1953 of the Republic ofAustria (VfGG 1953 last amended BGBl. I Nr. 51/2012 (NR: GP XXIV RV 1618 AB 1771 S. 155. BR: 8730 AB 8731 S.809.)

Article ?67. (1) Results of elections of the FederalPresident, elections to the general representative bodies, the EuropeanParliament, a constituent organ of a statutory association of professions(representative body), employers or employees or an executive organ of amunicipality (hereinafter named municipal executive) may be challenged on thegrounds of any alleged unlawfulness of the election procedure. The challengeshall contain the request to nullify the election proceeding or part of it, andspecify the reasons for the request.

(2) Challenging theelection to a Provincial Government requires a motion of one tenth of allmembers of the Provincial Parliament, in any case at least of two of itsmembers, challenging the election of a municipal executive requires the motionof one tenth of the members of the municipal council, in any case of at leasttwo of its members. Groupsof voters (political parties) who have submitted in due time election proposalsfor the challenged election with an electoral authority prescribed by theelection procedure are authorized to challenge the other elections as named inpara 1, and they can do so through their authorized recipient. If theelection procedure does not provide for any such submission of electionproposals, the authorization for challenging elections before theConstitutional Court is governed by the special regulations of such election procedures.A challenge of an election may also be filed by such party intending to run inthe election claiming that he had been unlawfully denied the right to run inthe election.

(3) If the challenge of theelection is based on the unlawfulness of a ruling and a suspension of theenforcement of the ruling contested does not give reason for a substantialdisadvantage, the Constitutional Court may, upon request, decide that thechallenge has suspensive effect. If the Constitutional Court is not in session,the president shall decide upon a motion of the reporter.

? 68. (1) The challenge of the election must be filedwithin four weeks after termination of the election proceeding, if however therespective electoral law provides for appeals, within four weeks after serviceof the ruling issued in the last stage of appeal. If such ruling makesreference to documents submitted as evidence, counterparts, copies orphotocopies of such documents shall be en- closed with the challenge of theelection.

(2) The ConstitutionalCourt shall send one copy of the challenge filed to the supreme electoralauthority in charge in accordance with the electoral regulation applicable,with the order to submit the electoral files within a given time. Thiselectoral authority is free to submit a reply at the latest when submitting theelectoral files.

? 69. (1) In addition to the challenging party, all groups of voters(parties running in the election) shall be summoned to participate in thepublic oral hearing before the Constitutional Court which have been applicantsfor the challenged election, or other parties entitled to challenge theelection on the basis of the respective electoral regulation. The electoralauthority named in ? 68 para 2 may delegate a representative at its discretion.

(2) If the unlawfulnessalleged in the challenge consists in the fact that an ineligible person hasbeen declared elected or an eligible person has been unlaw- fully declaredineligible, such person shall also be summoned to participate.

? 70. (1) The Constitutional Court shall allow achallenge filed if evidence of the alleged unlawfulness of the electionproceeding has been proved and such unlawfulness has affected the result of theelection. In the decision granted to the challenge the Constitutional Courtshall repeal either the complete election proceeding or parts of it to bespecifically defined.

(2) If the ConstitutionalCourt allows a challenge of an election because a non-eligible person has beendeclared elected, it shall declare the election of such person null and void.In this case the provisions of the respective electoral regulation referring toa seat having become vacant shall apply.

(3) If the ConstitutionalCourt allows a challenge of an election because an eligible person has been wronglydeclared non-eligible, the decision shall state whether this causes theelection of other persons to be void, in which case the election of suchpersons shall be cancelled. If the contested election has taken place on thebasis of party lists registered, the electoral authority in charge shallcorrect the election result it published.

(4) The electoralauthorities which, after the challenge of the election has been accepted, haveto decide on the merits and issue the further rulings, are bound to the actualfacts and the legal view expressed in the decision of the Constitutional Court.[…]

http://www.ris.bka.gv.at/Dokumente/Erv/ERV_1953_85/ERV_1953_85.pdf