CASE

Terrorist Z used an explosive device at the Christmas market in a large city. He and 24 other people died. In addition, over 600 people were injured and others, including firefighters, emergency care personnel and policemen (professionals), suffered psychiatric harm due to the trauma of seeing dead and severely injured bodies. Family members of the deceased – some of them not present at the Christmas market – saw pictures in the newspapers and online of the horrific attack.

The victims, professionals, bystanders and family members demand compensation from the government. Will they receive compensation and, if so, for what losses? Would your answer be different when the terrorist survives the attack and the victims, bystanders and family members demand compensation from the terrorist? And is it possible to start a collective proceeding? If so, please indicate the most important bottlenecks in this particular case.

DISCUSSIONS

AUSTRIA

Matthias Dangl and Georg E Kodek

Operative Rules

Generally, there is no claim against the government unless government authorities acted negligently (Official Liability Act (Amtshaft ungsgesetz)). The facts of the case do not contain any indications of any misconduct on the part of the authorities.

A claim can also be brought against the terrorist (or their heirs) under general tort law (§ § 1293 ff ACC). The direct victims of a crime can claim compensation for costs of treatment and a lump sum for pain and suffering (Verbrechensopfergesetz).

A fund for a specific terrorist attack in Austria has been set up by the Austrian government in the past.

A collective action against the government or the terrorist (as described in the Austrian section in the procedural rules chapter) would be possible.

Legal Formants

Currently there are several cases pending in Austria in the aftermath of the terrorist shooting in Vienna on 2 November 2020 alleging that the authorities neglected relevant information about the terrorist (including, inter alia, that he tried to buy ammunition in Bratislava) in advance (§ § 1 ff of the Public Liability Act). Official liability requires an unlawful and culpable action of an authority in the execution of the law. The claim can also be based on an omission if the authority was obliged to take action and dutiful action would have prevented the damage.