Freedom of Emigration in Austria during Constitutional Period. Legal Bases

The legal system which was in force during the constitutional period in Austria guaranteed a wide range of rights and liberties to a man and a citizen, including the freedom of emigration. The fundamental Act of 21st December, 1867 on general rights of a citizen in its regulation (article 4, sentences 3 and 4) constituted that, on the part of the state, the freedom of emigration is solely limited by a military service duty and the emigration fees may be charged exclusively on the basis of the principle of reciprocity. Hence, the previously binding regulation, namely the patent on emigration of 1832, was repealed; it differentiated between legal, i.e. permitted emigration (which in practice was limited due to a series of difficult conditions to be fulfilled), and unentitled, i.e. illegal. However, according to the doctrine, due to the lack of an Act regulating emigration issues, some regulations of the Patent of 1832 remained binding even after the constitution had come into force. These were the norms in no contradiction to the constitution itself, including but not limited to the regulation containing a legal definition of an emigrant or the regulations referring to the loss of Austrian citizenship as a result of emigration. These highly complex issues were perceived as disputable in jurisprudence.

However, there was no doubt that after the December Constitution entering into force there existed no formal limitations towards emigration except for the military duty.