Justice – What about the criticism of the WKStA

Gabriele Aicher did not save with harsh words. The legal protection officer of the judiciary saw the actions of the Economic and Corruption Public Prosecutor’s Office (WKStA) in the advertisement affair “a red line of the rule of law crossed”. The WKStA “resolutely rejected” the criticism except for one point. It is suggested “improper official behavior without sufficient factual basis”.

The “Wiener Zeitung” analyzes Aicher’s complaint with criminal lawyers Klaus Schwaighofer from the University of Innsbruck and Robert Kert from the Vienna University of Economics and Business. You can understand the criticism in some points, in others you see the approach of the WKStA covered by the code of criminal procedure.

The complaint and the opinion of the WKStA lie with the Higher Regional Court (OLG) Vienna. The court decides on this as an appeal instance. Above all, Aicher criticizes the raid carried out on the media company “Austria” on October 6th and the investigations against the accused Helmuth and Wolfgang Fellner.

First there is the information about location data requested and ordered by the WKStA. The aim was to find out where the people are by tracking the suspects’ cell phones online.

Such a measure must be applied for by the public prosecutor and approved by a detention and legal protection judge (HR judge). However, if it is directed against media owners or journalists, as in the specific case, the public prosecutor’s office must also obtain the authorization of the legal protection officer.

Schwaighofer says the authorization is required by the public prosecutor for the application to the HR judge for approval: “At least it must be obtained at the same time.” In any case, however, the approval by the HR judge should only be given if the authorization is available.

Was empowerment
not caught up

Aicher criticizes the fact that their authorization in the advertisement affair was not obtained and that the measure was ordered by the WKStA and approved by the HR judge. The WKStA declares that this was “not done by mistake”. After the judicial approval, the “omission” was recognized and recorded “transparently in the file”. The Federal Office for the Prevention and Fighting of Corruption (BAK) was immediately instructed “not to carry out the measure”: “In fact, the location data was not collected either.”

The criminal lawyers still see a violation of the criminal procedure code. According to Schwaighofer, the order by the WKStA and the approval by the HR judge were not proceeded in accordance with the law due to the lack of authorization. “Whether the bearing was actually carried out or not is not the decisive factor,” says Kert.

Should the Higher Regional Court of Vienna share this view, it could determine that an infringement of the law has occurred. This would not have any major practical effects, as Kert explains: “But one should not underestimate that either: It is important when the OLG finds that investigative measures were unlawful.

Urgent suspicion

Aicher’s second point of criticism concerns the raid on “Austria”. No authorization had to be obtained for this. In the case of an online tracking or a raid on media owners or journalists, however, there must be an “urgent suspicion”. As people who keep professional secrets, they are privileged: they have a general one Right to refuse to testify.

This right must not be circumvented through investigative measures such as surveillance and confiscation. They are only allowed if there is an urgent suspicion against the person concerned.“It’s about the freedom of the press. It should be an exception that journalists are monitored or other investigations take place against them,” says Kert.

In practice, it is difficult to distinguish between an urgent suspicion and a specific suspicion that is sufficient to be accused. The necessary degree of suspicion cannot be precisely recorded mathematically, says Schwaighofer. An urgent suspicion must be “very strong”. “The urgent suspicion is significantly more than the specific suspicion that I otherwise need. There must be a high probability that the accused actually committed the crime,” says Kert.

In Aicher’s view, this urgent suspicion against Helmuth and Wolfgang Fellner is currently not available. She would therefore never have given authorization for online direction finding, according to the legal protection officer.

The WKStA states: “The orders contained a detailed justification of the suspicious situation, including the subjective factual side (intent) of all the accused.” In addition, the search and seizure of the evidence at “Austria” was carried out in strict compliance with editorial secrecy.

Bribery construction

According to Kert and Schwaighofer, the urgent suspicion against the Fellner brothers can be doubted. They are skeptical about the bribery construction that the WKStA chose in the advertisement affair. So it is questionable whether the benevolent reporting, which is part of an illegal deal between Sebastian Kurz, his confidante and the Fellner brothers, an advantage in terms of bribery offenses/ Represent corruption. The concept of advantages is very broad, says Kert. However, it has not yet been clarified by case law whether this includes positive reporting. Kert speaks of an “at least original construction”, for Schwaighofer the bribery construction is “very strange”.

Aicher also criticizes the filing of the WKStA. She complains that no separate act was created in the individual proceedings relating to the Causa Casinos and the advertising affair. Instead, the WKStA conducts all procedures under one roof. The result is that the same HR judge always makes the decisions. “The same applies to the OLG. Here, too, the same senate always decides in the second instance. This systematically undermines the right to the legal judge,” said Aicher.

Generous rules
in the case of several procedures

“The joint conduct of the procedure by the WKStA should be in accordance with the law,” said Schwaighofer. The rules on the connection of criminal matters would go far, “so that one can rather not speak of a violation of this right”. The creation of a separate file is not intended in the case of “accidental finds in the context of a seizure”: “In this case, only has to a separate protocol The investigations into the advertisement affair are based on such finds.

“It is probably not necessary to create your own file. But you could question the factual connection between Ibiza and the advertising affair,” says Kert. Nor is the right to a legal judge violated.

Kert and Schwaighofer are not satisfied with the legal situation. “It’s not a great solution when dozens of people have access to the file.” With regard to leaks, that screams “that things are going out”. And from the point of view of legal protection, it is “not optimal that it always goes through the same judge,” said Kert.

For Schwaighofer it is unsatisfactory that there are no stricter rules for securing communication content, in this specific case chats on the secured cell phone of ex-Öbag boss Thomas Schmid or in the cloud.

He refers to the rules for the ongoing monitoring of telephone calls. This is only permissible if there is an urgent suspicion of a deliberate act, for which a prison sentence of more than one year threatens. In addition, a judicial authorization is required. In contrast, the content of chats, SMS and e-mails on a smartphone or tablet can be accessed and evaluated by securing the device. The order of the public prosecutor’s office and the simple suspicion of a criminal offense are sufficient for this.


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