Josef S. Was Not a Political Prisoner but the Austrian Judicial System is Fundamentally Flawed
Composed on July 30, 2014
The average Austrian police officer — in a senior position or not — has little sympathy for people like Josef. To the Austrian Verfassungsschutz — the federal agency for internal security — he had long been a public nuisance. To some officials engrossed in his files, Josef is probably nothing short of an obnoxious rogue, a mutinous agitator being morally co-responsible for every other leftist act of mischievous civil disobedience.
What had happened?
In early 2014, university graduates related to the Austrian Freedom Party (FPÖ) had invited to their annual ball. This is a big event attracting hundreds of guests. The core of attenders are independent-minded, ethnically conscious academics but since the Wiener Akademikerball is also a society event, the crowd present is remarkably diverse: paleo-conservative and liberal intellectuals, businessmen and lawyers, journalists and artists, careerists and opportunists, MPs, MEPs and Vienna city councilors, and, above all, uptight bigots who love to shake a leg and to sip champagne.
No private recreational meeting of privileged, wealthy, and powerful people in Austria is perfect unless there is a squadron of cops protecting them on the tax payers’ expense. And protection they really did need. Political activists, truly dedicated to the cause of anti-Fascism (opposing any kind of Fascism but their own), had organized a counter-demonstration.
Modern anti-Fascism is a warm, all-inclusive concept: All of us but Fascists are welcome, and since no-one considers himself a Fascist, everyone is welcome. And so it happened that this crowd was remarkably diverse, too. And like on the Akademikerball, everyone had good and fair reasons to participate.
It could have become an enjoyable evening to everyone if there was not a catch to modern anti-Fascism: the concept has long been hijacked by a certain breed of activists whom Jürgen Habermas called „leftist Fascists.” Ostentatious fairground barkers who neither believe in liberty nor in democracy. While their stultifying positions ought to be of concern to reasonable analysts, to the police they should be irrelevant.
But since the Austrian Republic has been co-founded by the Communist Party (KPÖ); since Austria’s president Dr. Heinz Fischer (SPÖ) was (or maybe still is) a founding member of the Austrian „North Korean Friendship Society”; and since Vienna’s mayor Michael Häupl (SPÖ) would love to outlaw even cultural rightists like the Identitarians, it should not come as a surprise to anyone that there are fortunately (almost) no unreasonable limits to the free speech rights of alleged left-wingers in Austria. And the police officers, being good law enforcers, duly ignored all verbal excesses.
No, there was a different problem.
Robert Treichler — a keen-witted political observer — had summed up the point when he defended the (disgracefully poor) remaining civil rights of alleged right-wingers: „Anti-Fascists occasionally flip out, and nobody dares to tell them.”
A few activists believing in intimitation, harassment and violence had begun to spit on ball goers. Eventually, the situation escalated, civilians and police officers were attacked, property was destroyed, arson was committed, and all of the sudden there were injured victims as well as substantial financial damage. Déjà vu.
So where does Josef S. fit in?
Nowhere, that’s the problem. If we are to believe some of his political sympathizers, then Josef is just a concerned non-citizen who happened to stroll through Vienna when, lost in thought, he all of the sudden found himself in the midst of a demonstration. It might have overwhelmed him to join (softly) in the chorus but Josef definitely didn’t resort to violence. His counselor-at-law suggested that, in the muddle, the bewildered police officers must have confused him with another activist.
Certainly, the police force knows better. This case was not only about „breaching the public peace”, like „incitement” surely a dreadfully vague offense. It was also about „damage to property” and „grievous bodily harm,” extraordinarily well-defined norms which constitute the very core of police work. Austrian police officers are usually very good at solving such crimes, in particular if they happen before their very eyes. The criminal court sentenced Josef to 12 months of imprisonment.
Activists loyal to Josef suggested that he had been a „political prisoner.” Honestly, such nonsense offends the memory of people who really were political prisoners: such as Aleksandr Solzhenitsyn or Nelson Mandela. There are decent standards by which a political prisoner can be recognized:
A political prisoner is any person who, because of her political views or because of her politics, is incarcerated without any legal basis; or who is incarcerated based on a penal norm which targets political views or which has been designed to imprison political opponents; or who, because of her political views or her politics, is exposed to grossly disproportional, grossly discriminative or inhuman punishment. Alex and Madiba can score more than one point here but — even with the best intentions — nothing thereof applies to Josef.
Still, informed observers cannot shake the feeling that something was not exactly the way it is supposed to be. Anti-Fascist witnesses to that very night profess that Josef is innocent. It had been dark. Trial observers know that nothing had happened before the police officers’ very eyes. The incriminating evidence came down to a single police officer who, when taking the witness stand, had involved himself in contradictions. No CCTV shooting, no cell-phone photo, no fingerprint, no DNA evidence, no independent testimony had incriminated Josef. Activists sympathizing with Josef think that he was „scapegoated.”
This is possible, certainly.
In the Alpen-Donau.Info trial, the evidence was even poorer: a nice theory presented by the prosecutor’s office and a meager „we suspect it” by an honest police officer on stand. In both this and in Josef’s case the public prosecutor’s office was represented by district attorney Hans-Peter Kronawetter, LL.M.
Both looking for a scapegoat and verdicts of guilty despite „reasonable doubt” have little to do with the political views of a defendant, however. In Austria, this happens, time and again, to every other alleged (real) criminal offender as well.
Peter Pilz, a Green MP, had once suggested that Hans-Peter Kronawetter’s work as a prosecutor was biased (towards the right-wing, of course). Kronawetter sued and the court forced Pilz to retract the statement (due to lack of evidence).
In reality, Kronawetter is doing a job as fair as any other Austrian district attorney. Certainly, if laws are extremely vague or plainly moronic, the results will be undesirable. If professional or lay judges neglect their duty, the results will also be undesirable. But in an ideal judicial system, someone not entirely unlike Kronawetter would be a distinguished public prosecutor. He would, if the law permitted it, squeeze the last drop of juice out of both penal norms and available incriminating evidence. He could (truly) represent the interest of the public (in law enforcement) and the interest of potential victims (in justice).
His professionally required bias with regard to a defendant’s alleged acts would unequivocally reveal flaws inherent in penal norms as well as potentially undesired consequences of their application, forcing parliament to react (much faster). In an ideal judicial system, a dedicated public prosecutor like Kronawetter could, much more than now, contribute to justice and, on the long run, even to improving the quality of criminal law. And nobody could complain anymore that he were biased. Honestly, I have never met a defendant who expressed concerns that the district attorney, during his trial, would not have been hypocritical, biased and hateful enough.
However, far from being ideal, this is not how the Austrian judicial system works. In Austria, a public prosecutor like Kronawetter is legally obligated to stay objective. This certainly explains Peter Pilz’s concerns. Pilz understands that — leaving Austrian legal standards of objectivity aside — no prosecutor can truly be objective. One could as well ask defense counsel to be objective. Unlike in the case of the police and the judge, objectivity is conceptually incompatible with a prosecutor’s very assignment.
Do to their (sincere) desire to design a system free from bias (which cultivates the truth), Austrians have created a judicial system which, in theory, should be any innocent suspect’s dream. There are only objective and fair participants — the police, the public prosecutor, the judge, potentially a jury or lay assessors and court-appointed expert witnesses — as well as participants legally sympathizing with the accused — counsel for the defense. By and large, the system works rather well, in particular if a defendant is guilty of a crime (and this is, like everywhere, the rule). But due to a combination of several factors, an innocent defendant who is not able (or not willing) to prove his innocence will have a hard time being acquitted — and frequently he is not.
The Austrian judicial system has been derived from the inquisition trial. I am referring to the (bewitching) Holy Inquisition, indeed. This probably inspires little confidence but in reality the advent of the inquisition trial was accompanied by legal progress. Before, the legal practice had been trial by ordeal. The court of inquisition introduced witness examination and evidence. There was an inquisitor — a kind of prosecutor and judge in one — and a defendant. And honestly, if the premises and the laws are correct — harassing suspected „Nazis” rather than suspected „witches” — and if the judge is enlightened and dedicated to justice, a makeshift criminal court, in an emergency, does not need many more elements.
Austrians might still feel a bit uneasy without counsel for the defense while Americans will miss nothing: if we (really) agree there shall be no prosecutor conceptually different from the judge — why does a defendant need counsel? To give the whole farce an impression of legitimacy? If on anything, in such a case Americans would insist on a jury of peers.
In British and Anglo-American common law, the judge only enforces due process (of law). The prosecution and the defense are on the same level: it is them who produce, examine and cross-examine evidence. And what is most important, the prosecution and the defense are seen to be on the same level by the jury.
In the Austrian system, the judge is still an inquisitor: it is (primarily) him who has to explore the truth by the examination and the (additional) production of evidence. The prosecutor and the defense can examine, too, but this is rather a fair chance to get some of the left-overs. There is no room for a cross-examination in the Austrian system, for there is an objective, enlightened judge who examines anyway.
During the animal welfarists trial in Wiener Neustadt, a columnist for Der Standard, an Austrian daily, had suggested that the Austrian and the Anglo-Saxon judicial systems would lead to similar results — unless the public prosecutor would not do his job. Then the Austrian judge could repair the issue for the prosecution to the detriment of the defendant.
Certainly, this corresponds with the legal practice. If there is a little or questionable incriminating evidence but a strong public or governmental interest in prosecution, the judge rarely uses his omnipotence and omnipresence exactly in a neutral manner.
But the assignments to be both an enlightened inquisitor and a neutral judge are already conceptually incompatible. A judge cannot explore the truth and examine witnesses (least of all the defendant) without getting personally involved, without becoming partial against his very desire.
Even if a judge (sincerely) tried to be objective, he is inevitably destined to fail: to foster and promote truth, the judge must remonstrate with the defendant (and the witnesses for the defense). This turns him not only into a secret accomplice of the public prosecutor’s office, a regrettable consequence maybe still covered by the concept of an enlightened inquisitor. But Austrian judges are held in such great esteem by the Austrian public that the judge is transformed — in the eyes of the jury or of the lay assessors — into a demigodlike, neutral and objective super-prosecutor. While this might still be bearable — to the authoritarians amongst us even desirable — if the defendant is a guilty habitual felon, it does not precisely contribute to balancing the chances of an innocent defendant.
In British and Anglo-American common law, the responsibility for justice is spread out over the judge, the prosecution and the defense. Naturally,not exactly equally either but it is (better-)distributed. In Austria, the responsibility for justice — for all the defendant, the victim and the public — rests, in the end, primarily on the shoulders of the (presiding) judge (alone). Should a single mortal and fallible man or woman fathom that much responsibility and power? Is this really what Austrians desire?
In each and every country, the police is not exactly objective either. It works for (the benefit of) the public prosecutor’s office. In addition, even the most skilled and experienced police officers who (sincerely) try to connect a criminal offense to the true culprit will eventually — based on their best judgment of the available facts of a case — have to subscribe to one or more theories of the case. Since resources are not unlimited and since human beings can err, the theories might as well be partly or entirely wrong. At latest from then on, even the most distinguished police officer is capable of overlooking exonerating evidence; evidence which will never be added to the court records at all, for the officer, based on his theories, must fail to recognize its relevance. But the suspect has no means at his disposal to correct this. Most of the time, he does not even know that such evidence exists. Thus, even in an ideal world, the police will always labor under a certain minimum of delusion, bias and prejudice.
Since every crime theory related to an innocent defendant must be wrong (by definition) and since an innocent defendant cannot rely on the police or on the prosecution (who both, by definition, are subscribing to wrong versions), he can only rely on defense counsel to shift the balance to his favor. Even if we would approve of the role of an inquisitive judge, it would still be necessary, for the sake of justice, that the prosecution and the defense can propel their arguments with an equal amount of force and that both of them are seen to be on the same level by the jury or the lay assessors.
In Austria, this is not the case either. The role of counsel for the defense is inherently inferior because the body of public prosecutors, according to the Austrian code of criminal procedure, is urged to be objective. This highly benevolent attitude vibrates through every courtroom but, in rare instances, Austrian public prosecutors enlighten the jury explicitly.
In the Alpen-Donau.Info trial, a certain district attorney mentioned during his final speech that, unlike elsewhere, Austrian law would obligate the public prosecutor’s office to appreciate both incriminating and exonerating evidence. Materially, legally and morally, there is absolutely nothing wrong with such a statement during a final speech. I am mentioning it because it illustrates the implications of the fallacious legal concept of an objective public prosecutor.
Everywhere, people put faith in the police — for no other reason than that the version of the police is usually (more or less) right. And as long as there is no police unit which compiles an alternative version to the benefit of a suspect, everywhere the police officers must be legally obligated to stay objective (to the best of their abilities), to consider both incriminating and exonerating evidence.
And since it is the task of the public prosecutor’s office to enforce criminal laws based on the findings of the police, it makes perfect sense to the Austrian legislator that, ideally, the public prosecutor’s office should be equally objective. Who could complain about this? Definitely not the defendant.
However, this reveals a grossly flawed understanding of how a criminal trial works. The objective prosecutor is a concept far less supportable than the idea of an inquisitive judge. The latter — if he were, in practice, truly fair and enlightened — could also use his omnipotence to repair a case to the benefit of an innocent defendant. In the end, the concept is a political preference related to the concentration of power. But to expect all-benevolent fairness and objectivity from a public prosecutor is absurd on a theoretical level — and the idea strips defense counsel of equitable influence.
A public prosecutor is not just a legally trained, refined version of the police. In a criminal trial, he is, even in Austria, always partial. Defense counsel defends the interest of the defendant (in justice) as well as the interest of the public (in due process of law). The opposing party, the public prosecutor’s office, defends the interest of the public (in law enforcement) as well as the interest of the victim (in justice).
There is definitely room for matter-of-factness, for sensitivity, for powers of empathy — but, as far as these two parties are concerned, no legal objectivity can be reasonably expected. It is the task of the judges, the lay assessors, the jury to be objective. Nor is there any need for it: The public prosecutor’s version is based on the objective version of the police and, by this very fact alone, the public prosecutor’s version is never entirely arbitrary and it has a starting edge over the defendant’s version. But in a criminal trial it is crucial to justice that the prosecutor’s version is not seen as an objective version. It must simply be seen as the state’s version: a reasoned version, a founded version, a version possibly implied by incriminating evidence — but maybe, just maybe, a wrong version.
Really, what can defense counsel, in the Alpen-Donau.Info trial, reply? During her final speech, the counselor-at-law of Felix. B. put on a robe (in Austria usually only worn by the judge and the district attorney what, in my view, depicts the reality in the Austrian judicial system very well) and stated smilingly: „Now I am objective, too.”
This was a quick-witted and good repartee for it amused the jury, but, still, in every criminal trial involving lay judges (jurors or lay assessors) the smell of the district attorney’s legal and factual objectivity is in the air — and it does not increase an innocent defendant’s chance to be acquitted. Since defense counsel is the only participant in an Austrian criminal trial not bound by law to be objective, its arguments frequently peter out.
After the defendants in the animal welfarists trial in Wiener Neustadt had left the court building, a (legally objective) district attorney, from a window, pointed a forefinger at them, forming an imaginary gun with his hand, and then pulled the trigger (represented by his thumb). Fortunately, a keen-eyed journalist had been on location. Naturally, the staunch supporters of hypocrisy in the establishment reacted swiftly. Politicians pretended to be indignant and demanded that the ugly district attorney is subjected to disciplinary punishment.
Certainly, such a behavior by a member of the body of public prosecutors is undesirable and undignified. But those in the body who manage to cover up their bias with deceitful composure are not any better (or worse). In reality, no district attorney is less bigoted than anyone of us. No judge is less prejudiced either. Both professional groups are, on average, smarter and have enjoyed a better legal training than most people but that is where it ends. Chances are fifty-fifty that your moral compass and sense for justice are superior to those of a random judge. And that is why the best (and frequently the only) chance for an innocent defendant to get off scot-free is a jury of peers.
An important reason for it is buried in criminal procedure. Once a charge is brought against a suspect and he stands trial as a defendant, both the police and the public prosecutor’s office consider him guilty. The judge, having intimate knowledge of the court records — the versions of the police and of the prosecution — (secretly) also presumes that he is guilty. Even the suspect’s attorney will, based on experience, frequently consider the defendant guilty. Only the jury, still free from pertinent prejudice, is able (and sometimes even willing) to re-evaluate the innocent defendant’s case (starting from scratch).
Fortunately, Austrian criminal procedure does provide for trial by jury. Jurors are called in for most political offenses and certain felonies. Transparency of (the allegedly random) juror selection could be improved and more extensive procedures to dismiss grossly biased jurors could be enacted but the core problem is of a different nature: Austrian juries are not requested to pass an unanimous verdict. A majority of votes suffices (to destroy someone’s life).
Historically, this has simply been a political compromise between egalitarians (who wanted jurors) and elitists (who wanted judges). And today, there are those amongst us who argue that unanimity would not matter: If jurors are requested to pronounce an unanimous verdict, they would simply keep on discussing until one faction has convinced the other. Most of the time, the majority would triumph. Most of the time, jurors at variance would, in the end, arrive at an unanimous verdict. And thus, a majority decision would lead to comparable results.
There is a lot of truth to this, indeed. Really, if a defendant is guilty, unanimous verdicts favor neither the prosecution nor the defense. They are not detrimental to the victim’s or the public’s interest in justice. They only and exclusively work to the benefit of an innocent defendant and the public’s interest in due process of law. And since all of us can stumble into the position to be erroneously charged with a crime, we all should be in support of unanimous jury verdicts. It does not matter anyway, right?
Unanimous verdicts have some advantages: If there is questionable evidence, if some jurors are not (yet) entirely convinced of the defendant’s guilt, the jury is requested to dig deeper, to re-examine the evidence until every juror’s reasonable doubt has been dissipated (or, alternatively, until every juror has developed reasonable doubt). This is only fair since, in an enlightened democracy, it is the public prosecutor’s very assignment to prove a defendant’s guilty beyond any (lay) judge’s reasonable doubt.
And if there is a strong public or governmental interest in prosecution but only ambiguous evidence, then there is a fair chance that there will be (at least) one juror who, maybe based on personal experience, has developed such a strong faith in justice that he is not willing to yield to peer pressure and to the majority’s suggestion that the ugly defendant is „most likely” guilty and that the police and the public prosecutor’s office „surely know what they are doing.”
In addition, in Anglo-American common law, the persistent reasonable doubt expressed by (only) a minority of jurors does not lead to final acquittal. It simply leads to a mistrial: the right of the public prosecutor’s office to charge a defendant in future again (with more evidence) is upheld. And thus, the victims’ rights are not encroached on either. Enlightened public prosecutors desire to get justice for the victims but they also desire to hold the true culprits responsible.
From Anglo-American experience, we know that unanimous jury verdicts have desirable consequences: While, in practice, even they cannot guarantee that no innocent defendant is convicted (albeit they definitely do improve the situation), they oblige the police and the public prosecutor’s office to produce better evidence. Consequently, fewer innocent suspects are charged. Hence, the lives of fewer innocent men and women are impeded. Plus, justice is not only done but, what is equally important, it is seen to be done by the public. Even if for no other reason than that there is an unanimous verdict pronounced by a jury of peers.
In the worst case, in a judicial system everything can fail: The penal norm is unjust or plainly ridiculous, the public interest is represented by the mob, the government is run by hypocrites, the police tampers with evidence, defense counsel is unfavorable, the judge is sleeping, the district attorney is a character assassin, the jurors are grossly prejudiced, and the defendant is an innocent scapegoat. But even in such a case, the verdict will be, at the very least, democratically legitimate — for no-one in a jury of peers had persistently insisted on reasonable doubt.
In Austria, jury trials work a bit different. In the Alpen-Donau.Info trial, the first defendant was pronounced guilty based on a 5 : 3 jury verdict. Can we really fairly assume that there has been no reasonable doubt if three of eight jurors think the defendant might as well be innocent? Ricardo Payerl — a regular observer of Austrian trials — annotated that „nobody should be convicted on the grounds of a mere assumption.”
Martin Sch., a Social-Democratic works council chairman, was charged with a heinous crime: according to the public prosecutor’s office, Martin and a loose acquaintance, Andreas B., had butchered two elderly women in order to misappropriate one of the ladies’ savings. Evidence against either one of them was questionable but that is why there are trials.
The jury pronounced Martin Sch. guilty based on a 7 : 1 vote but acquitted his alleged partner-in-crime Andreas B. based on a 4 : 4 vote. By Austrian criminal procedure, this is not a mistrial, it is an acquittal, for no majority of jurors had found the defendant guilty (as required by law).
Martin Sch., the works council chairman, feels that due to Austrian criminal procedure in his unfavorable position „anyone would have been found guilty.” He still professes that he is innocent. He has been sentenced to life imprisonment and is currently working on his application for retrial.
But Andreas B., certainly, was allowed to leave the court building as a free man, wasn’t he? Not exactly. He was not even released from prison.
As mentioned, the current Austrian jury system has been a political compromise. The professional judges can still overrule the jury, and in the second defendant’s case the judge did. This means that a defendant, whenever there is a strong governmental or political interest in his conviction, needs not only one but potentially two acquittals by a jury. This is definitely alarming. The right of a trial judge to suspend a jury verdict and to order a retrial, however, is also dogmatically absurd, even in the Austrian system.
Unlike in Anglo-American common law, in Austria nearly all attorneys, to say the least, are not exactly fond of trial by jury. The reasons are self-evident: the Austrian system makes it very hard for an innocent defendant who cannot (or is not willing to) prove his innocence to be acquitted. In practice, the Austrian system favors, even if there is no jury, the prosecution. But once a jury has pronounced a (majority) verdict, its decision is, as far as the question of guilt is concerned, (nearly) final. The appeal court can, unlike in the case of a judge’s verdict, no longer address the question of guilt, and the Supreme Court can (and will) do so only in rare exceptional cases.
Since Austrian juries are not requested to pass an unanimous verdict, since the persistent reasonable doubt of the minority is completely ignored, mistakes are, far more often than necessary, made to the detriment of an innocent defendant.
But this is a flaw related to procedure not to juries. In general, the regulation to make a jury’s verdict concerning the question of guilt final and indisputable is flawless. It is the very idea behind installing juries to reclaim some of the power from government and from the privileged and to put it back into the hands of the people (where it belongs). This cannot be done if professional judges in the appeal court are allowed to topple a jury’s verdict. Right or wrong, my jury.
And that is why a trial judge can also not be allowed to order a retrial if he does not approve of a jury’s verdict. If gross injustice has been done then there are other appeal, nullity, complaint and even retrial procedures anyway. But they do not question the jury’s verdict as such — it is about the proportionality of the sentence, about formal and procedural mistakes, about new evidence, about due process, about civil or human rights or about the unconstitutionality of laws. To give a trial judge the right to topple a jury’s verdict if he feels that the law has not been applied, however, is a backdoor to undermine the democratic process. If a trial judge is allowed to do it, why can’t the (more experienced) judges in the appeal court?
Behind all this still lurks the arrogant (and fallacious) idea that jurors are too unsophisticated, too emotional and too dull to follow complex cases or to apply the law. But jurors do not need to know „the law.” They only need to be acquainted with a handful of penal norms relevant to the specific case. If they should be uncertain about the legal interpretation of the norms, then there is a judge whom they can consult. And in a society where every other juror has a high school or college diploma, it does not make sense anymore to question a jury’s collective sophistication. We could as well question people’s right to vote. And to suggest that professional judges are less emotional, i. e. any less human, means to ignore both the findings of modern science as well as the experience gained in the last 6,000 years of recorded human history.
On the contrary: As a group, jurors have significantly more life experience than professional judges (who are privileged specialists). A jury is little short of a small panel of experts on life, and this makes its members much better judges in criminal law.
Like judges, jurors have a strong faith in justice and in criminal law enforcement as well as a strong empathy for innocent victims. But jurors have, on average, a more compassionate understanding for an innocent defendant’s position. The jurors, being averagely non-privileged people, can instinctively feel that, if fortune should ever not favor them, they or their beloved ones could easily find themselves in the same position.
Unlike in the case of judges, verdicts both popular and unpopular (with the public or the powerful) do not influence the jurors’ future careers. To jurors the chance to contribute something meaningful to justice is a chance „once in a lifetime,” and thus they take their assignment seriously.
The fact that in nearly every Austrian trial characterized by either no, poor or highly questionable evidence some jurors dissent from the majority demonstrates that (at least these) jurors — much more than judges — desire to decide cases on a „no reasonable doubt” basis.
How many verdicts of guilty based on poor and highly questionable evidence are Austrians still willing to tolerate? How many cases decided on a „who else could it have been?” basis are they still willing to take? How many innocent men and women are Austrians still willing to sacrifice before they will amend the code of criminal procedure (to the benefit of the people)?
Is an innocent defendant, in the current Austrian judicial system, likely to get justice? This time you be the judge. ◻︎