Keep your hands off the Judiciary!

Keep your hands off the Judiciary!

In the Tiroler Tageszeitung of 17 May 2020 in the “Letter to Tyrol” our partner, lawyer Ivo Greiter, demands the independence of public prosecutors from the Minister of Justice when it comes to bringing charges.

Brief an Tirol, TT 17. Mai 2020

Why a reduction of the right to issue orders is urgently needed.

There has been a so-called “Council of Directives” (Weisungsrat) since 2015. The minister must submit a proposal to this council  for the handling of special cases “because of the extraordinary interest of the public” or “in the case of repeated and supra-regional media coverage”. But in the end it is again the Minister of Justice who decides whether charges may be brought or not. A clear possibility for politicians to influence the judiciary. It is clearly stated in §83 of our Constitution: “No one may be deprived of his legal judge.” And that’s what happened in a number of cases: Udo P. (Lucona case), where the former minister prevented the prosecution. The saying of this minister, “the soup is too thin”, is well known. The subsequent independent Minister of Justice then finally had charges brought. The court then found six murders: life imprisonment for Udo P.

In addition, cases have repeatedly come to light in which apparently no charges were brought by instructions from the top: 696 police officers repeatedly held out their hands to around 50 heavy goods vehicle companies, the Bureau for Internal Affairs (BIA) claimed in a criminal complaint. The Federal Ministry of Justice closed the case as a trivial matter: “The mass of officers only took small sums of money.” But the hard core earned up to 1000 Euro per month. 400,000 euros should have been paid in two years.

According to an order of the Ministry of Justice, the head of protocol of Governor H. “does not have to appear in court for false statements…” The prosecutors are also critical: The ministerial right of instruction is “a remnant of cabinet justice, where politics decided who and how someone is brought before a criminal court”, said Brigitte Bierlein, then President of the Association of Austrian Public Prosecutors and later Chancellor (2019-2020). Brigitte Bierlein. Bierlein renewed the age-old demand of the public prosecutors for the abolition of the right to issue directives, saying that the head of the Justice Minister’s office had to be removed because that was where political influence could be exerted.

My solution comes from Dr. Steininger, the President of the Supreme Court (1994-1998): that is, the Minister of Justice may no longer give instructions to refrain from making an accusation. He may only give instructions to charge someone if the prosecutor is inactive. It must not be the politically appointed Minister of Justice who ultimately decides whether someone is to be charged or not. In the justice programme of the current government 2020-2024, under the heading of criminal procedural law for an independent judiciary and the fight against corruption, the first point states: “The public prosecutor’s office must be able to work independently of influence. Perhaps our Minister of Justice Dr. Alma Zadić will succeed in actually securing the independence of the Austrian criminal justice system from politics by halving the right to issue directives after decades of efforts.

The Innsbruck lawyer Dr. Ivo Greiter (law firm Greiter, Pegger, Kofler) has been calling for the right to issue directives to be halved since his first lecture at the Judges’ Week in 1990.