In the Tiroler Tageszeitung of 17 May 2020 in the “Letter to Tyrol” our partner, lawyer Ivo Greiter, demanded the independence of public prosecutors from the Minister of Justice when it comes to bringing charges.
Why the right of instruction urgently has to be restricted
The so-called “Council of Directives” (Weisungsrat) exists since 2015. The Minister of Justice has to submit a proposal to this council as to how exceptional cases will be handled, for example”with extraordinary public interest” or “with repeated and nationwide media coverage”. But, in the end, it is again the Minister of Justice who decides whether charges can 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 right to due process.” But this is exactly what happened in a number of cases: Udo P. (Lucona case), where the former minister prevented prosecution. The subsequent independent Minister of Justice finally had charges brought. Six murders were established by the court: life imprisonment for Udo P.
Cases have also repeatedly come to light in which no charges were brought, obviously because of instructions from above: 696 police officers repeatedly took handouts from around 50 heavy goods transport companies, the Bureau for Internal Affairs (BIA) claimed in a criminal complaint. The Federal Ministry of Justice closed the case as being a trivial matter: “The majority of officers only took small sums of money.” But the hard core earned up to 1000 euros per month, 400,000 euros were apparantly paid in two years. According to an order by the Ministry of Justice, Governor H.’s Chief of Protocol did not have to appear in court for making false statements…
There is also repeated criticism by public prosecutors: 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, at the time President of the Association of Austrian Public Prosecutors and later Chancellor (2019-2020). Bierlein repeated the public prosecutors’ long-standing demand for the abolition of the right of instruction, saying that this power of the Minister of Justice had to be removed, as this was where political influence could be exerted.
My solution comes from Dr. Steininger, the President of the Supreme Court (1994-1998): It is that the Minister of Justice may no longer give instructions to stop charges being brought. He can only give instructions to bring charges against someone if the prosecutor is not active. 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, on the topic 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 free of influence”. Perhaps our Minister of Justice Dr. Alma Zadić will – after decades of efforts – succeed in actually securing the independence of the Austrian criminal justice system from politics by restricting the right to issue directives .
The Innsbruck lawyer Ivo Greiter (law firm Greiter, Pegger, Kofler) has been calling for the right of instruction to be restricted since his first lecture at the “Judges’ Week” in 1990.