Kafka in Vienna

Josef S. was sentenced yesterday by the Vienna Criminal Court to a prison sentence of one year (eight months of which are conditional on a three-year probation) for breach of peace (as ringleader), attempted aggravated assault and aggravated criminal property damage. [Update: The verdict is not final and may be appealed.] The prosecution against Josef was an attack on the rights of free speech and free assembly. His conviction is a disgusting perversion of law and justice.

24 January 2014

On 24 January, Vienna witnessed this year’s iteration of a tradition of Austrian fascists and the far-right (including racist student fraternities and the Freedom Party, the political roots of which lie in post-World-War-II Nazi movements), the “Academics Ball”, which serves as a prominent networking event and party for Austrian and European right-wing politicians and activists. A more recent tradition was also honored, namely anti-fascist counterprotests against the ball.

A small portion of the approximately 6000 counterprotesters turned to violence. Police riot units were attacked, shop windows smashed and a police station and a police car were vandalized.

Josef S., a 23-year-old student from Jena, Germany, took part in the protest. He was arrested and charged as a ringleader of the violent mob, allegedly commanding the black bloc. He was jailed on remand, where he was kept until today, about half a year.

At trial, only evidence for police incompetence

It emerged that the main incriminating witness was an undercover police officer who had observed and followed Josef S. at the protest. Josef S. wore a distinctive sweater, which aided his later identification in photographs and video. The undercover police officer first claimed that he had heard Josef S. shout commands at black bloc protesters before and during the protest and that Josef S. took part in damaging the police station, throwing a smoke bomb into the police car. It turned out, however, that this witness was the only evidence against Josef S. Furthermore, his testimony proved false when an expert opinion found that the voice identified by the witness as Josef S.’s was, in fact, not his. Strong evidence to the police’s and prosecutions’ incompetence was revealed before and at trial:

  • The undercover police officer recorded video on his personal cellphone during the protest and later deleted some at his own discretion.
  • He lost contact with the two other officers who accompanied him and was arrested himself for a short time until he could prove that he was a police officer.
  • He wrote his mission report only after watching several news reports and YouTube videos about the protest.
  • The jacket Josef S. wore at the protest was seized from his cell only ten days after his arrest, his gloves only four months later. An expert found minute traces of pyrotechnics on his gloves (but not on other clothes; the expert testified that this does not prove that Josef S. actually handled any pyrotechnics).
  • Finally, on the night of the protest, police were woefully unprepared for any escalation, despite their loud-mouthed propaganda beforehand, warning against “protest tourists from Germany” and other shameful inflammatory remarks. When some of the protesters turned violent, they vastly outnumbered police, most of whom were not from Vienna and therefore unfamiliar with the terrain.

Numerous police officers who were at the scene when the police station was attacked denied spotting Josef S. there. Further testimony from police officers who were at the location of the initial outbreak of violence also did not place him there. Video from a camera crew and a store surveillance camera only made it clear that Josef S. was near the violent protesters, which he never denied. The videos further established that Josef S. was too far away at the time of the recording to reach the damaged police station at the time of the attack. Two freelance photographers testified that upon review of all their photos of the protest, they could not establish any connection between Josef S. and any violent acts.

Shaky verdict

Despite the lack of any corroborating evidence, the court (consisting of one professional judge as presiding judge and two lay judges) convicted Josef S. on the testimony of the undercover police officer alone. The presiding judge noted that the witness was credible and that Josef S.’s actions were highly suspect, namely his participation in the protest near violent protesters; that he righted a trash can that was toppled over (supposedly indicating that he later used the trash can to attack the police); and that he had obtained an Austrian phone number and SIM card (the judge wondered why a peaceful protester with a German phone number would need this).

Why it matters

Dead law, resurrected

Josef S. was convicted for breach of the peace, Section 274 of the Austrian Penal Code[link in German]. The statute is very seldomly applied; it was not even discussed in my criminal law classes. In short, it criminalizes “knowing participation in a mob that intends to commit murder, manslaughter, assault or aggravated criminal property damage”. Obviously, this could be used to prosecute a large group of people engaged in protests guaranteed by the right of free speech and free assembly, as long as some violence occurs. Perhaps surprisingly, the Austrian criminal justice system has only recently made such use of the statute. Josef S. was convicted under the more serious charge of leading a breach of the peace.

To judges, police is infallible

During sentencing, Josef S.’s judge strongly emphasized the credibility and reliability of the police officer who testified against S. He downplayed the officer’s contradictions with his own testimony and other evidence. In particular, he stressed that the witness has no reason to lie and incriminate Josef S. This narrow view is not sustainable. While the police officer may not have any quarrels with Josef S. personally, he had a manifest interest in securing the conviction of a person arrested and strongly incriminated by police (specifically by the officer in question himself); an acquittal of Josef S. would have elevated the obvious incompetence of the police to a legal certainty.

The verdict emphasizes the strong bond between police, prosecutors and judges in Austria. A strong belief in authority pervades the populace and the police is infested with a strangling esprit de corps. Our constitution and statutory law considers both prosecutors and judges part of the judiciary, which in various ways leads to a lack of role awareness and role fulfillment, as well as strong bonds between the two institutions, which in turn increases incentives for judges to convict.

Chilling effects

Besides the application of Section 274 mentioned above, the verdict sends a clear message: The state does not approve of statements of civic convictions on the streets. It regards dedication to political, conscientious and moral causes as suspect; more so if these causes belong to the political left, or if the person in question taken upon him/her the burden of travelling to a neighboring country.

In summary:

This affects Josef S., but it addresses us all.

 Sources (in German)