2023-10-05 21:10:22
Experts see a need for legal adjustments in some points
Vienna (PK) – Is it advisable to conduct parliamentary committees of inquiry in parallel with criminal investigations or should they wait, even if they take years? And how can potential conflicts be avoided or defused through simultaneous processes? These questions regularly concern politics, administration and the judiciary. This evening, at the invitation of the Parliamentary Directorate and the Austrian Society for Criminal Law and Criminology, a panel discussion took place in Parliament, with the focus primarily on practical legal questions. In addition to Susanne Reindl-Krauskopf, head of the Institute for Criminal Law and Criminology at the University of Vienna, and Markus Vašek, head of the Institute for Administrative Law and Administrative Studies at the Johannes Kepler University in Linz, there was also the head of the legal, legislative and scientific service of the Parliamentary Directorate , Gerlinde Wagner, and the head of the committee affairs and investigative committees department of the parliamentary directorate, Heidrun Neuhauser, on the podium.
There are some interactions between parliamentary committees of inquiry and criminal investigations. This means that those providing information are allowed to abstain from appearing before the U-Committee in ongoing criminal investigations. Evidence from criminal investigations sometimes finds its way into investigative committees. And false statements before the investigative committee can lead to criminal proceedings and convictions.
Criminal allegations and political responsibilities are often difficult to distinguish from one another, as Farsam Salimi, President of the Austrian Society for Criminal Law and Criminology, emphasized as moderator of the panel discussion. The interactions are highly complex, he said. He saw today’s discussion as the starting signal for a necessary further debate on a scientific and legal level in order to achieve greater legal clarity.
More sensitivity to personal rights
Parallel proceedings are not a new phenomenon, said Susanne Reindl-Krauskopf, head of the Institute for Criminal Law and Criminology at the University of Vienna, in response to Salimi’s opening question. However, the fact that there are now more frequent parallels between criminal investigations and U-committees is due, on the one hand, to new criminal offenses – for example in criminal corruption law – and, on the other hand, to tendencies in society to increasingly resolve conflicts through criminal law. If a report is filed, the law enforcement authorities are obliged to investigate it.
While investigations are designed to be secret, also to avoid stigmatizing the accused person – following all, the allegations might prove to be unjustified – public relations play a major role in U-committees, Reindl-Krauskopf pointed out. There is also no formal accused in U-committees, whereas in legal proceedings a distinction is made between witnesses and accused. The latter are allowed to remain silent and are not liable to prosecution if they make false statements, while those providing information on U-committees are generally obliged to tell the truth. Although they might – like witnesses – invoke the need to testify, in their opinion the solution is “lagging”.
Reindl-Krauskopf also emphasized that the questioning situation in U-committees is different than in court, where there is a clear structure. Things are often very emotional in U-committees, and interviews are carried out by many actors, often combined with the presentation of documents. This makes it difficult for respondents to keep track of what is being said. Against this background of the different distribution of roles, she does not believe that the provisions on false statements can be transferred one-to-one to U-committees.
Reindl-Krauskopf sees a further problem in the fact that documents that investigative authorities are not allowed to take into account – for example if it subsequently turns out that they were seized illegally – can be used via the investigative committee’s detour, and this also poses the risk that they will be used reach the public. She understood that the investigative committee wanted to have as much information as possible, she said, but from a criminal law point of view it was “very difficult to bear” that information had to be transmitted that may not be used in the criminal proceedings themselves. This would affect the rights of the accused. At least evidence that must be destroyed according to the Code of Criminal Procedure should be exempt from the obligation to submit files, suggested the criminal law expert in this sense and advocated taking a closer look at Section 23 of the Code of Procedure for Parliamentary Committees of Inquiry in this context. Reindl-Krauskopf also cited MPs’ greater sensitivity to personal rights as a concern.
Mutual consideration between investigative authorities and U-committees
Gerlinde Wagner, Head of the Legal, Legislative and Scientific Service of the Parliamentary Directorate, emphasized that the thrust of a U-Committee differs significantly from the thrust of criminal investigations, even if the same events are being investigated. U-committees are regarding political control and political responsibility. The Constitutional Court did not give priority to criminal investigations in its jurisprudence; rather, mutual consideration was provided for. For example, summons lists would have to be sent to the Ministry of Justice, which can initiate a consultation process if there is a connection with criminal investigations. For example, it might be agreed that certain files and documents will only be sent to the committee later or that certain topics will be left out when interviewing the respondent.
Problems in practice
In practice, however, this does not always work smoothly, as Heidrun Neuhauser, head of the committee affairs and investigative committees department of the parliamentary directorate, reported. Although the conclusion of a consultation agreement with the Minister of Justice is the responsibility of the chairman of the committee of inquiry, the usual practice in committee work is a consensus between the parliamentary groups. However, they have different interests in what should be discussed in the U-Committee. In addition, you are often under time pressure as people who provide information are sometimes invited at very short notice.
Another problem Neuhauser mentioned in practice was that the investigative committee was not always aware of whether a person providing information was being investigated. Although cooperation with the judiciary generally works well, there is no standardized transmission of information. Therefore, information often comes late or incomplete, which not only complicates the preparation of the parliamentary groups, but also the preparation of the trial judge for the questioning. The most unpleasant thing that might happen is if a respondent only finds out in the U-Committee that they are being investigated, for everyone involved.
When asked what her personal wishes were, Neuhauser said it was time to adapt the rules of procedure for committees of inquiry and the information rules to the reality and developments of the last few years.
Comprehensive obligation to submit documents
Markus Vašek, head of the Institute for Administrative Law and Administrative Theory at the Johannes Kepler University Linz, pointed out that the parallelism of U-committees and criminal investigations was already laid down in the constitution. Provisions have been made for this since the U-Committee reform in 2014. Although investigative committees have a different goal than criminal investigations, they are generally not prohibited from investigating illegalities: “The investigative committee does not end where the criminal proceedings begin.”
Vašek also pointed out the jurisprudence of the Constitutional Court, according to which fundamental rights and data protection do not conflict with the submission of files. Basically, everything that is available must be presented. Also things that are not included in the investigation and should have been destroyed. However, it has not yet been decided whether the Minister of Justice might refuse to submit files on the grounds that criminal investigations are at risk. (end) gs
A NOTICE: Photos regarding this event can be found in Parliament web portal.
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