2024-01-16 17:18:05
Zadić: Independent and non-instructional public prosecutor’s office continues to be an important concern
Vienna (PK) – 143,217 eligible voters are campaigning to ensure an independent judiciary in Austria in a referendum (2078 d.B.). The Justice Committee held an expert hearing on this today. In order to ensure criminal proceedings that are not politically influenced, the referendum specifically calls for the reinstatement of the examining judges who were abolished in 2008. Furthermore, the inclusion of the Economic and Corruption Public Prosecutor’s Office (WKStA) in the constitution is called for and the establishment of a federal or general public prosecutor’s office with continuity is called for. Their personnel independence is already decisive in the appointment process. The latter has to be responsible to Parliament, but only with regard to information regarding procedures that have already been completed. According to the explanation, this is intended to counteract the appearance of political influence on ongoing investigations.
After an independent federal public prosecutor’s office had been called for for a long time, the representative of the referendum, Marcus Hohenecker, spoke out in favor of finding a political compromise to promote the independence of the judiciary, at least on this point. As one of the representatives of the referendum, Anatolij Volk pointed out that, from his perspective on permanent debates, political influence on the judiciary destroys the trust of the population and damages democracy. In addition to the demand for the introduction of an independent public prosecutor’s office, he highlighted the initiative from the referendum to reintroduce the examining judges and to include the WKStA in the constitution. He appealed to MPs to take calls for an independent judiciary seriously. In addition, it is important to make referendums and their demands fundamentally binding, says Volk.
Justice Minister Alma Zadić highlighted the issue of a politically independent general and federal public prosecutor’s office free from instructions as an important concern in the referendum. She pointed to the report of a working group set up for this purpose, but also to systems in other countries that were moving towards a top management “away from politics”. She believes that a Senate at the top of the public prosecutor’s office is the right solution – other questions, such as parliamentary control, need a broad discourse in order to find a consensus.
In the current legislative period, many steps have been taken to secure the judiciary, emphasized Zadić. There was also an immediate response to suspicions that politicians were at least attempting to exert political influence by convening an investigative commission.
Expert perspective on the three main demands of the referendum
Criminal law expert Peter Lewisch sees the demands of the referendum as at least cause for further discussion. In his view, a federal prosecutor does not get rid of the issue of political influence on appointments, but it does make it less transparent and dilutes political responsibility. In addition, the question arises as to how great the added value is. Lewissch believes that the topic is overestimated from this point of view. In his view, the issue is underestimated in that judicial and prosecutorial efficiency would suffer under a system that might move in the direction of quasi-judicial self-administration with limited supervisory and control rights. In his view, the approach of limiting Parliament’s responsibility only to completed criminal proceedings should also be questioned. Lewisch would consider the reintroduction of examining judges to be a “radical reform” and is therefore not recommended. As far as the demand for the WKStA to be anchored in the constitution is concerned, in his view this does not fit with the constitutional structures.
From a fundamental rights perspective, constitutional lawyer Heinz Mayer spoke out in favor of a clear no to the reintroduction of examining judges, especially since the current separation regarding fundamental rights interventions and approval by judges provides better legal protection. In his opinion, the demand to write the WKStA into the constitution as an individual public prosecutor’s office should not be approached. Mayer, however, described an important point in making the public prosecutor’s office independent and free from instructions, similar to that of the courts. The public prosecutor’s offices are organs that are part of the ordinary judiciary. Here, senates should be the highest authority and subject exclusively to control by courts, as well as for ongoing proceedings that should not be subject to parliamentary control. There should be no way around setting up senates, said Mayer, who also spoke out once morest parliamentary appointment of prosecutors, as that would inevitably lead to politicization.
Walter Geyer, former head of the corruption prosecutor’s office, also expressed his opposition to the reintroduction of examining judges, with regard to the current legal protection function of judges. In contrast, an examining judge checked himself. He also might not support the demand to include the WKStA in the constitution, especially since the constitution contains the legal foundation and principles but no detailed regulations. In his view, however, there is increasing support for the introduction of a federal public prosecutor, although how this should be designed cannot be discussed intensively enough. In his view, the aforementioned working group delivered a suitable result, for example with regard to as little political influence as possible in the appointment, that Parliament should not have any influence on ongoing proceedings and that decisions in individual criminal cases should be made by a three-judge panel. The latter is an important point and leads to an improvement in quality and greater acceptance among the population compared to individual decisions. From his point of view, the European Public Prosecutor’s Office represents a successful reference model on this topic, said Geyer.
When it comes to the issue of reintroducing examining judges, both the old and the new systems have advantages and disadvantages, said Michael Rohregger, a lawyer specializing in white-collar criminal law and constitutional law. However, a return would involve serious changes such as a comprehensive reorganization. He sees no correspondingly serious deficits that would require a reintroduction. As far as anchoring the WKStA’s area of responsibility in the constitution is concerned, he considers such a step to be neither necessary nor sensible. As organs, the public prosecutor’s offices are already anchored in the constitution. When it comes to the issue of a federal prosecutor, the answer is not easy, said Rohregger. He still sees a need for a longer consideration process here. In his view, an independent leadership would deviate from a fundamental constitutional principle and would have to think carefully regarding how to secure this with detailed regulations. In addition, this would only shift problems to another level, for example when people have a certain political agenda. In addition, there is a much more urgent need for action on other points – such as long proceedings – than at the top level, although the independence of the judiciary is an important issue overall.
Positions of the MPs on the demands of the referendum
In the subsequent debate, Klaus Fürlinger (ÖVP) stated that the demands of the referendum might not be reconciled with the democratic principle. As part of his work as a practicing lawyer, he did not notice the problems discussed. Corinna Scharzenberger (ÖVP) emphasized that enshrining the WKStA in the constitution would only guarantee its existence, but not any organizational improvement. Accordingly, the anchoring does not meet with cross-party approval.
“No, we are not turning back time,” was the SPÖ’s stance on the reintroduction of examining judges. Selma Yildirim (SPÖ) also considered the required constitutional anchoring of the WKStA to be “not a viable option”. The Federal Public Prosecutor’s Office, on the other hand, is a long-standing demand of the SPÖ and is absolutely necessary. Muna Duzdar (SPÖ) confirmed that no one wants to return to the old system with examining judges because it was a deficient system. However, Duzdar recognized structural problems such as long proceedings, limited accessibility to the courts and a lack of interpreters.
Harald Stefan (FPÖ) also considered anchoring the WKStA in the constitution to be a false demand. With regard to the Federal Prosecutor’s Office, he stated that shared responsibility is not responsibility. He therefore spoke out once morest a collegiate body. It is important to ensure the objectivity of appointments, says Christian Ragger (FPÖ).
Agnes Sirkka Prammer (Greens) emphasized that the demands of the referendum might not be met together. In your opinion, these are mutually exclusive. Prammer questioned the priorities of the proponents of the referendum and how the demands relate to each other. The Greens also spoke out once morest securing a single authority in the constitution. Prammer was convinced that the planned creation of a public prosecutor’s office would strengthen the independence of the judiciary. “How much independence works?” Ulrike Fischer (Greens) asked the experts.
The three demands of the referendum are not consistent or compatible with the constitutional system, said Johannes Margreiter (NEOS). He wanted to know from the experts how an independent judiciary might be ensured. Margreiter also turned to Rohregger and Lewisch with questions regarding the system change in 2008. He was particularly interested in whether any deficits were perceived as a result. He himself might not determine any loss of legal protection.
Experts: The core of the discussion is limited to a small number of cases
The core of the discussion is limited to a very small number of procedures with political interest, Geyer and Rohregger agreed in the further debate. Geyer saw no need for changes in the normal operations of the courts and public prosecutor’s office.
When asked regarding NEOS, Rohregger said that white-collar and corruption crimes have increased enormously since 2008. At that time, organizational issues were in the foreground. Rohregger formally answered the question of whether an examining judge would bring greater independence. Where this plays a role in practice, the solution should be sought at a different level, was the expert’s assessment.
Lewisch took the position that public prosecutors are not and should not be exempt from instructions. The top management is already independent, he referred to the minister. From Lewisch’s point of view, there are opportunities for improvement in case management and the initial suspicion assessment. In contrast, Mayer spoke out in favor of ensuring the independence of prosecutors on the same level as that of judges. The head of the public prosecutor’s office must be free from instructions, he countered Lewisch.
A report on the discussions on the referendum will be submitted to the National Council for further consideration. (Final) mbu/gla
NOTE: The expert hearing in the Justice Committee is available as video-on-demand in the Parliament’s media library available.
Questions & Contact:
Press service of the Parliamentary Directorate
Parliamentary correspondence
Tel. +43 1 40110/2272
pressedienst@parlament.gv.at
www.facebook.com/OeParl
www.twitter.com/oeparl
1705426842
#Referendum #independent #judiciary #Expert #hearing #Justice #Committee
