Complete Suppression of the Testimony of an LVT Officer

(English translation of the German original.)

One of the substantial suppressions of decisive evidence by public prosecutor Johannes W. concerns the statement of officer Marijo K. from the LVT Vienna (State Office for the Protection of the Constitution and Counter-Terrorism).

This LVT officer K. had known Mr. Qarar for years and repeatedly sought him out for personal conversations. He likewise monitored him over many years, including the entire alleged period of offending named by public prosecutor Johannes W.

During a witness examination of that officer K., he fully exonerated Mr. Qarar. Through his statements, all assertions made by public prosecutor Johannes W. were fundamentally refuted. After all, officer K. monitored Mr. Qarar over the entire period and was nevertheless unable to confirm any of the prosecutor's assertions in any way.

Rather, he clearly contradicted the prosecutor's assertions, as can be seen from the following tabular list. The exact source references are contained in the statement on this website:

In his insistence on the continuation of the pre-trial detention at the time and on renewed detention, preferably also for a very long time, public prosecutor Johannes W. completely suppressed the statements of officer K.

The question also arises here why the Graz Higher Regional Court agreed to the extension of the pre-trial detention. The examination of LVT officer K. took place in March 2017. Although his statement considerably exonerated Farhad Qarar with regard to the central accusations, the Higher Regional Court extended the pre-trial detention and maintained it until June 2017.

The later release from detention was substantially connected with this witness statement. It weighs all the more heavily that, more than two years later, detention against Qarar was again requested, still without the exculpatory information provided by the LVT officer being adequately taken into account.

This approach by the public prosecutor and the Higher Regional Court is, from a legal perspective, rather questionable for the following reasons:

Violation of Objectivity and Ascertainment of the Truth

The Austrian Code of Criminal Procedure obliges the public prosecutor's office, criminal police, and court to ascertain the truth. Section 3 of the Code of Criminal Procedure requires that all facts significant for the offence and the accused be clarified. Particularly important in this regard is that public prosecutors and criminal police bodies must investigate incriminating and exculpatory circumstances with equal care.

If, therefore, an LVT officer stated as a witness that central incriminating assumptions precisely could not be confirmed, and this statement was in fact suppressed in detention applications, applications for continuation of detention, or the indictment, the legal accusation of a violation of the public prosecutor's office's duty of objectivity is obvious. A central exculpatory piece of evidence should not simply have been passed over in the assessment of suspicion and detention.

In the case of pre-trial detention, this is even more serious. Under Section 173 of the Code of Criminal Procedure, pre-trial detention may only be imposed or continued if there is strong suspicion of an offence and a statutory ground for detention. The strong suspicion must be assessed on the basis of the evidence available so far. Exculpatory circumstances are not decorative accessories in this context, but part of the assessment of suspicion.

If an officer who knew or observed Qarar over a longer period does not confirm substantial assertions or even contradicts them, this can considerably weaken the strong suspicion. If something like this is not mentioned in a detention context, consideration must be given to the fact that the detention decision may have been based on an incomplete or distorted factual basis. This is not merely about "unfairness", but about deprivation of liberty.

Problematic Blanking Out in the Indictment

Section 211 of the Code of Criminal Procedure regulates the content of the indictment. In it, the public prosecutor's office must, among other things, cite the evidence that is to be taken in the main proceedings and summarise and assess the facts according to the results of the investigation.

It does not necessarily follow from this that every exculpatory statement must be discussed in detail. But if a statement is central to the suspicion because it touches on the core thesis of the indictment, then its suppression can become problematic. The non-consideration of such a witness statement could directly affect the viability of the suspicion and the coherence of the indictment.

Suspicion of Abuse of Office – Especially in the Case of Consistent and Continuing Suppression

A conscious suppression of central exculpatory witness statements can furthermore — depending on proof of knowledge, intent, and intention to violate rights — give rise to suspicion of abuse of office under Section 302 of the Criminal Code.

A single omission can theoretically still be presented as an error of assessment or a problem of overview of the files. Even that is already problematic in the case of public prosecutors, because Section 3 of the Code of Criminal Procedure — as mentioned above — obliges them to objectivity and ascertainment of the truth. A continued failure to mention despite knowledge, however, weighs significantly more heavily.

If the public prosecutor knew the statement of the LVT officer, it was substantively relevant, and he later repeatedly failed to mention it — for example in detention applications, continuations of detention, and finally in an extensive indictment — then an excuse based on "ignorance" is substantially weaker.

In the Austrian Criminal Code, for example, Section 302 of the Criminal Code states:

[Read the German version]