This text has it all: The judiciary itself has now reacted and lodged a complaint against the house search of the media makers Wolfgang and Helmuth Fellner. The complaint text of the legal protection officer Gabriele Aicher available to eXXpress is nothing more than the most damning criticism of the WKStA’s approach to date. The main objection: The raid that was ordered in the media company “Austria” was entirely unlawful. But that’s not all. According to the complaint, the procedure in the entire large-scale Ibiza proceedings also violates Article 38 of the Federal Constitution. Accordingly, so many different procedural complexes – just think of the countless accused meanwhile, from Heinz-Christian Strache, Thomas Schmied, Josef Pröll to Sebastian Kurz – should never have been combined in a single procedure. But one after the other.
The search of the Fellner’s house was illegal for two reasons. Initially, there was no urgent suspicion against either of them. There are neither objective characteristics of a crime, nor can the intent be identified. In the words of the legal protection officer: “An urgent suspicion has not been presented separately, nor can it be inferred even rudimentarily from the entire text, although the evidence does not support such conclusions. In the absence of an urgent suspicion, the order violates the law. “
In other words, the investigators did not set out to add or substantiate the suspicion, nor would they have succeeded if they had tried. Elsewhere, the complaint also speaks of the “lack of determination and justification of the urgency of the suspicion”. What the WKStA holds against the media company “Austria” is criminally irrelevant.
The expert Aicher expressly criticizes the statements of the WKStA. She writes, for example: “The sentence ‘Wolfgang and Mag. Helmuth Fellner was about getting the highest possible sums for advertisements placed in the Fellner Group’s media” cannot be assigned to a criminal category. ” The “Tatplan” cited by the WKStA also mentions “only chat messages with Mag. Helmuth and Wolfgang Fellner as part of the assessment of evidence, without even addressing circumstances related to the facts”. And on the charge of infidelity, “the accused are not even mentioned”.
But apart from the lack of urgent suspicion, the house search should not have taken place for another reason.
Authorizing the raid was illegal. The necessary authorization by the legal protection officer was missing: “The approval by a resolution requires an (express) authorization, its lack of which makes the resolution unlawful.” The legal officer also describes how this authorization was allegedly deliberately circumvented. The descriptions neither cast a good light on the WKStA, nor on the responsible judge, nor on the Federal Office for the Prevention and Fight against Corruption (BAK).
So the “judge would have to check the existence of an authorization … and if it was not present, the application would have to be rejected by a resolution”. In doing so, the judge is said to have had little time, because “the judicial control function was not taken into account due to the shortened issuance option”.
But the BAK does not seem to have played a good role either: “A review by the legal protection officer … was made impossible by the BAK because it refused to contact the public prosecutor when asked what they should say”.
However, the third objection of the legal protection officer is explosive for all investigations: The suspicion against all the accused is based on “chance discoveries”. The complaint is that no separate file was created for the individual proceedings. It was therefore always the same judge who approved the house searches. At the same time, the number of suspects and thus the number of lawyers – now around 50 – increased considerably, which also increased the possibility of using the lawyers involved to send documents about the suspects to the public.
But that, too, is illegal according to the legal protection officer Gabriele Aicher. Failure to separate the proceedings contradicts the provisions of Paragraphs 27, 140 Paragraph 2 of the Code of Criminal Procedure.
The last criticism is explosive. You can understand why the WKStA reacted so sharply in the morning.
