Marcus Omofuma: Murder unpunished

28.Apr.02 - Marcus Omofuma, 25, died May 1, 1999. He died on a plane removing him from Austria. He died because three Austrian officers strapped him to a seat and taped his mouth and nose shut. When he tried to scream, according to witnesses they tightened a belt across his chest. The killers of Marcus Omofuma will walk free. A district court found the three policemen guilty today in the death of the Nigerian immigrant during his deportation and gave them suspended eight-month sentences. The court in Korneuburg, just north of Vienna, found the three men guilty of negligent homicide but acquitted them of torture leading to death, punishable by a maximum of 10 years in prison. Judge Alexander Fiala told the court that - while Omofuma's death struggle must have taken 'at least half, probably one hour'' - there was no evidence to show that the three defendants meant to torture him. Fiala said none of the defendants had a criminal record. Also, the three cooperated with the court and Omofuma 'shared partially in the guilt'' by resisting his extradition.

The 25-year-old refugee was deported after being refused asylum by Austrian authorities and he was being flown from Vienna to Sofia, from where he should have continued on to Lagos. But Omofuma had died by the time he arrived in Sofia, and Bulgarian doctors who examined him when he arrived said he had died of asphyxiation. This is not an isolated case. A report by the Council of Europe states that at least 10 persons have died since 1998 in EU countries in the course of forcible deportation. This tally does not include the consequences suffered by deportees in the countries of destination.

After Omofuma's death there was a major political scandal. The government majority parliament, at that time of Social Democrats and People's Party, defeated opposition attempts for a parliamentary inquiry. There were many calls for then interior minister, Karl Schloegl, to resign, which were also rejected.

The Judgment (not absolute - pending appeal) of the District Court of Korneuburg under the chairmanship of Judge Fiala as follows:

Guilty of causing death by negligence under particularly dangerous circumstances. Sentence: 8 months 7 three years probation.

Grounds:

The court considered it proven that on the 1st of May 1999 Marcus Omofuma was subjected to the following treatment at the hands of the three aliens policemen -his mouth was taped, his jaw was fixed in place prohibiting vertical movement, his head was fixed to the headrest, his chest was taped to the seat back from elbow to shoulder, that in the area of his chest he was also bound for a short time with Velcro fastener and and that he was subjected to 2 or 3 further blows with adhesive parcel tape when he moaned, so that all possibilities to articulate anything were prevented. As a consequence Marcus Omofuma slowly suffocated to death over a period of at least one half to one hour. In this point the court relied on the expert testimony of Professor Brinkmann.

Thus the court accepted that the objective facts of the case led to the conclusion that the prisoner had been tortured but that the necessary intention on the part of the officers had not been shown.

Intention of this nature had not been demonstrated by the Public Prosecutor, who had relied on Dolus Eventualis - that is, toleration of circumstances which would logically lead to death, nor was it possible to say that there had been enough evidence during the trial itself. The testimony of one witness who stated that an officer had laughed while taping the prisoner was not of itself sufficient.

The practice of taping prisoners was not being used for the first time but was an everyday occurrence and this was also a ground for saying that there was no intention to torture since for the accused it was simply part of their job and that it was not done 'in order to torture but in order to silence the prisoner and to avoid being bitten'.

The accused in the dock could not be regarded as solely responsible. Their direct superiors and those further up were partially responsible too. The initiation of proceedings against them was not the duty of the court but lay with the Director of Public Prosecutions. Decisive for the case was the fact that death was not due to a heart defect but to brain death caused by suffocation. The suffocation was caused, amongst other things, by the fact that adhesive tape does not behave in the same manner as rope but sticks and if used immediately after breathing out prevents breathing in again.

The finding of guilt derived from the fact that when I treat a person in such a manner and he is in my care and custody there is an increased responsibility to ensure that nothing adverse occurs. Marcus Omofuma was given no possibility of articulation. The officers were duty bound to ensure that they could communicate with their prisoner. The possibility of creating panic, should Omofuma have shouted, was in no way proportional to the anticipated danger. In any case there was no likelyhood that Omofumas cries would have led to panic in a machine as loud as the one in question. It would have been better to break off the deportation prior to take-off should further resistance have been offered. It was foreseeable that something could happen and it was reasonable to expect the officers to be aware of this. The fact that nothing had happened under similar circumstances in the past did not excuse the officers in any way and could be ascribed to luck or to less excessive tying up.

Determining the Sentence:

The court could determine no aggravating circumstances. The long duration of the situation was balanced by the danger involved. Mitigating factors were irreproachable life of the accused, their previously good reputation, their contribution to ascertaining the truth, the length of the proceedings, the fact that the accused were not the only ones responsible but also those 'who stand above them'. Marcus Omofuma could also be said to have a share of the blame in that he offered resistance to the officers carrying out their executive duties.

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