Meanwhile in Austria...

Trial of three alien police officers ... or is it really the trial of Marcus Omofuma? A résumé of the first two weeks of the trial

07.Apr.02 - The trial of the three alien police officers began in the District Court Korneuburg on the 4th of March 2002. The charge was 'torture of a prisoner resulting in death'. On the 1st of May 1999, while in their custody, Marcus Omofuma died during his violent deportation to Nigeria. He was bound and gagged for the flight to Sofia in an aircraft of Balkan Air. In two international expert medical reports cause of death was determined to be suffocation as a consequence of the gagging. A disputed Austrian expert medical report speaks of the possible cause of death being a heart attack.

Reversing the roles of victim and perpetrator

The first days of the trial which is scheduled to continue till the 15th of April was characterised by denial of responsibility, reversing the roles of victim and perpetrator and cynicism. Whenever Marcus Omofuma was mentioned it was as a berserk, aggressive, screaming, resisting person making 'animal noises'. Thus the victim became the culprit, inflicting himself on the poor, unknowing victims who were only doing their duty. The accused Josef B. admitted to the court (18.03.02) that during the deportation he had called Marcus Omofuma a drug dealer in describing him to others so as not to have to explain the details of the asylum process - a justification for the mistreatment? The scenario produces a consistent picture - if Marcus Omofuma had gone quietly, if he had accepted his 'fate' and allowed himself to be deported, then nothing would have happened to him. Trial witnesses talked of their own feelings - it was not a nice sight, you couldn't look at Omofuma in the eye because he would have regarded it as provoking, they were not informed, in any case deportations were a difficult task. Despite this alien policemen volunteered for the duty. The special allowance for police duties in foreign countries was apparently a strong attraction. How far racism could have been a motive is not the subject of the trial any more than the question of human rights. The defence argument was that all those responsible knew of the practice of tape gagging though it was never spoken of officially. According to the accused any talk about it took place in 'a semi-private situation'. It was there the experiences were traded. In addition in the alien police duty room there was, for many years, a picture on the wall showing a 'taped' deportee in an aircraft. Acording to the testimony of one of the accused even one of the three ex-Home Secretaries (all from the SP - Austrian Socialist Party) who was to appear as a witness had seen the picture and not raised any objections. All three - Löschnak, Einem and Schlögl, deny this.

In his statement, Caspar Einem, Home Secretary from April 1995 till January 1997, said that had he seen the picture it would have meant he would have had to do something about it. He did not, however, remember any such picture. He stated further that in his opinion taping the mouth shut was not to be tolerated. He admitted that he knew of a case where a deportee's mouth had been taped, but he had not accepted this as the rule. It was possible that in his ministry certain information was withheld from him. Apparently there was internal resistance in the Home Office to Einem's 'humanist' understanding of politics (which was of little consequence practically).

Einem's predecessor, Franz Löschnak, Home Secretary from February 1989 till April 1995, was of the opinion that tape gagging was acceptable as an 'emergency measure'. He knew of the practice from 1991 or 1992 onwards.

Karl Schlögl, Home Secretary from the 28th January 1997 till 4th February 2000, Stated that he knew nothing about tape gagging. He could not imagine tape being used during deportations, a measure of that nature was an attack on human dignity. But it was only after the 1st of May 1999 that steps had been taken. After that, only specially trained officers had carried out deportations. He had prohibited tape gagging. In addition, after the death of Marcus Omofuma the previously planned Human Rights Advisory Committee had been established.

Gagging

In order to carry out the deportation the officers concerned had, at least up till the 1st of May 1999,a so-called 'set' consisting of a roll of sticking plaster, a roll of adhesive tape and Velcro fasteners. The question remains - who provided the 'set' carried, like a service pistol, at every deportation. Colleagues had had bought it privately because it was not an item in the budget. No-one thought of claiming reimbursement of the expense. Who provided the 'sets' can no longer be determined with any certainty - they were handed down from one deportation officer to the next. The idea of tape gagging deportees surfaced at the beginning of the 90s. According to the statements of the accused, the practice was never mentioned in official reports even though it was common practice amongst the deportation officers. Like with eating and drinking. It was not planned that black African deportees should eat and drink. They were generally regarded as dangerous and often got nothing t! o eat, as a Balkan Air stewardess testified.

Herbert K., the former head and later deputy head of the alien police, who had personally been involved in carry out a number of deportations stated that in some records there was mention of tape gagging in 'problem cases of deportation'. It was, however, always said to be an 'emergency measure to prevent bites'. In this connection it is also interesting that in his statement on the 13th of March Christian Z. said that he had mentioned gagging in a report which was later sent back to him for re-writing. There was a post-it note attached to it to the effect that he should remove all mention of the gagging. He did as requested so as not to draw negative comment - at this time he had only been in the alien police a short time. The statement made by Karl H., a former head of the alien police is interesting as far as the outcome of the trial is concerned. He was the only officer questioned who criticised the practice of gagging. He became aware of the problem for the first time in 1996 when a complaint was made to the UVS (Independent Administrative Tribunal). He passed on the complaint to his superior, Dr. Stortecky, and waited for things to take their course. Karl H. was hoping for light to be cast on the matter and for a clear decision from the UVS. Without that decision he could not forbid the tape gagging otherwise he would have been leaving the policemen who carried out the deportations in the lurch. There was, however, no reaction. He thought that his superiors did not want to impose a 'behavioural corset' detrimental to state interests. He himself did not want to take any action which his superiors might not wish for.

He thought it necessary to make the policemen aware of the tape gaging problem after Semira Adamu was suffocated with a cushion during a deportation in September 1998. He stated that in the autumn of 1998 he talked about the problem twice at an official meeting in front of the whole group. If the taping lasted for a long time someone could die. He also said that should a deportation only be possible with tape gagging it was advisable to break it off and to return to the prison. Officers should always check the reasonableness of their actions in the context. At the meetings some of the officers had been agitated when he gave them advice, and had more or less said, 'that's not right, nothing can happen to me'. No one agreed with the witness that it could be dangerous.

In any case it is interesting that neither the accused nor any of the other alien police appearing as witnesses could remember any official duty meetings at which the problem of tape gagging was mentioned. When questioned, Karl Schlögl at least admitted to having heard of the practice, but he could not confirm that such a meeting took place.

Independent Witnesses?

Up to this point in the trial the only people who have been questioned are those involved in the deportation machinery - policemen, former Home Secretaries and the crew of the airline carrying out the deportations. Up till now there have been no independent witnesses. Passengers on the flight in question were summonsed but the summonses for Bulgarian passengers were simply handed over to them and no effort was made to provide visas or flight tickets. The defence (Messrs. Rifaat and Ofner) have been vehemently outspoken in their opposition to issuing summonses to any of the passengers on the flight on which Marcus Omofuma suffocated. Their argument is that the case can be quite adequately re-constructed from the statements of the accused and the officers at Schwechat Airport who are regularly involved in deportations. In any case ( they argue) statements had been made during the investigation of the case. However, during the trial there were a number of occasions where it became clear that there were contradictions between what the accused had said in their first statements and what they stated in court.

The Right Lawyer

Three days before the trial was to begin it was announced that former Justice Minister and present FP [Freedom Party] spokesman on justice Harald Ofner was taking over the defence of one of the accused alien policemen. It was an effective media coup. On top of that, it makes for an interesting constellation, something which has drawn little comment up till now - Harald Ofner (former Justice Minister and present FP spokesman on justice) whose party comrade is Dietmar Böhmdorfer (Advocate and FP Minister of Justice) and Public Prosecutor [District Attorney] Demler who is legally bound to report to the Minister of Justice and must follow his directives. In his opening statement Ofner portrayed the facts in such a way that Marcus Omofuma became the aggressor and the policemen carrying out the deportation the fearful victims. In addition, it was not too ridiculous for him to try and create doubt as to Marcus Omofuma?s identity. On top of that he used the trial to assert that t! he state would be unable to act if it was not allowed to use the necessary measures during a deportation. His emotional performance seemed specifically designed to impress the lay judges who, together with the judge, will decide the guilt or innocence of the alien policemen.

Deportation as a Daily Business

It became clear through the questioning the crew of the Balkan Air flight that deportations were regarded as part of normal business. If criticism was voiced at all it was only in connection with how the other passengers and the crew felt about it. The airlines have to be attacked at the point which hurts most - the finances. Tape gagging and tying up were part of the routine in Austria, at least up until May 1999. This was the case despite the fact that there was a binding decision of the UVS from 1996 which specifically prohibited the taping of the respiratory tract. The question today is what are the procedures now? What measures are used, especially in connection with the so-called problem deportations? These are carried out in Austria by an IFRA (International Air Rescue Service) charter flight. Here there are no witnesses from the so-called Human Rights Advisory Committee involved, a committee which was brought into being for the purpose of correcting 'shortcomings' or 'disruptions' during deportations.
The only thing that is checked is whether the deportation was carried out in conformity with 'human rights', the practice itself is never questioned. Despite the trivialisation which occurs by involving the 'Human Rights Advisory Committee', it must be stated that deportation under duress can never be regarded as conforming to human rights but always represents a definite breach of them. In order to remove a person from a country personal freedom is curtailed, they are seriously threatened, tortured and even killed. From the point of view of human rights, preventative custody and deportation are untenable. In the trial which is concerned, among other things, with clarifying the cause of death of Marcus Omofuma, it becomes clear why the gag was not removed in time. The accused officers knew the contents of the negative decision with regard to the asylum application and it must have been clear to them why Marcus Omofuma tried to defend himself. His resistance can thus be regarded as part of a general struggle for survival. From this and the accounts of those involved in the deportation - the accused as well as the airport police and flight crew - it becomes clear that the tape gagging was deliberately carried out and was certainly not an isolated instance. In any case the further course of the trial will show how far the exclusion and deportation policies of the state will be justified and which measures are to be regarded as acceptable. A verdict of not guilty for the three aliens police would not only mean that death during deportation was justified and acceptable. The trial will also show which executive practices are acceptable to the majority of people.

Schedule of trial:

08/04/02, 9:15: Examination of two witnesses from the Netherlands.
10/04/02, 9:15: Examination of the first medical expert witness.
11/04/02, 9:15: Examination of the second medical expert witness.
15/04/02, 9:15: Examination of the third medical expert witness and reading of judgement(planned).

Location: The trial takes place in the Schwurgerichtssaal (jury courtroom) of the Landesgericht Korneuburg (District Court) (Hauptplatz 1). Korneuburg is about 15km north of Vienna on the A22. By train it can be reached with the S3 which leaves every half hour.

The trial is open to the public and there are places free. Accompanying the trial there will be demonstrations against the practice of deportation.