07 December 2023

The Pilnacek case – A challenge also for the European rule of law

With the “Pilnacek” case, the debate on corruption in Austria – ongoing since the “Ibiza affair” (May 2019) but largely inconclusive so far – is heading for a new high point. The affair showcases massive political influence on the Austrian criminal justice system and proves that it is challenging to bring the problem of corruption under control. One of the main reasons is that Austria has not made the necessary adjustments to the European “acquis communautaire” since its (relatively late) accession to the EU and keeps ignoring fundamental principles of EU law. Since 2000, there have even been setbacks. The case of Christian Pilnacek illustrates the problem of corruption in Austria in an exemplary manner. Likewise, it underlines the continuing backlog of reforms in Austria and the country’s unwillingness to adjust to the European rule of law.

Who was Christian Pilnacek (1962-2023)?

Christian Pilnacek was regarded as an eminent Austrian lawyer with an exemplary career: formerly a judge in Vienna, his meteoric rise started almost simultaneously with the “conservative turnaround” in Austria. In 2001, Pilnacek became chief public prosecutor and one of the highest officials in the Ministry of Justice in Vienna. In this role, he initiated and led the reform process of the new Code of Criminal Procedure. The latter came into force in 2008 and was hailed as the “reform of the century.” Yet, the reform turned out to be highly problematic, mainly because it allowed politicians to exert extensive influence on the criminal justice system (see below).

In 2010, Pilnacek’s career reached a climax: He was appointed head of the section “Legislation” and the section “Individual Criminal Cases.” In this position, he was able to considerably control the general development of criminal justice and to influence individual case decisions. He retained this extraordinary position of power for many years, thereby presiding over the local public prosecutors’ offices, the four senior public prosecutors’ offices and the “Wirtschafts- und Korruptionsstaatsanwaltschaft” (the prosecutor for economic and corruption offences – WKStA).

However, from 2019 onwards, Pilnacek attracted increasing criticism, with the “Eurofighter” affair constituting the starting point. In the latter, Pilnacek had campaigned for dropping all criminal investigations. Subsequently, the accusations against him piled up. Pilnacek’s influence was reduced, and later, he was suspended from office. Criminal investigations against him were started, and some were dropped afterwards. He was found dead on October 20, 2023.

On November 21, secret tape recordings were made public. In these recordings, Pilnacek reported massive pressure from politicians who had asked him to influence criminal proceedings.

The 2008 criminal law amendment as a significant step towards (further) strengthening political influence on the Austrian criminal justice system

The Austrian public prosecutor’s office is highly dependent on political decisions – a fact that has long been criticised both nationally and internationally. Worryingly, the 2008 “reform of the century” further extended the existing dependency in an alarming way. It is a tragic irony of fate that Pilnacek, the main proponent of this reform, subsequently became a victim of this reform (at least according to his own accord).

The “reform of the century” – presented by the government as a decisive step towards ensuring the independence of the public prosecutor’s office – proved to be quite ambivalent. In central points, it even had the opposite effect of what it had been praised for.

The abolition of the function of the “investigating judge” was the centrepiece of the reform. Notably, the “investigating judge” had acted as a preliminary investigating judge and, as a completely independent judicial body, had a decisive influence on the initiation of criminal investigations. With the reform of 2008, this set of tasks was transferred to the public prosecutor’s office. Officially, the reform was meant to reduce the number of political directives. However, the situation even got worse as the reform subjected the public prosecutor’s office to the influence of the Ministry of Justice (and thus to politics) in a chain of command. Public prosecutors henceforth fulfilled the functions of investigators, prosecutors and (investigative) judges (Walach) and were bound by instructions from the Minister of Justice.

Overall, the improvements (if there were any) brought about by the reform were purely “cosmetic measures” and did not make the public prosecutor’s office independent from politics:

“There is a duty to report, instructions are still given at every level. Below the level of formal instructions, there are discussions between the hierarchical levels. These often have the character of instructions”. 1)

“As regards the victims, it is almost impossible to force the public prosecutor’s office to open investigations against their will. An application for continuation pursuant to Section 195 (2) of the Code of Criminal Procedure is very rarely successful since judicial review is limited to checking for arbitrariness. Further, the application must have the structure of an appeal for annulment”.2)

It is true that under Justice Minister Wolfgang Brandstetter (who was later faced with investigations himself and resigned as a constitutional judge in 2021), an “Instruction Council” (“Weisungsrat”) was set up to objectify the influence politics exerts on the criminal justice system. However, on closer inspection, this regulation seems bizarre. For example, the Council is authorised to advise the Minister of Justice if the Federal Minister deems it necessary “when there is extraordinary public interest in the criminal case, in particular in the event of repeated and supra-regional media coverage or repeated public criticism of the actions taken by the public prosecutor’s office and the criminal investigation department, or for reasons of bias.” Making a control function dependent on media coverage is quite problematic. Further concentrating on “nation-wide” reporting (reporting in regional media would not be sufficient for a referral to the “Instruction Council,” even if, for example, a regional daily newspaper had a higher circulation than a national newspaper) raises the question of logical coherence. Considering that, in many cases, victims may not call upon the “Instruction Council” if the public prosecutor’s office refrains from investigating a case, it becomes evident that victim protection is not sufficiently taken into account.

Pilnacek as a victim of political intervention – or of his own reform?

Pilnacek’s tape recordings show that the former head of section of the Ministry of Justice had become quite desperate. As it seems, Pilnacek was pressured massively to intervene in favour of one party (the ÖVP) in various criminal proceedings. Pilnacek claims to have resisted the pressure, even though it clearly affected him. It is difficult to assess whether these events actually took place in exactly the manner Pilnacek describes them. Yet, after the release of the tape recordings, commentators considered it plausible that there was indeed pressure and intervention from political actors. In addition, the repeated interventions suggest that at least some efforts must have been crowned with success. If they hadn’t, the responsible political actors would presumably have stopped their attempts to exert influence on decisions concerning criminal proceedings.

As indicated above, the 2008 reform of criminal procedure gave the head of section in the Ministry of Justice an enormous amount of power in his dual function (most notably, however, as head of section for individual criminal cases). At the same time, this gain in power made him a potential target for political intervention. This worrying state of affairs could become all the more serious, given that there are no control mechanisms in place. Once the door to a deliberate “do ut des” between the judiciary and politics stands open, various interventions are conceivable (and likely): not only (negative) pressure combined with the threat of sanctions but also “positive incentives” for “good behaviour” – perhaps simply by giving “guarantees” for “hard times.” Even without any concrete signs of political influence, it is clear that such a system offers the possibility of exerting massive political influence on the judiciary.  At least now, with the benefit of hindsight, Pilnacek’s complaints about massive interventions should lead to swift action. First and foremost, essential elements of the 2008 reform need to be withdrawn – a reform whose main author was Pilnacek himself.

Necessary reform steps – strengthening the rule of law and victim protection

The events in the Pilnacek case demonstrate that a separation of the judiciary from politics and the creation of a self-governing judicial body – demands made by Dr. Irmgard Griss and other Austrian lawyers for years – are an absolute necessity.

In addition to the existing dependence of the judiciary on politics, it is worrying that Section 35c of thePublic Prosecutor’s Act (Staatsanwaltschaftsgesetz – StAG) makes it possible to stop investigations if there is “no initial suspicion.” Said provision is compatible neither with national law nor with European rule of law principles. This is because Articles 6, 8 and 13 of the ECHR grant victims of criminal acts a right to (criminal) prosecution.

Worryingly, the inadequate protection of victims in the Austrian judicial system also impacts civil law proceedings: Let’s assume the public prosecutor’s office refuses to investigate an untruthful witness statement in civil law proceedings on the basis of Section 35c StAG – despite the existence of solid evidence of the statement’s untruthfulness. In this case, the judgment may be based on a criminal offence (a false witness statement). Nevertheless, the victim has no possibility of taking action against the inactivity of the public prosecutor’s office. Moreover, there is no possibility to demand the reopening of the civil proceedings. In other words, the victim of a false witness testimony has no effective way of taking action against it. Lodging a complaint with the Individual Criminal Matters Division in the Ministry of Justice could theoretically be a feasible option. However, if the Ministry states that there are “no concerns” regarding the inactivity of the public prosecutor’s office, making an appeal to the Ombudsman’s office will hardly bring about fruitful results. In fact, this office has no effective power for judicial intervention. What is more, the heads of office are themselves nominated by politicians.

All of this leads to the conclusion that the public prosecutor’s office is in urgent need of reform.

The European dimension

It has already been shown that the disregard for victims’ rights has a European dimension. However, the Pilnacek affair only gives a glimpse into a broader spectrum of reforms needed in the Austrian justice system. Crucially, the need for reform has a broader European dimension.

On the one hand, the abolition of official secrecy requirements and the establishment of an independent federal public prosecutor’s office are essential. They can and should no longer be delayed, precisely since there are demands to do so at the supranational and the international level.3)

On the other hand, Section 35c StAG, which clearly contradicts EU law (in particular Art. 2 TEU, Art. 19 TEU and Art. 47 CFR) and the ECHR – precisely because it neglects victims’ rights and hinders access to court – should be repealed as soon as possible. Reintroducing the investigating judge could be a provisional remedy – at least until there is a fundamental reform of the Code of Criminal Procedure.

In addition, numerous other long-standing reform proposals need to be implemented. For example, the recruitment process for judges and public prosecutors must be redesigned. The following should be taken into account: Compared to other European countries, Austria is relatively small. In addition, the recruitment of judges falls under Art. 45 para. 3 TFEU, meaning that the provision on the free movement of workers does not apply. As a result, the pool of applicants is relatively small. Therefore, examination commissions should strive to consider applications from candidates that come from a broader range of legal professions (lawyers, professors) – and from abroad. One remaining problem, however, lies in the fact that there is currently no access to a court in case the examination commission violates the law (e.g., evident bias, procedural violations). Although, in this case, there is no possibility to demand access to a court under EU law via the free movement of workers provision (as the exception according to Art. 45 para. 3 TFEU applies), such a right can be invoked by recurring to European rule of law principles, which must equally apply in the sovereign sphere.

Efforts should also be made to redesign the state liability procedure, which was established via ECJ case law (Köbler), and to bring it in line with EU law. This way, particularly blatant cases of judicial failure could be combated effectively – at least if they also constitute a breach of EU law.

In addition, there needs to be compliance with the obligation of the highest courts to make a reference to the ECJ, especially in accordance with the judgment in the Consorzio Italian Management case.4)

In particular, unjustified rejections of requests for referral to the ECJ, according to Art. 267 para. 3 TFEU (or more extreme cases of courts simply ignoring such requests) are against EU law and should lead to corresponding sanctions.

In Austria, the problem of “side letter appointments” – including for the highest judicial offices – further remains unresolved. Said appointments are clearly contrary to the ECHR5) and must hence be revoked.

Furthermore, the plight of victims left without protection should not be ignored and forgotten. Many past victims are still alive – and they suffer from the consequences of harm inflicted on them. Setting up a commission of inquiry to re-examine the most blatant cases of omitted investigations in accordance with Section 35c StAG might constitute a possible remedy – possibly on the basis of a preliminary screening, whereby extreme cases would be subject to an in-depth investigation.

Another aspect that has often been overlooked is the following: Why have the European institutions hardly ever criticised these highly problematic developments?6) One reason lies in the dysfunctional state of the ECtHR system. With less than 5% of cases being declared admissible, individual applicants barely have a realistic chance of having the ECtHR examine the substance of their case. At the same time, the national courts of last instance no longer face any serious “risk of review” by the ECtHR.7) While it would be wrong to withdraw from the ECHR, just as the UK considers doing, a fundamental reform of the Strasbourg system is