[ 29. May 2008 ]

Background Knowledge to §278a of the Austrian Penal Code

Being there is everything - background knowledge to Section 278a StGB - Information from the Legal Support, 28. May 2008.


On May 21, 2008 twenty-three (23) apartments, houses, and offices of animal rights activists in Vienna, Lower Austria, Styria, and Tirol were stormed and searched by Special Forces of the police and arrest warrants were executed against 10 of the people targeted by the searches. The basis of this massive wave of repression against leftist activists was quickly determined to be the accusation of "Forming a Criminal Organization" according to §278a of the Austria penal code (StGB).

This paragraph of the penal code was originally introduced in 1993 to fight organized crime along with §165 against money laundering by making the mere membership of a criminal organization a crime, regardless of whether or not this criminal organization or its members had already committed any actual crimes. This is known as a so-called "Preparatory Crime." Thus the element of the crime includes any activity done in relation to the organization regardless of whether or not the action in and of itself is a crime.
Many conditions must exist simultaneously in order to fulfil the elements of the crime of a Criminal Organization. And now we will delve into further explanations of specific characteristics of the elements of the crime.

The criminal organization has to be designed to exist for a longer period of time, that is, indefinitely or at least for several weeks. The case law says concretely about three months. Furthermore the union has to be constructed "similarly to a company." What that means can be summarized as the existence of division of labour (for example into planning and implementation), hierarchical structure (that some have the authority to give directives and that others have to follow directives) and a specific existing infrastructure (for example organizational capabilities). Another required characteristic of a criminal organization is a large number of people - the law has developed a standard of 10 persons. What a coincidence that exactly 10 randomly tossed together animal rights activists are sitting in jail right now. A criminal organization needs an objective as well, of course. The possibilities are listed in points 1 through 3. In each case there must also coexist an alternative from every single one of the numbers in order to fulfil the elements of the crime. (More concretely stated: under each point, 1-3, there are at least two possible characteristics, one of which must be present from point.)

The legislation had clear conceptions in mind when they added the offense of "Forming/Being a Member of a Criminal Organization," as to which areas of organized crime should be penalized, which is why drug dealing, human trafficking and dealing in arms are deliberately mentioned in the paragraph regarding point 1 of §278a of the penal code.
Legally protected interests include the body, life, health or property - the criminal organization must have as a goal to commit repeated and planned serious acts against these legal interests.
Point 2 deals with the attempt of the criminal organization to achieve massive financial gain (> 50,000 €) or have a large influence on politics or the economy - this sought after influence must be formidable, which means that fundamental decisions from the responsible persons in politics or the economy must be massively influenced by it. The influence on individual companies is not enough - the sought after influence is directed at the economy and politics as a whole.

The act of "shielding against prosecution" or the alternative of bribing or intimidating others are the elements of the crime which fall under point 3. Models and precedents developed what is to be understood by the concept "shielding against prosecution." It has to be means which the criminal organization resorts to in order to protect itself against prosecution from the authorities and go beyond the common security measures taken in the implementation of criminal plans, such as the establishment of fake companies for the purpose of masking crimes, the frequent change of pre-paid cell phones, the use of codes in internet communication, the renting of conspirative apartments or other strategies, which are meant to make prosecution more difficult or impossible.
There are however other dissenting schools of thought, which do not view the frequent change of pre-paid cell phones and the use of code words as a noteworthy means of shielding against prosecution.
The aforementioned properties of a Criminal Organization acc. to §278a of the penal code are only valid if such an organization has been founded or somebody is taking part in it as a member. As another characteristic trait, the crime needs intent as regards all the attributes of a Criminal Organization.

All of this does not exactly sound new, but rather very familiar. Everybody who knows about §129a of the German penal code - Forming a Terrorist Association - knows the constructed allegations used in the context of criminalization of leftist structures - independent from animal rights, antifascist actions or anti-G8 mobilization - which apparently only serve the purpose of giving the state a better insight in radical left groups and their work via the concept of the "Terrorist Association". In Germany, only 1% (!!) of the suits filed according to §129a lead to convictions.

Besides §278a, the Austrian penal code also contains the felony of "Criminal Association" according to §278, which differs - apart from the lower possible sentence (three instead of five years of imprisonment) - from the Criminal Organization only by a lower grade of organization and the smaller amount of people involved (three people can form a Criminal Association, whereas at least ten are needed for an Organization). The attempt by the state to portray political activists as a Criminal Organization, to launch investigations against them using massive surveillance programs and to jail them because of arbitrary fantasies made up by the prosecutors and anti-terrorism task force (The Federal Office for Protecting the Constitution or Verfassungsschutz), is an absolutely new development in the history of the Austrian Left and the Austrian justice system. Never before has there been a wave of repression in this dimension against leftist activists, which climaxed in 10 arrests during 23 raids on May 21. This has to be seen as an attempt to intimidate, publicly discredit and criminalize practical resistance from the Left.

Studying the arrest and search warrants the same passages found in the text of the law are used, the alleged crimes were just added - vaguely described, without any apparent reason justifying the suspicion that they had committed the crimes, without concrete allegations. Furthermore, there is reason to believe massive phone, computer and other surveillance was employed; it is not possible to estimate the real scope of this intelligence program thus far. Since the last change to the "Sicherheitspolizeigesetz" (the law that defines the legal possibilities to be employed by police and other law enforcement agencies) which is in place since January 1, 2008, the police gained the power to use wiretapping with IMSI-catchers and other phone surveillance (connection data, localization, ..) without prior approval by a judge. It is highly probable that these new possibilities are widely used for ubiquitous surveillance by phone, as only a fax from the police to the provider is necessary.

As already mentioned, Forming a Criminal Organization is a "Crime of Preparation", which means that founding or being a part of such an organization is already a felony, even if the individual members have not already committed concrete crimes.

The preparation and forming of a Criminal Organization - if the state succeeds in proving that such an organization exists - is already illegal. Why the prosecution continued to investigate without taking action for years is one of the big questions that everybody is asking themselves right now. Apparently neither supposed evidence nor indications exist against the accused, and therefore such drastic methods had to be employed.

We demand the immediate release of all the accused, the end of all legal proceedings regarding the criminal organization as well as other potential trials and the deletion of all the collected data!

Political Activity is not a crime!
Your repression will never bring is down - we are all §278a!
antirep2008 (at)

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