The trial of the three aliens police officers at the District Court of Korneuburg, near Vienna, commenced on the 4th of March 2002. The officers were accused of "Cruelty to a prisoner resulting in the prisoner’s death". The main issue of the trial was the question why the adhesive taping was not removed in time. The first - and probably the last - independent witnesses were heard on the 8th of April. The witnesses who came especially from Holland had been passengers on the flight on which Marcus Omofuma suffocated. Their descriptions were so clearly articulated that they made the legal accusation itself sound a mere apology. In order to establish a relationship between their statements and the charge, the court tried to make these witnesses appear unreliable and unbelievable.

Interrogating the first witness, the judge started by stating that he only wanted to put questions supplementing the interrogations of June 1999. He was solely interested in knowing how Marcus Omofume had been placed in his seat and held there. He was not interested in which manner Omofumo had been brought to the aircraft. In the course of the trial he also interrupted the witnesses when they, of their own accord, dealt with other circumstances of the event.
The evidence given by one passenger was that the bound man with several layers of tape around him, evidently had difficulties in catching sufficient air to breathe because both his head and neck had been nearly completely bound up with adhesive tape. The judge ruled that this statement was a subjective impression - a matter to be cleared up by the experts.

Struggle against death

The witnesses summoned on the 8th of April were all accompanying adults and parents of a group of children from Holland on a trip to Bulgaria, which they had been preparing for 3 years in advance. In all previous descriptions of the events in the course of the trial, these children were mentioned to justify the treatment of Marcus Omofuma because - according to the accused - his behaviour and his cries would have caused fear and panic, had the adhesive tape been taken off him.

However, all passengers agreed that Marcus Omofuma presented no danger whatsoever. They described his resistance as a struggle against death and resistance against the inhuman treatment he was enduring. The passengers were more afraid of the officers guarding the prisoner than of Omofuma, and felt that Omofuma was in danger. He never had a chance to move. One witness mentioned that she had assumed the person bound and wrapped up with adhesive tape to be a criminal - but then, not even a criminal should be treated like that.

One witness said: "At some point you felt you had to stand up and do something." The passengers had spoken to the crew and to the police guards several times during the flight, confronting them with the treatment meted out to Marcus Omofuma. These people [the police and crew] considered this as a "problematic deportation" and - according to their own statements on previous days of the trial - binding and gagging prisoners was customary practice on such occasions. The answers therefore were no surprise: "We [the aliens police officers] are only obeying orders." Or "We [the crew] can't do anything." In any case, the crew were very taut and repeatedly instructed passengers to keep to their seats.
All the witnesses testified with the distinct answer "No" when asked whether they had seen any injuries on the officers. This can be considered very important because one of the accused stated that Marcus Omofuma had bitten him and that the bite injury had been visible even a year later. The principal justification for gagging (use of adhesives) is self-defense against bites by deportees

Tied down tightly "like a bit of luggage"

Two witnesses were sitting quite near to Marcus Omofuma and his police escorts. They described in great detail the prisoner's maltreatment by the police officers as something they could not have imagined possible. The officers - now the accused in court - grew visibly more nervous in the course of these statements by the witnesses.

Every time when Omofuma had made any kind of resistance or only made himself noticeable, so these witnesses stated, he was taped or held still more firmly to the seat. For this purpose the officers used brown adhesive tape, the kind used to close cardboard boxes at removals, and also a velcro fastener. The accused denied this latter. They had only bound the man, they said, to his seat using adhesive tape and - only for a short time - an fastened him to his seat with an elastic belt. The accused, Josef B., was seated next to the prisoner and had always paid attention that his breathing was all right.

Passengers found that Marcus Omofuma's moans were the logical result of his lack of breath. One passenger from Bulgaria had even warned the officers to take care that their charge [prisoner] did not suffocate.

One witness stated that afterwards - she had read in various papers after arriving in Bulgaria that Omofuma had suffocated - she felt she shared the guilt.

One of the witnesses, a psychologist, was asked by defense councel Ofner why, if he considered Marcus Omofuma to be a person in danger, he had not intervened in his capacity as a medical doctor. The witness replied that he had not considered the situation as life threatening - in such cases the usual procedure on flights was the question whether there was a doctor on board. However, a doctor was only called in when in Bulgaria it was found out that Marcus Omofuma was no longer breathing. That doctor was only able to certify the Omofuma's death.

Strategies of the Defense

The aim of Rifaat's and Ofner's arguments seemed mainly to make the Dutch witnesses appear implausible. That this strategy of the defending lawyers wasn’t completely successful showed when, in the face of the clear evidence given by the witnesses, they even quarrelled in court. Rifaat once disparaged the work of politicians causing the judge to make a remark in the direction of Ofner, politician and legal spokesman of the FPÖ. Rifaat was even foolish enough to comment on the evidence regarding Omofuma’s moans that there could be moaning that was not due to lack of breath or pain.

Rifaat, who was fairly helpless when faced with the evidence of the witnesses, presented videotape said to contradict the evidence given by one witness. He presented the tape shortly before the lunchtime break. The tape was said to be a recording made by the ORF in May 1999. In this tape a witness stated that a passenger - a member of the Balkan Air staff off duty - had beaten Marcus Omofuma twice or thrice. In a statement a few days later the witness said there had been only one blow. She upheld the latter statement on the 8th of April, i.e. nearly three years later.
After the video had been shown, Ofner happily said that the video showed the implausibility of the witness. In spite of a motion proposed by attorney Lansky, representing the Omofuma family, that the video be played in full, the judge remained satisfied with the short excerpt of the video as shown. The video was turned on very shortly before the statement by the witness and turned off immediately afterwards. The witness affirmed her evidence and explained that her statement in the interview was a first unreflected reaction to shocking experiences - after all a man had lost his life - and should be taken as such.

Defense council Rifaat followed up on this and stated that he had been informed that the witnesses had had a meeting with a Viennese lawyer after their arrival in Vienna the day before. He proposed "Obtaining the report by the police authorities" who had accompanied and observed (!) the witnesses after their arrival in Vienna. Rifaat wanted this as "proof" that the said witness had taken counsel before rendering her evidence today.

Asked whether there had been any such meeting, the witness replied that she had not spoken to any Austrian lawyer or any person representing a lawyer.

After dismissing this witness the judge announced that attorney Zanger had called him on the telephone during the lunch break to inform him that attorney Lansky had no valid power of attorney from Omofuma’s family. Attorney Zanger had filed a complaint against attorney Lansky with the chamber of lawyers because Lansky had reproached him for representing the accused instead of his [Zanger’s] clients. Furthermore, attorney Zanger was of the view that the trial was being made a political issue by Lansky's representation. The judge did not allow Lansky to reply.

Here, it must be mentioned that the participation of Ofner as council for the defense can be considered as making the trial a political issue. Ofner used the opportunity as defense lawyer in the court proceeding to state his most certainly political point of view, namely, that the Government would be incapacitated if deportations could not be carried out using adequate means. His emotional speeches and interjections were probably aimed at the jurors who were to join in with the judge in delivering a verdict.

Three of the witnesses were summoned in their capacities as former Ministers for Interior Affairs (all three of the Socialist Party of Austria) - further evidence that this trial was political.

The three remaining days of the trial will see the interrogation of three medical experts in order to gain legal clarity on the cause of Murcus Omofuma's death. Two of the three autopsy reports on the cause of death concluded that Omofuma’s death was "death by suffocation". The Expert from Bulgaria who was the first to examine the body of Marcus Omofuma will not be present on account of his health. Intorregation of the Green's Member of Parliament Theresia Stoisits is planned for the 15th of April. Stoisitz is author of a question to the parliament as early as 1993 raising the problem of using adhesive tape to seal the mouth of deportees. If there are no further proposals for further evidence or for calling further witnesses, the court will pass its verdicts on the 15th of April 2002.