Starting at 9:15

Those present:
Judge Fiala, Deputy Judge, 2 jurors, 3 replacement jurors, public prosecutor, attorney Zanger and his junior, attorney Rifaat, attorney Ofner, the defendants B., R. and K.

The file from the Ministry of the Interior requested by the judge concerning the question tabled in parliament by Terezija Stoisits in 1993 was submitted to the court on 12/03/02.

1st Witness: Siegfried K. (security officer)

He claims to have spoken the truth when being examined on 4/5/1999 at Schwechat (Airport CID), on 5/5/1999 in the Security Police Office at Vienna, and on 10/5/1999 to the investigating magistrate at Korneuburg, but can no longer remember his first examination at the Airport.

He states that the first time he saw Marcus Omofuma was in the bus at the airport gate. His squad, "Kranich", had - as was always the case during deportations - been asked to stand by, and he himself was standing next to the van, the door of which was open.

Marcus Omofuma, he claims, started to bang his head against the window, clearly in order to injure himself and thus to avoid deportation. According to him, the gentlemen, whom he hardly knows by now, as it was a long time ago (he points at the defendants) attempted to subdue Marcus Omofuma, although he didn't really see this very clearly.

Very soon his recollections are exhausted, and the judge asks him whether he would prefer specific questions - although it would certainly be better if the witness were able to provide his own account of the course of events. The witness replies: I'm not a storyteller, and: after all, it was three years ago, so one cannot really remember all that clearly.

The judge asks for details regarding the attempts to subdue Marcus Omofuma. The witness states that he tried to keep hold of Marcus Omofuma's foot, since the latter was kicking about, as usually happened with deportations, the witness suffering an injury in the process.

According to the witness, Marcus Omofuma's hands and feet were fettered with adhesive tape, to prevent him from injuring the officers. The witness can neither recall anybody being bitten nor that anybody was bleeding. He also adds, unprompted, that there were precedents of an officer being bitten, but is not aware of any specific case.

Because Marcus Omofuma was screaming, his mouth was "covered up a bit", or perhaps "sealed with tape" after all, as he volunteers after the judge's query for particulars of how a mouth could be covered up.

However, he couldn't see this very well, as the cramped VW van contained 6 persons.

The judge points out that the witness had stated, on 5/5/1999, that he saw colleagues attempt to seal the mouth with pink sticking-plaster, which Marcus Omofuma then bit through, whereupon his mouth was sealed with brown plastic adhesive tape; his nose, however, had certainly been clear. He confirms this and the judge asks how and where the adhesive tape had been applied. The witness gives a very short laugh and then says: over and around the mouth. If nose and mouth are sealed, it's impossible to breathe, after all. This was definitely done to prevent Marcus Omofuma from shouting and biting. He is unable to provide any detailed information on this case, as it was nothing out of the ordinary: It was quite a normal case.

A Balkan Air official who asked for the van to leave probably did not look into the van in order to see Marcus Omofuma covered with adhesive tape. The witness and one of his colleagues then carried Marcus Omofuma onto the plane, seated him in the last row but one and fastened him to the seat with a tape, so he wouldn't be able to move forwards (to illustrate this, the witness briefly bobs forward with the upper part of his body). What tape was used and precisely how it was done, the witness cannot recall. At any rate, Omofuma’s arms too were secured with tape to prevent him from injuring his head. The upper part of his body was secured to the seat with brown adhesive tape, not with a rubber rope, canvas webbing or belt.

The judge goes on to ask whether Omofuma offered any resistance when he was put in his seat. The reply, after brief thought, is that that wasn't the right way to put it, perhaps he moved, but he didn't create an uproar. On the whole, the witness doesn't think that Omofuma, prior to being taped up and tied to his seat, had hammered against the seat in front of him. Marcus Omofuma was taken onto the plane through the door at the front, as the rear door was locked, according to the witness. Thus they had to traverse the entire plane. At times persons had been carried up via the rear stairs. He had no further conversation with the crew, he says. In response to the judge pointing out that during a previous examination he had stated that Marcus Omofuma had been able to breathe freely and that there had been no problems with his health, everything had been quite normal, the witness argues that as far as he was concerned this had been a normal deportation. Again, sealing the deportee's mouth had been quite a normal thing to do, only afterwards (after Marcus Omofuma's death) had this become public knowledge, prior to this there had been no directives.

During his 5 years on the job, he witnessed 2 or 3 occasions when a deportee's mouth was sealed with tape. The only stipulation was that the deportations had to be carried out without, however, causing injury to anybody, either police officers or deportees. He compares deportations to a roofer's job and says: We have to do it. At the time it was like that: That person is to be deported, and so he was deported.

Asked by the judge whether he had asked his superiors what to do in the event of problem deportations involving scratching, biting and spitting, the witness replies that they "probably knew anyway what's going on".

Now it is attorney Zanger's turn to put his questions. The witness states that Marcus Omofuma had created an uproar in the van, but had calmed down after having been taped up and behaved less conspicuously. He says that he had, on occasion, seen deportees being carried onto the plane, but that he himself had not done it at other times.

The witness is now questioned regarding his colleague G. who, according to his previous statements, went by himself to the Balkan Air building to have the boarding cards checked, came back by himself and observed the incidents in the van.

The witness claims to have spoken the truth at the time. The Balkan Air station manager, according to him, did not show up until later, saying that the van should drive off. In response to attorney Zanger's questions, the witness claims that during the affray in the van he sustained injuries to his feet; he couldn't be sure at this point where Marcus Omofuma's head had been and what the sticking-plaster had looked like. He couldn't tell whether any attempt had been made to bite his colleagues, as he was standing outside the van.

Attorney Rifaat then asks whether the witness was reporting to Lt. Col. R; the witness answers in the negative. Nor does he know, he states, whether Lt. Col. R. is aware of how deportations proceeded. He himself, in the 5 years he worked at the airport, on 2 or 3 occasions had observed deportees who had been taped up.

During coffee breaks, he says, there had been frequent discussions concerning the extremely unpleasant job involving deportation. Attorney Rifaat's question: "How many incidences of deportees being taped had you heard of - 20, 30 times?" results in an altercation with attorney Zanger who objects to this formulation; the judge issues Dr. Zanger with his 1st warning for interrupting and points out to him that he will be excluded from the trial after the third warning.

The witness states that he finished school in 1993, had been doing duty first in Graz, then at Schwechat, and that at Schwechat over a period of 4.5 years he had heard of more than 10 cases of deportees being taped up. Normally, he says, deportation detainees were always accompanied by 2 or more officers. He claims never to have heard of any cases where detainees' health suffered as a result of them being taped up.

Attorney Ofner opens his statement with the remark that he does not intend to ask the witness anything he (the witness) had stated during the examinations in 1999, but even so asks again whether these were correct. The answer is yes. Ofner then lists all the hazards that are meant to be avoided by taping up. Given some uncertainty about a person's health and what that person "might do to you", suitable precautions had to be taken. Again he mentions the previously discussed "risks" such as biting and shouting.

The witness states that taping up had been designed to prevent biting, shouting and spitting. Ofner on spitting: "OK, that's good enough for me, that's not something to be sneezed at...". Asked how many officers were present to "control" Marcus Omofuma, S. states that it took 5 people to control Marcus Omofuma, who had offered enormous resistance in the van. In response to Ofner's question whether the superiors had assumed that the subordinates would know what to do, and whether there had been any further instructions in addition to the directive of getting someone out of the country, the witness replies that he doesn't know. Nor does he know whether the Station Manager spoke to the detectives from Vienna or Schwechat; the only thing he said to him was that the van should be driven away from the gate and the door be cleared.

Attorney Zanger demands that his appeal against the warning be recorded. The judge informs him that there is no right of appeal. Nevertheless, Dr. Zanger insists on appealing.

Finally Dr. Zanger asks the witness whether Marcus Omofuma, when the 5 officers attempted to control him, had strongly resisted and made a major effort, the witness answering in the affirmative.

2nd witness: Christian Z. (police officer)

The witness states that he spoke the truth when examined on 31/ 5/1999.

He has been with the Aliens Police since 1992, he says. Detainees' mouths had been sealed with tape in exceptional cases to prevent bite injuries, he too had done this on several occasions. The sticking-plaster was not part of the official equipment, his colleagues had themselves purchased it and paid for it. He himself had been bitten once in the course of an arrest, he says, and then had to undergo regular AIDS tests in the AKH (General Hospital).

Early on in his job (1993, 1994 or 1995), according to him, he had mentioned in a deportation report that a deportee had been taped up in self-defence, whereupon the report was returned to him with a small sticker attached. The sticker said that he was to rewrite the report, but without mentioning the tape. The witness cannot recall at this point whether the sticker had been signed. At any rate he wrote a new report. He hadn't seen anything wrong in that, the matter was over and done with, after all, and the deportee was in Africa; there wouldn't be any problems, regardless of whether or not the taping-up was mentioned in writing. Nobody would ask any questions.

Besides, he had still been young and a newcomer in his department and didn't wish to draw undue attention. The little yellow sticker had been regarded by him as a request, not as an instruction. Deportation reports always went to the senior officer, the Central Department and the appropriate official

Never had he heard anything about discussions with superiors on how to deal with obstructionist deportees, nor about a staff meeting during which his superior H. claims to have said that sealing a deportee's mouth was inadvisable. Any discussions took place only among intimates, he had assumed that sealing a deportee's mouth was legitimate, and there had been neither verbal nor written instructions.

Now it's Rifaat's turn to put his questions. Regarding the photograph showing a taped-up head supposedly seen by a Minister (of the Interior), the witness said that such a photograph did exist - colleagues had taken it of a Black African on an aeroplane. He claims not to know how large it had been, or why it had been taken or for how long it was displayed in that room, maybe half a year or a year. Why it was gone after 1/5/1999? He hadn't asked.

He too had sealed deportees' mouths. He remembers the deportation - probably to somewhere in Africa - he had referred to in the abovementioned report, likewise a deportation in late 1998 or early 1999 to Lagos. On one occasion it was possible to remove the tape during the flight, the other time it wasn't, as the deportee was being obstreperous almost right up to the stopover. That time, help had to be sought from the local police, and the deportee was put into a separate room, where the tape was then removed. For the onward flight he was taped up again. They kept trying to persuade him that his situation was hopeless, he should abandon his resistance, so that his restraints could be loosened - to no avail.

Like all highly aggressive deportees, he was at all times escorted by 3 officers. As well as his mouth being taped up, his hands and feet were tied together, and the person was immobilised in his seat by means of fabric tapes and strips of adhesive tape - the witness cannot provide specific details. As the man was butting with his shoulders and tugging with his feet, the tape could not be undone. Nor was he allowed to visit the lavatory, because of the risk that he might go and see the pilot. He (the witness) did not abort the deportation, however, as he never aborted a deportation on his own initiative.

He doesn't know, he says, whether he would have been subject to the captain's authority. During this deportation, no difficulty with breathing, no debilitation and no deterioration of the deportee's health were observed.

Attorney Ofner starts off by asking about the abovementioned photograph. The witness recounts that Einem, the Minister, walked through every room; what his comments on the picture had been the witness doesn't know, as he had not been present. He claims to know nothing of the staff meeting mentioned by his superior and reported there was no mention of taping up being prohibited. Prior to Marcus Omofuma's death there were no regulations whatsoever, since then regulations were being handed down by the dozen.

Ofner again asks about the above-described problem deportation. According to the witness, the restraints were removed before touchdown at Lagos. Many African deportees asked the officers for money before touchdown, he says. Deportees were always allowed to visit the lavatory prior to departure. If a detainee was being difficult, neither he nor the officer escorting him could visit the lavatory.

Attorney Zanger then asks why on that occasion the adhesive tape had been removed before the plane started to descend. The reason, according to the witness, was that the detainee had ceased his obstructive behaviour. He had been told that he had better calm down, as the police were waiting for him at Lagos and would otherwise lock him up too. The adhesive tape, at any rate, was removed only if safety and security warranted this. Asked by Rifaat, why tape had been reapplied, the witness states that the deportee had to be secured again, as he had been biting and was resisting.

3rd witness: Herbert K. (detective, Wasagasse)

He has been in retirement since 1 Feb. 2002.

He states that he spoke the truth when the examining magistrate questioned him on 8 June 1999.

He had been working for the Aliens Police since 1976 and at the time was Deputy Head of the Aliens Police Department. The witness states that 1995 was the first time a report mentioned the use of adhesive tape - one of the aims being to seal the mouth - during deportations. He knows this, he says, because he had been instructed by the court to retrieve all relevant reports.

The judge then queries him about the previously mentioned deportation report which was returned to the officer with a yellow sticker attached and was to be rewritten without mentioning the use of tape. The witness replies that at the time (1994/95) he was in a senior position and that he saw all deportation reports. Files were always passed to him and to the official dealing with such cases. He claims to know nothing about a yellow sticker, or about any internal instructions. If tape was used, the report said so.The witness also knew that the officers, like their German colleagues, purchased adhesive tape and taped up detainees who behaved aggressively. As far as Herbert K. is concerned, sealing deportation detainees' mouths is the mildest measure without which contact would not have been possible. They were politely informed of their deportation, whereupon they threw themselves to the floor even while still in police custody. The officers, however, had to do their job.

In 1996 a letter had arrived from the Independent Administrative Tribunal (UVS), which his superior H. had responded to in a written statement, which was forwarded, he says, to Dr St. and the Head of Department 4. Nothing happened as a result.

Once a detainee calmed down, the officers automatically removed the tape, he claims. This usually happened upon takeoff, with the deportees then being able to eat and drink. There were neither verbal nor written instructions from higher up. Nor is he aware of a staff meeting or of any statement that taping up was to be refrained from. Nor was this referred to in the statement by his superior H. to the Independent Administrative Tribunal (UVS) in 1996.

At that time, no airlines except Balkan Air and Aeroflot were prepared to carry deportation detainees, as these often kicked down seats. A flight to the Sudan by Aeroflot took 15 hours. Often, neither detainees nor officers were able to use the lavatory. On one occasion, they had to fly back from Rome.

The judge then asks why the procedure of aborting problem deportations and reporting the detainees for resisting the authority of the state was not adopted, or why chartered aircraft were not used. The witness replies that deportations using chartered aircraft cost ATS 650,000, others just ATS 60,000. He doesn't know how often deportations were carried out by chartered aircraft after 1 May 1999.

He then mentions, in addition, the helpful attitude adopted by officers who gave the deportees money upon arrival in Lagos. He said: "We are not to blame. I have 42 years of service." Going through the reports, he came across 5 - 6 cases where deportees were taped up.

Asked by the judge why officers carried specific equipment if taping up was such an extremely rare occurrence, the witness cannot think of an answer. However, according to him, the Ministry had given instructions that a deportation was to be carried out by 3 officers whenever deportation detainees had announced they would resist when initially questioned. Which person or which authority in the Ministry had issued instructions that 3 officers were to escort Marcus Omofuma during his deportation, the witness cannot remember. In any case a senior official informed the Ministry whenever someone announced that he/she would resist.

The Deputy Judge inquires why the equipment was bought privately and not funded by the authority. The witness merely says that there was nothing in writing; nor had the subordinates ever asked for advice.

Dr. Zanger asks whether the witness was aware of the Independent Administrative Tribunal (UVS) ruling that taping up was an infraction of human rights; the witness answers in the negative.

The witness was not aware, from reports or accounts, of any health impairments subsequent to tapping. He did know the picture on display up to 1.5.1999 in an Aliens Police office. It showed a photograph of a detainee and a flight ticket. He couldn't remember whether the detainee's mouth was taped up.

In the reply to the parliamentary question by Terezija Stoisits it is stated that a bite could, according to the present state of knowledge, cause diseases and that resolute action should therefore be taken whilst not harming the person. The judge then asks what "resolute" should be interpreted as. The witness doesn't know.

All of them are "detective servers", he claims. On one occasion Minister Einem thanked them for having given assistance to a Black African. For all that, the officers were not treated well in Lagos. The witness claims to have been to Lagos 5 - 6 times, where money was taken from him in the VIP lounge without him getting anything in return (5 dollars, twice). In response to Ofner's question, the witness states that officers who had carried out problem deportations had reported to him that they had been able to employ a psychological approach to the deportees, whereupon the latter had calmed down. There had been no instructions or orders; the officers were on their own. All his colleagues had been polite and intent on a peaceful deportation, intervening sensitively vis à vis aliens.

The officers' health had precedence, but they were sometimes bitten. Ofner then wonders what the consequences would have been if deportations had been called off again and again as a result of resistance being offered; word would have got round, and the ultimate result, after a few abortive deportation attempts and after the maximum length of deportation detention had been reached, would have been the release of the deportation detainee.

Ofner asks, consequentially to a query "from above" (by a Ministry of the Interior jurist), about the political views of the defendants after 1.5.1999. The witness replies that he had never taken an interest in his subordinates' political tendencies. The defendants had merely, by filling in a form from a political party, resigned from their trade union.

He additionally mentions that the 3 defendants had been to see Michael Sika, the then Director General for Public Safety, on 10 May 1999 and he too had been unaware of the abovementioned ruling by the Independent Administrative Tribunal (UVS).

4th witness: Karl H. (senior detective)

The witness says that, whilst his statement to the examining magistrate made on 5 June 2002 had been largely correct, he would like to add something that he hadn't been aware of at the time. First he refers to the abovementioned picture. In 1995 the defendant District Commissioner B., prior to a visit by the then Minister of the Interior Einem, had presented him with photographs he wanted to show to the Minister. These were pictures of deportations, one showing a person whose mouth was taped up. When the Minister came he was shown the pictures. The witness cannot tell whether these included the one with the sealed mouth, as he was not present.

The witness was with the Aliens Police Department from 25/1/1995 to 4/6/1999, first as Interim Head, then as the appointed Head.

In early June 1999 he left the Aliens Police for personal reasons. He was the three defendants' immediate superior. In 1995 he saw the photograph with the adhesive tape, but did not really take it in and soon forgot about it. He was not aware of the parliamentary question tabled by Stoisits in 1993.

In 1996, when dealing with the complaint to the Independent Administrative Tribunal (UVS), he became aware, for the first time, of the issues involved in problem deportations, and he began to worry that something might happen if a detainee was kept taped up for too long. He responded to the complaint, claiming a self-defence situation in which the only way the officers could protect themselves against being bitten by deportation detainees was to use sticking-plaster. He submitted the complaint to Dr. Stortecky, and it then went through the proper channels. The witness was hoping that the matter would be thoroughly investigated and that the Independent Administrative Tribunal (UVS) would come to an unambiguous decision.

In the absence of such a decision he could not, he argued, have forbidden the officers to use adhesive tape, as he would thus have left them - who after all had to carry out their instructions - in the lurch.

When no ruling was received, he finally enquired, after 1 - 2 years, and was told that the complaint had been rejected on formal grounds. Since neither Dr. Stortecky nor the Legal Bureau for Organisation and Specialist Supervision responded, and since a thorough investigation was not carried out nor any instruction issued, the witness thought that the use of tape was legitimate.

In 1998, another case where tape had been used was disclosed. Again, there was no response from the Independent Administrative Tribunal (UVS) or the Legal Bureau. The witness felt he had been left to his own devices in a difficult situation - after all, he could not forbid the officers to do something that higher authorities knew about and had themselves not forbidden. The officers had been in a difficult situation and had to employ suitable means. He did, however, approach individual officers if he heard of a case where tape had been used. He had been under the impression that it happened only rarely - if it was absolutely necessary, in special situations or with violent detainees. But he did talk to the officers, telling them they ought not to do it again as someone might die in the process.

Also, in the autumn of 1998 he arranged two staff meetings with the entire team to discuss the problem; that was after the incident in Belgium when a Nigerian woman being deported was suffocated with a cushion. That had been a good opportunity, he said, to point out to the officers the problems involved; after all, somebody might have died if taped up over a prolonged period. He also claims to have said that if a deportation should turn out to be impossible except by using tape, it would be better to abort it and return the deportee to the police jail.

The judge then points out that apparently nobody can remember these staff meetings. Possibly the witness is referring to these solely to "pull his head out of the noose". The witness retorts that from 1996 onwards his head had not been in the noose, as the relevant authorities were not responding. The judge replies that, after all, there is something like individual responsibility.

The discussion then moves on to the use of adhesive tape. Initially, the witness had merely read in a report that somebody had been immobilised in a chair, but he did not know whether or not this had been done with adhesive tape. He claims to have been unaware of the parliamentary question of 1993, which mentioned adhesive tape and plastic.

Likewise he was unaware of the abovementioned equipment carried by the officers. Deportations usually happened on Saturday, when he wasn't on duty.

The deputy judge then asks who had been providing comments on the pictures during the Minister's visit; the witness doesn't know. He himself claims not to have discussed the problems with the Minister, as he hadn't begun to wonder until after 1996. When defendant B. showed him the pictures, he didn't see any need to act, as he thought the Minister would do something.

He knows nothing of a report that was returned with a yellow sticker.

The witness then answers attorney Zanger's questions. He says that he doesn't know whether the taping-up shown on the photograph had been done with sticking-plaster. Under the circumstances as described he would have called off Marcus Omofuma's deportation. Officers were always obliged to check whether their actions were proportionate. During the staff meeting, some officers had protested when he gave them advice, on the lines "that's wrong, nothing could happen to me as it is". Nobody agreed with the witness that the practice might be dangerous. The staff meeting went on for between 1/4 and 1/2 hour.

The judge then asks why he hadn't written to his superior authority, stating the facts and asking for instructions.

The witness, in justification, pleads his extremely difficult situation. Firstly, politicians failed to provide any options for organising deportations by chartered aircraft on a EU-wide or Europe-wide basis. As deportations using small aircraft were very expensive, use had to be made of passenger aircraft; that, however, was possible only if the deportee was quiet.

At the time, the witness held the rank of major. He says that he did not apply for instructions, as his superiors did not react to deportees' mouths being sealed, i.e. to questionable means being resorted to, and he therefore assumed that they did not wish to issue a decree.

He thought that in the interest of the state, those responsible did not wish to impose undue restrictions on officers' behaviours; he did not want to intervene where this was not wanted by his superiors. He also felt "if I write that, I'll be transferred because I'm obstructing those up there".

The judge reproaches him - he, as a senior officer, had to show some backbone and act according to his conscience; instead, he passed the problems to his subordinates. The witness replies that he thought that nothing would happen and that, moreover, he discussed the matter with his officers during the staff meeting.

He is then questioned by Dr. Rifaat. The witness got only a fleeting glimpse of the abovementioned photographs, remembers a picture with a taped-up mouth. He thinks that he discussed with Dr. Stortecky the practice of taping up, when he submitted to Dr. Stortecky the response to the Independent Administrative Tribunal (UVS) complaint. After all, he had felt concern since 1996 and had also made enquiries with a jurist. Dr. Rifaat mentions a deportation report of 28.4.1999 concerning a deportation on 24.4.1999. This reports that a deportee's mouth had to be sealed with sticking-plaster because he had attempted to bite the officers' fingers. During the flight he had initially been quiet, but had then tried to persuade the passengers that he was being kidnapped and had wanted to see the captain.

The witness claims not to have read this report until after he returned from his holiday, i.e. after 2 May 1999.

The witness then deals with attorney Ofner's questions. Whilst he felt concerned, he could not forbid his officers to protect themselves against being bitten. He was hoping for instructions from higher up, but nobody responded. If taping up had been inadmissible, he would have prohibited it. As it was, there was nothing he could do. Ofner's comment is that the hierarchies maintained an aloof silence. By showing the photographs to the Minister, defendant B., strictly speaking, failed to go through proper channels (witness H., Dr. Stortecky, Counsellor Kovarnik, Chief of Police Stiedl, Minister). The witness, though, states that he had not regarded B's action of showing the photographs as a cry for help. Ofner again mentions the staff meeting that nobody knows anything about and asks why the witness never came along on these flights; as it was, his only view was that from his desk.

The judge then asks why the witness had made no enquiries with Dr. Stortecky or the Legal Bureau about what officers were specifically allowed to do if somebody bit them. The witness replies that at the time - prior to Marcus Omofuma's death - he did not consider the risk all that high; after all, he had only heard that tape was applied for a short time. Anyway, after a catastrophe views often change (he draws a comparison with Chernobyl).

The Public Prosecutor then asks the defendant to name the person who had provided comments on the picture that was shown to the Minister. B. replies: "A superior." He claims to be afraid to name names, however. The judge comments: "Those are fine conditions we have here!" Asked by Dr. Zanger, whether he had considered health problems when showing the pictures, defendant B. answers in the negative. During the Minister's visit, Counsellor Kovarnik was present, he states. The judge expresses surprise "that spirited behaviour is not rewarded". The defendant does not remember a staff meeting having as its theme the risks associated with the practice of taping up. The witness insists that this staff meeting took place, even though this is disputed by everybody else.

Attorney Zanger now makes a suggestion: He wants new witnesses to be summoned (e.g. Dutch passengers). These witnesses would be able to state that defendant B.'s defensive claim to have told Marcus Omofuma that the tape would be removed if he (M.O.) kept quiet, was false. For example, it had been stated that the upper part of Marcus Omofuma's was immobilised by means of a rubber-like rope and thus constricted. This constriction was claimed to have been so tight that a swelling bulged from his throat. After the plane had lifted off, there had been no further resistance or kicks. The head had been lolling, Marcus Omofuma had appeared to be sleeping. All this would falsify B.'s statement and classify the case as cruelty with intent, resulting in M. Omofuma's death. The witnesses would also state that the officer behind Marcus Omofuma had tightened the rubber rope while laughing gleefully.

This suggestion is made into a formal application.

Attorney Ofner asks whether this can be appealed.

Attorney Rifaat argues: A prerequisite for the witnesses' statements to be regarded as suitable evidence is the witnesses' ability to adjudge or assess whether the 3 defendants' actions resulted in M. Omofuma's death; a decision on this, however, could not be reached by the witnesses, but only via a detailed discussion of the 3 expert's reports. As to the measures taken by the defendants on the plane, these are the subject of statements from the defendants as well as from cross-examined witnesses and crew members. For the application to produce evidence it is not clear why witnesses finally named, after three years, should have observed anything relevant.The applications to produce evidence constitute purely inquisitive evidence, which is not provided for in the Penal Code. Attorney Ofner follow suit: Inquisitive evidence is not admissible. The only purpose is to stir up emotions. Only the Court is entitled to decide whether a statement is a defensive claim.

The public prosecutor, however, refers to witnesses of the action who are able to give relevant evidence. Their appearance in court could make a significant contribution to clarifying the facts of the matter.

Interval till 13:15

5th witness: Dr. Franz Löschnak (retired, self-employed)

He was Minister of the Interior from February 1989 until April 1995. The Aliens Police was under his control. The fact that deportees' mouths were occasionally taped up first came to the witness's attention in 1991/92, in connection with departures from Schwechat airport, where senior detective R. accompanied him to his plane. When he inquired about developments in general he was told that that same day had seen the deportation of an "obstreperous" person, involving actions taken in self-defence. On another occasion he heard that a fracas had occurred in the airport building and that someone's mouth had briefly been taped up. The reply to the parliamentary question in 1993 dealt with an isolated case. The response had been prepared by Colonel R.. There had been 11 questions to answer.

The witness states that as a result of the collapse of the Eastern bloc and open borders, the security forces were very busy from 1989/90 onwards. New challenges arose, e.g. problem deportations. The aim of the parliamentary question was to query a problem deportation. The judge then expresses the view that in Austria rules are laid down somewhere for everything, there are regulations to cover all contingencies, and so he asks about rules for officers in the front line, how they should act in the event of problem deportations.

The witness knows of no prior regulations, nor did he see, after the case in question, any need for new regulations. After Colonel R.'s account of an obstreperous, truculent deportee who bit, the Minister thought that it was sufficient for the active officers to take self-defence measures.

The judge then asks whether it was proper to deal with officers in such a manner that they didn't dare to put in a written request for instructions, for fear of being transferred. The witness replies that, with 35,000 staff in the Ministry of the Interior, rumours would circulate. He could not rule out the possibility that someone might have had to bear the consequences.As the problem had been presented to the Minister, consideration was given to joint charter flights, together with Germany and Switzerland to keep the costs down. But whether taping up was or was not permissible was not debated, and while there was talk of actions in self-defence, it was not thought necessary either to take appropriate measures or to question them.

The answer to parliamentary question No. 8 stated that according to the general state of knowledge, bites could cause diseases. The security forces were afraid of AIDS. Deportations were disagreeable to his staff, especially if there was resistance. They had to do their job, though. The officers had been under instruction to act considerately but resolutely. Resolutely meant that official duty had to be carried out, employing self-defence measures if necessary. The authorities did not want the deportation of someone who resisted deportation to be impossible. The witness again describes the situation at the time, which had changed because of openings to the East and the influx
of refugees. There was no legal basis for the wave of refugees entering Austria. New legal foundations were not created until 1992/93.

Upon Rifaat's comment that up to Marcus Omofuma's death there had been never a word, and that only after his death was a flood of regulations issued, the witness replied that the state of knowledge in 1991 differed from that in 2001. The judge suggests that without Marcus Omofuma's death nothing would ever have been done.

The deputy judge then asks whether there had been any objections to the photograph which depicted a taped up mouth and which had been on display, proudly exhibited, in the office for a long time. The witness had not been aware of this, however, otherwise he would have had the picture removed. Pictures of official actions ought not to be taken and displayed, he felt, this was a question of morals.

Rifaat asks whether there had either been reports by top officials concerning deportations where deportees' mouths had been taped up or discussions with top officials. The witness replies that this had been a subject in meetings with the department heads, which in turn were necessary for the international discussions about deportations. The issue of taping up deportees' mouths was not explicitly brought to his attention, however. Every Monday, meetings were held with department heads, and "problem deportations" were discussed 2 or 3 times. Mouth-taping had not been a subject of these meetings, the witness only heard about this from Lt. Col. R. As he was aware of only 1 or 2 isolated cases, he did not feel concerned.

Rifaat then addresses the parliamentary question in more detail.

Question 3 is: "Do officers regularly use wide adhesive tape?" In response, the witness describes the following procedure: A parliamentary question is delivered to the Ministry, first passing to the Presidial Department, then to the department concerned, and is dealt with accordingly by the appropriate authorities. To draft a reply, the Schwechat office is consulted, for example, and they will respond with a statement. A draft response is then prepared, which passes via the Presidial Department to be submitted to the ministerial cabinet. All this happens under time pressure. Each year, 500 - 600 parliamentary questions are tabled to the Ministry of the Interior, he says, sometimes comprising 50-70 subquestions - i.e. the signatory is unable to study the file. The witness always read through the questions and answers; if these appeared plausible to him, he agreed, otherwise he asked for specific details, and the department concerned or the Presidial Department made corrections.

Re Point 7 in the Parliamentary Question: The first draft reply mentioned adhesive tape which was removed either when there was no longer a risk of injury or, at the latest, on the plane. At the correction stage, "adhesive tape" was crossed out and replaced by "securing means".

Re Question 8: No decrees were issued relating to problem deportations. Attorney Ofner likewise goes into a more detailed discussion of Question 3, which asks whether adhesive tape was used on a regular basis. Lt. Col. R. is asked to comment: "He was raising a ruckus, it was not possible to leave the country. As he was hitting out, kicking out and biting, he was restrained. Since officers had repeatedly been bitten on previous occasions, the deportee's mouth was taped up; the officers thus protecting themselves. But this did not happen on a regular basis - only in exceptional cases if someone was bitten." The final answer, however, was "no".

Question 8 states that there were witness reports of "fun" and "niggers bite". The proposed answer stated that it had not been fun for the officers, since AIDS can be transmitted by bites and there was a long wait for blood test results, causing severe mental stress. The final answer merely states that it had not been fun, as serious bite injuries often occurred, entailing the risk of severe illness.

Ofner then addresses the Human Rights Advisory Committee report, which states that individual responsibility applies, but that there is a lack of guidelines and training. In other words, detectives and security officers had not been trained. The witness replies that additional training took place only when prompted by specific incidents.

Attorney Ofner then confronts the witness with the report by the Council of Europe's Anti-Torture Committee (CPT), which in 1994 criticised the use of adhesive tape in Austria. The witness states that, had he known then what he knows now, he would have had training courses arranged from 1990 onwards.Ofner says that after Marcus Omofuma's ("or whatever his name is") death it was finally realised that something had to be done. The witness comments that he is not in a position to assess this.

The judge then asks whether financial considerations had been relevant, since deportations were very expensive. The witness refers to the discussions with Germany and Switzerland. The judge states: War costs money - the rule of law costs money.

Attorney Zanger points out that self-defence continues for only a short time. The witness states that, in the presence of the public, biting and shouting must be brought to a stop; the plane then usually became quiet, requiring no further actions. In the event of quiet not descending, the deportation would, as far as the witness knew, have been aborted after the captain had been consulted. The witness had given no further thought to the issue, as he was aware of only 1 or 2 problem cases, and he had assumed that biting, spitting and hitting out had occurred only prior to the flight, i.e. only briefly. Dr. Zanger's question to defendant B., whether the picture of the taped-up man had appeared immoral to him, is rejected, as it constitutes a subjective question.

6th witness: Kurt K. (police officer)

The witness says that his statements made before the examining magistrate on 23.6.99 are correct. He has been with the Aliens Police since 1994. He had been involved in deportations from time to time. "Problem deportations" are those where the deportees put up a strong fight, resist and use violence. Superiors had issued no instructions on this point. Officers therefore acted according to the rule book, in self-defence, as it were.

Deportations proceeded as follows: The deportee was collected, everything was explained to him, the team took an official car to the airport where they checked in and were joined by colleagues from Schwechat in uniform; in the event of resistance (which was not very common, though), the requisite measures had to be taken - the hands were fettered, the mouth was sealed with sticking-plaster, the deportee was carried onto the plane. The sticking-plaster was especially wide so it would not come off. It was always made certain, however, that the nose remained unobstructed. Sometimes the tape had to be wound around the head twice, but not vertically. For how long the tape stayed in place was difficult to say. If the deportee signaled by tapping, it was removed. The hands were fettered at the back, thus allowing signals to be made. In the witness's presence, tape never stayed on for any length of time.

The mouth was sealed for self-protection against bites. This practice evolved during the time the witness worked there. Sticking-plaster and velcro tape were purchased by his colleagues, not by the employer, and were passed on. The judge argues that, after all, a parliamentary question on this subject had been tabled as early as 1993! The immediate superiors at the time were the Group Leader, Chief Inspector K. and Lt. Col. H. The witness denies that there was ever a staff meeting involving instructions not to use tape and to abort the deportation. The witness had indeed wondered whether suffocation was a possible consequence of being taped up; a colleague had asked a doctor, who said that as long as the nose remained clear it was not dangerous. This comment was sufficient for the officers, as they did it frequently, and nothing ever happened. The witness claims always to have noted any use of tape in his deportation reports. He then relied on his superiors to pass everything on. He had not had special training or psychological schooling.

The public prosecutor asks whether deportations were sometimes aborted. The witness had experienced this twice. On one occasion a flight had to be aborted in Rome because the detainee ran away, and once the captain refused the deportation. Information on the deportee's state of health was not available.

The judge wants to know whether there are written minutes of staff meetings. The witness states that these do exist for important staff meetings; the superior officer writes them himself and then has them signed.

In response to attorney Zanger's questions the witness says that he had been wondering about deportees' health problems since 1998. Deportees were secured solely by means of the standard safety belt, thus leaving the chest free. Their hands were tied backwards, using velcro restraints.

From 1994 to 1999, the witness was also present at 7 - 8 problem deportations. The deportee's mouth was taped up on 5 or 6 occasions. Nobody ever reported breathing problems. The tape was always removed once the deportee had calmed down.

Attorney Ofner asks whether those who had been fettered had kicked out in a forward direction and had tossed their head about. The witness says that this had not happened - nor had he felt he had been left to his own devices.

Rifaat mentions a report dated 27.3.1995. This says that Black African passengers rushed the police officers in a threatening and aggressive manner. The deportation was thereupon aborted and a return was made to Vienna with the refugee. Rifaat utters: "Bravo".

Next day in court: 14.3.2002, 9:15