Those present:
Judge Fiala, 2nd judge, 2 lay judges, 2 two substitute lay judges, Public Prosecutor, Advocate Lansky representing Marcus Omofuma’s father, mother, son, daughter and sister, Advocates Rifaat and Ofner, the accused B., R. and K as well as press and public with numbered seats. The courtroom was fuller than on the first day of the trial.

The defence did not want to accept the involvement of Advocate Gabriel Lansky on behalf of the private parties involved without dispute. Mr. Rifaat for the defence was of the opinion that Advocate Zanger already represented the children and parents and that the right to put questions should only be given to one of the two private lawyers and that they should agree which one it was to be amongst themselves. Apart from that, he asked Mr. Lansky if he knew even one of the people he represented personally. Mr. Ofner for the defence brought the alleged double identity of Marcus Omofuma into play and asked what damage Omofuma’s siblings had suffered that they should be allowed legal representation in the case. The judge asked Mr. Zanger about a fax that he (Zanger) had forwarded to him (Judge) from Marcus Omofuma’s brother in which he (Omofuma’s brother) states that he is not considering appointing another legal counsel. Mr. Zanger answered that of course the brother cannot speak for the parents and that the power of attorney signed with fingerprints, which Mr. Lansky laid before the court, should not be questioned. As a consequence of the exchange the judge decided to admit Mr. Lansky as representing private parties to the trial. Mr. Lansky lodged a claim for compensation in the amount of €10.000.- Mr. Zanger joined in with a claim for compensation of €100.000.- which was noted in the records.

The judge distributed the transcript of the last session. They had not yet been corrected. There would be an opportunity for that on 8.4. should anyone note anything that did not make sense.

Witness Karl Schlögl

Asked for his personal details, the ex-Home Secretary (Minister of Interior) stated he was public employee and Mayor of Purkersdorf. As successor to Caspar Einem, he was Home Secretary from 28.1.1997 till 4.2.2000. The judge’s first question was whether Mr. Schlögl knew of the tape gagging before the 1st of May. He answered in the negative. The judge pointed out that there had been a parliamentary question on the subject in 1993 during which time he, Schlögl, had been a member of parliament. Mr. Schlögl answered that he did not read every parliamentary question. The judge asked what he thought about deportation when he was minister. Mr. Schlögl answered that deportations were certainly not pleasant affairs and that he probably also thought that there might sometimes be resistance to deportation but that the problem had not been brought to his notice before the 1st of May. The judge said that there were different kinds of resistance. There was what could be called normal resistance during an arrest, something, which could be overcome with force, the person put in the police van and the case was closed. In the case of a deportation, however, resistance was of longer duration and could not be brought under control so easily. Schlögl repeated that the problem was not brought to his notice in any way which might have suggested that action was necessary. The judge remarked that it had, then, been brought to his notice and Mr. Schlögl said that he could not remember that it had been. Neither could he remember whether he had paid the police station in Wasagasse a visit during his period in office. He had no memory of a photograph showing a man with his mouth taped. Officers could have approached him unofficially.

Mr. Zanger asked if Mr. Schlögl would have forbidden taping had he known about it. Mr. Schlögl answered that after the 1st of May he had taken measures so that only specially trained officers would be involved in carrying out deportations. He had also issued a prohibition on tape gagging. He was not familiar with the uniform and equipment of the deportation officers.

Mr. Lansky’s questions were directed to establishing that there was a human rights component in police education and that officers could be expected to be aware and pay attention to basic principles of reasonableness in cases involving human rights. A question from Mr. Lansky as to whether it could be understood that Schlögl knew about taping to the chair was interrupted by the judge with the remark that the polite form of address was to be used in a trial. The question was then answered in the negative. A second question as to whether gagging was legal or not was objected to by Mr. Rifaat on the basis that gagging was not an issue in the trial since ‘gagging’ was understood to mean a situation where something filled the mouth and if the scope of the trial was not to be enlarged the term ‘tape gagging’ should be used instead. The judge allowed the objection. Mr. Lansky repeated the question using the preferred formulation to which Schlögl replied that he was there as a witness and assumed that he need not answer the question. Judge Fiala - only questions directly relevant to the trial can be asked and the trial was not a political event. The next question concerned a parliamentary question and the judge criticised the fact that appropriate transcript was not available to the court. A ten minute interval for copying was called for.

During the interval Mr. Zanger announced that he would relinquish his brief and distributed the following press release ( dated for the following day) to the journalists waiting outside the courtroom without comment.

Press Release
From DR. Georg Zanger
19th March, 2002

Ladies and Gentlemen
1) Effective today I relinquish my brief in the criminal case MARCUS OMOFUMA vs. B et.al.
2) We have reached a point where the fruits of three years of my work can be seen - in my opinion there is no doubt that the three police officers will be convicted.
3) Now that the difficult creative work has been successfully completed, there are suddenly groups and individuals who have not been heard of during those three years, who left me quite alone to fight for a fair trial for Marcus Omofuma and now wish to profit from my efforts.
4) In addition, it is not acceptable that these people feel entitled to give me advice and directives.
5) The most important things have been done and the strategy has been successful:
The court has ordered a third expert opinion;
It has been determined that Marcus Omofuma was suffocated;
The public prosecutor’s office has brought charges, contrary to their original intention;
The UVS (Independent Administrative Tribunal) has decided that the torture of Marcus Omofuma by the police officers was unlawful.
The Republic of Austria is bound to pay damages and maintenance.
6) "Zanger moves" stands for creativity in difficult legal situations not for handling difficult people.
Signature

In court however there was no announcement of relinquishing his brief.


After the break, Mr. Schlögl re-affirmed his statement about the parliamentary questions. He could not have imagined that adhesive tape would be used in deportation cases since measures of this nature were contrary to human dignity. He saw no necessity to make rules specifically for deportations. In answer to a question from Mr. Lansky as to whether he would have considered it necessary had he known about it the judge refused to allow the question on the ground that the trial was of the three officers and not the witness. He wanted it understood that there should be order in his courtroom. Mr. Lansky’s remark that he would also like to see that brought him a warning under section 236a of the StPO[Court Procedure Rules]. The final question to be put to Mr. Schlögl was whether he, as a witness, would say that gagging was clearly in contravention of human rights. He said yes.

Mr. Rifaat continued the questioning and Mr. Schlögl confirmed that between 1991 and November of 1994 he was a Member of Parliament responsible for environmental and financial questions. Thereafter the focus was the creation of the Human Rights Advisory Committee after the death of Marcus Omofuma. Mr. Schlögl stood by his statement that the committee was planned prior to that event. The proceedings then turned to whether the witness knew of the committee’s recommendations. This depended on whether they had been made during his tenure as minister. Mr. Rifaat read the recommendations - regular refresher courses but in any case at least once a year, creation of an internal control commission, courses with relevant medical content ( states of shock), the relationship of NGOs to the educational process, language learning and training in possible situations and ways of handling them, the judicial law relating to human rights from the European Courts. He asked the witness if he knew of these recommendations and Mr. Schlögl replied he did not know them in detail but he assumed that they were put into practice. Was this before the 1st of May? As far as the witness knew, no.

After the judge made himself acquainted with the details of parliamentary questions and agreement was reached as to how the pages should be numbered, Mr. Ofner quoted a passage in which, independent of the responsibility of the officers, measures were demanded for safeguarding human rights and training in such matters. He wanted to know how it was possible that there were no guidelines in place before the 1st of May 1999 with regard to deportation except those relating to purchasing tickets. Mr. Schlögl was of the opinion that it could not be denied that there had been mistakes. It was his responsibility to ensure that a tragic case such as the present one should never happen again. That was why detailed rules were laid down after the 1st of May. He had not known that the local police were specially trained in deportation matters but the criminal investigation policemen were not. Mr. Ofner remarked that there had been cases of death during deportation in other EU countries. Mr. Schlögl said that he had not heard of them. What was certain was that in meeting with top-level officers it had been made quite clear that “something like this, must not happen here.” When Mr. Ofner asked his next question, saying that Mr. Löschnak knew of the tape gagging and had accepted it as self-defence, Mr. Zanger intervened to remark that Mr. Löschnak had not expressed it in that manner and the judge concurred. Mr. Ofner commented on the exchange with, “Come on, Georg, stop pestering me.” Mr. Schlögl said that he was not familiar with the problem and so had not ordered measures to be taken. Thereupon Mr. Ofner based his questions on the book from former general director Sika asking whether it was correct to say that on the 2nd of May a telephone call had taken place with the Austrian ambassador in Sofia which was listened to by top-level officials and during which the ambassador said that everything was fine, that the officers were innocent and that a Bulgarian doctor had determined the cause of death to be a heart attack. Mr. Schlögl said that he could not remember exactly since the first reports had been contradictory.

In answer to a question from the public prosecutor he said that suffocation had also been mentioned as a possible ground in the first reports. The public prosecutor was notably restrained throughout the day. The only other thing he asked was what the officers should have done, what alternatives they would have had if the use of adhesive tape was prohibited. Mr. Schlögl could no longer answer the question.

Mr. Zanger interjected that Mr. Einem had indicated that as against a danger of being bitten, the officers could have worn gloves. Mr. Schlögl could no longer remember if gloves had been discussed. He could remember one suggestion whereby the deportee would be obliged to wear a crash helmet. Luckily that had not been taken up because a few weeks after the 1st of May 1999 there had been a fatality during a “crash helmet deportation.” Mr. Zanger interjected a question to the accused B - did he tell a stewardess that Marcus Omofuma was a drug dealer? B answered yes, he had told the stewardess that the prisoner was a drug dealer so that he wouldn’t have to go into details of the deportation. Mr. Zanger then asked if B had any information whatsoever which pointed to Marcus Omofuma being a drug dealer. B answered no. In answer to a question about gloves be replied that they did not have any gloves at the time.

Mr. Rifaat interjected with a statement to the effect that gloves would not have been enough to protect the officers from bites. It would have needed a full body condom. Mr. Lansky was indignant at this disgusting cynicism and requested the judge to prohibit it. In answer, he received a second warning under section 236a of the StPO with the threat that the next warning would lead to his expulsion from the courtroom.

Mr. Zanger continued with the examination - what would have happened if the accused had worn gloves. On the advice of his legal representative B refused to reply to the question. Accused R said he did not know and accused K that the question asked for pure speculation.

The judge directed the questioning towards Mr. Schlögl again - were the costs of between ATS 60.000.- and ATS 650,000.- for a charter deportation ever a problem as far as he was concerned. Mr. Schlögl said that it had never been a problem for him.

Mr. Ofner returned to the sequence of events leading to Home Secretary (Minister of Interior) Schlögl being notified by the Austrian ambassador in Bulgaria on the 2nd of May. He should have flown to Canada on that day but, after a call from the General Director for Public Security, he had cancelled the flight. Mr. Ofner apparently intended to try to combine the telephone call and the alleged statement that a heart attack was initially asserted to be the cause of death and asked Mr. Schlögl who, at the time, was of a different opinion. At this point the Public Prosecutor lodged an objection. Mr. Ofner wished to submit the Sika book as evidence but the judge refused. Mr. Schlögl said that prior to the crisis meeting in the Home Office (Ministry of Interior) he had had only two telephone calls and had informed the Federal Chancellor. The exact cause of death was not known for days afterwards.

The panel of judges retired to consider whether Mr. Lansky’s question be allowed. Result: the question is permissible because it is already contained in previously asked questions. It is not necessary to ask it again. Mr. Rifaat received a warning from the judge for his use of the phrase “full body condom” under section 236a. Mr. Lansky withdraws the phrase “full body condom” and replaces it with “ wetsuit.”

Then questions were directed to the accused about what Mr. Schlögl had said. Accused K asserted that the training did not last for two years and that there had been no special training for deportations. Mr. Ofner cited the answer to a parliamentary question whereby adhesive tape goes under the heading of office supplies and as such is not noted separately.

Mr. Lansky asked if their had been training in human rights issues and if classes during basic training were a normal part of the education. Mr. Schlögl answered affirmatively. Mr. Ofner thought that human rights as part of basic training was only introduced at the beginning of the 90s. At that point the accused had already completed their basic training.

End of Court Session approx. 12.30 p.m.