The head of the Vienna Public Prosecutor’s Office, Johann Fuchs, was found guilty at the Innsbruck Regional Court on Wednesday and sentenced to an unconditional fine of 72,000 euros. Fuchs had to answer to the Ibiza investigative committee for breach of official secrecy and false testimony. The verdict is not final, Fuchs can appeal. The suspended section head Christian Pilnacek did not want to testify as a witness.
In December 2020, Fuchs is said to have submitted parts of the file to Pilnacek about an advertisement against a “Presse” editor. The Office of the Public Prosecutor for Economic Affairs and Corruption (WKStA) had filed a complaint (which ultimately was not pursued due to a lack of initial suspicion) against the journalist on the basis of an article she had written that was critical of the authority. Fuchs had denied the transfer at a first trial date in early July. After the verdict was pronounced, he left the court immediately – visibly shaken.
Judge Andrea Steffan did not believe Fuchs. Although the court cannot present “forensic evidence” that the complaint was sent to Pilnacek, there was “so much circumstantial evidence” that supported it. This is due to the small group of people who had access that day and also to the times when the file was created and when it landed on Pilnacek’s cell phone. The chat traffic between Pilnacek and a “Kurier” editor, whom he had informed about the ad, was also decisive. In the news, the powerful official wrote that the journalist should not publish this because then it would be clear “who leaked”, quoted the judge. Pilnacek had been legally acquitted in this case. However, he did not want to testify as a witness on Wednesday because he still has disciplinary proceedings pending – although this was not a sufficient reason for the judge, she left it at that.
For Steffan, the alleged disclosure of the advertisement was likely to impair the public interest in impartial decision-making – based on media reports – and the personal interest of the “Presse” editor. After all, it’s about “her reputation as a journalist”. If it becomes known that the WKStA is filing a complaint against her, “this can lead to stigmatization,” she explained. It was a closed act and “Pilnacek was not her superior at the time,” the judge stated.
In the second count of charges, Fuchs was accused of having testified in the Ibiza investigative committee in March 2021 that he could not remember having given parts of the files to Pilnacek. Steffan didn’t believe him that he couldn’t remember, especially when it came to correspondence between Fuchs and Pilnacek, which was queried in committee, on the day the Ibiza video was published. “Ibiza” was so “unique and explosive”: “I simply don’t believe you that you no longer know that this correspondence existed,” she clarified, stating in her verdict: “One must not make false statements to protect himself from criminal prosecution.” Fuchs could have exercised his right of refusal as a person providing information.
In his closing speech, prosecutor Andreas Leo had called for a conviction as charged. He also argued with the timing on the day the ad was allegedly passed on. However, Pilnacek was “no longer responsible” at this point. Leo emphasized the good relationship between Fuchs and Pilnacek and their common “critical attitude towards the WKStA”: “This circumstance connects, welds together.” From the point of view of the public prosecutor, however, it was undisputed that an impartial decision-making process was endangered by disclosure, and Fuchs “accepted that,” he argued. In the committee of inquiry, he also knew exactly that he had to make a truthful statement.
Fuchs’ defense attorney Martin Riedl argued that there was no “forensic evidence of a transfer”. In addition, he also does not see the danger of violating the public interest, “when I look at how quickly investigation results are made public.” That happens “constantly,” said Riedl. In addition, the matter was about “possible solutions”, because the story would have been evaluated in such a way “that the judicial journalists would put on a muzzle”. That would have been a “super meltdown” for Fuchs. With regard to the U-Committee, Riedl criticized the way things were handled there: “Respondents are treated like criminals, with cynical comments and gestures,” said the lawyer. In any case, he cannot recognize the intention of making a false statement.
Riedl filed a full appeal, so the case WILL probably be tackled by the Innsbruck Higher Regional Court. The prosecutor’s office gave no explanation. Fuchs had been threatened with imprisonment for up to three years. Now a sixth of the penalty range has been exhausted.
In the Ministry of Justice, a request from the APA on the disciplinary consequences of the judgment is only briefly commented on. The decision of the Innsbruck Regional Court is not yet final and the disciplinary proceedings will only be continued at the Supreme Court (OGH) once the criminal proceedings have become final. In addition, one cannot comment on ongoing disciplinary proceedings.
Fuchs was suspended by the Ministry of Justice in March because of the allegations, but the Supreme Court lifted this in April because the suspension was “not necessary for official reasons”. The change in responsibilities within the OStA Vienna – due to which Fuchs is no longer responsible for the proceedings of the WKStA – remained intact.