Selection of judges
Manipulation? Suspicion at the Federal Administrative Court
The public prosecutor's office is currently investigating the serious allegation that the former president and vice-president may have had a hand in the assignment of new cases to judges of their own court.
Christian Filzwieser, the new President of the Federal Administrative Court (BVwG), took up a difficult legacy in February. In an obvious construction site of the judiciary. According to "Krone" research, the public prosecutor's office is currently investigating allegations that former President Harald Perl and Vice President Michael Sachs may have manipulated the allocation of new cases to judges of their own court. This is in connection with proceedings in which the two executives were involved. Both gentlemen have excellent political connections: Vice President Sachs recently applied for the Directorate General of the Federal Competition Authority. Even in retirement, former President Perl sits on a particularly important committee: the Procurement Commission of the Ministry of Defense. There he is supposed to help prevent corruption.
The background
A judge at the Federal Administrative Court (name known to the editor), who had already filed a criminal complaint in a corruption case in 2019 and thus incurred the wrath of the two presidents, came across suspicious processes in a file again in 2023. The emails contained therein fuel suspicions that the assignment of new cases to the responsible judges had been manipulated.
Just to clarify: the so-called allocation of cases is of central importance for a court because it determines in advance which judge will receive which case for decision in the future. Nobody, not even the Ministry of Justice led by Alma Zadic, should be able to influence the selection of judges. In a constitutional state, this is the central pillar of an independent judiciary.
Interference is prohibited
At the Federal Administrative Court, too, new cases must be recorded immediately by the registry in the order in which they are received ("allocation wheel") and assigned to the responsible judges via an electronic file distribution system. No president, vice president or minister is allowed to intervene in this system.
And what happened at the Federal Administrative Court in 2022 and 2023? According to documents available to the "Krone", new cases were not immediately assigned to the responsible judges by the Registry, but were sent by the Registry to the "President's Office" by email as a first step.
In a second step, the "Office of the President" forwarded the new case internally to the personal email address of Vice President Sachs, among others, as the following excerpt from an email dated March 27, 2023 shows:
Delay of up to 6.5 hours
It was only in a third step - and with a delay of up to six and a half hours - that the cases that should have been assigned immediately were returned to the registry. Only then were they assigned to the judges. However, to judges who would not have been responsible because the prescribed order ("allocation wheel") was not adhered to due to the time delay. The serious suspicion now is that there was a deliberate deviation from the chronological order when registering new cases so that former President Perl and Vice President Sachs could choose their "preferred judges", from whom they apparently hoped to obtain more favorable decisions.
Michael Sachs, who continues to serve as Vice President, has refused to comment on the allegations in recent days - despite several attempts. Former President Perl, who retired at the end of 2022, also left an inquiry unanswered. The Federal Administrative Court itself only made a general statement and referred to the high number of business documents (80,000) that are logged in the office each year.
It also states: "The allocation of cases is decided in advance for the financial year. All allocation groups and their court divisions are entered into the electronic case administration system. Based on this, incoming complaints are assigned to the court divisions. If legal questions arise, the office is supported by lawyers from the President's Office."
And why has the Ministry of Justice done nothing so far to clear up the allegations and safeguard the independence of the judiciary? A spokesperson for Alma Zadic explained in response to an inquiry: "The Ministry of Justice became aware of the allegations through the inquiry. The Ministry is already in contact with the Federal Administrative Court in order to clarify the matter quickly."
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