FECL 41 (February 1996):

BILL AGAINST ORGANISED CRIME PROVIDES FOR EXTENSIVE BUGGING

A bill on the fight against organised crime prepared by the Austrian Interior and Justice Ministries provides for the extensive use of electronic surveillance, computerised "search by screening", and the protection of police under-cover agents and other witnesses. Opponents of the bill fear it will open the way for extensive surveillance of innocent people. The bill is expected to be adopted by Parliament in March.

 

Just as in Germany, police and prosecution authorities in Austria have long been calling for the legalisation of the so-called grosser Lauschangriff ("major eavesdropping-attack"). This is the catchword describing the use by the police of "bugs" and other audio- and video-surveillance equipment inside private locals and rooms (see FECL No.40: "Justice Minister resigns in protest against bugging"; No.28: "New law on 'fight against against crime': intelligence service to cooperate with police"; No.20, pp.1-4).

In principle, private rooms are protected against state infringement by the constitutional guarantee of privacy. If adopted, the new bill will establish drastic exceptions to this rule. The use of surveillance equipment without the knowledge of the people concerned shall be permitted in three cases:

  1. In cases involving kidnapping and deprivation of liberty (e.g. a bank robber taking hostages).
  2. For the purpose of solving "simple" crimes, i.e. offences punishable by a maximum of more than 3 years imprisonment, on condition that a person aware of the surveillance measure (i.e. an informer or an under-cover policeman) is also present in the room under surveillance;
  3. For the purposes of combating particularly serious crimes (crimes punishable by a maximum of more than 10 years imprisonment) or "organised crime". Under this central provision of the bill, electronic surveillance shall be permitted in particular in presence of "well-grounded suspicion" of the creation, membership of, or the participation in a criminal organisation and may be resorted to even in investigating planned offences and petty crimes imputed to a criminal organisation. The police are expressly allowed to break in a private home secretly with - as such - unlawful means in order to install surveillance equipment. The presence of a person aware of the bugging on the site is not required and even completely innocent people may be subjected to this most drastic form of surveillance, if there are "reasons to believe" that a suspect might approach them.

The admissibility of the latter "major eavesdropping" is seemingly limited in so far as it requires the "probability" of a "serious threat against public security". But instead of clearly defining the scope of this term, the provision merely lists a number of examples of activities considered as serious security threats, including ... suspected involvement in a criminal organisation.

Secret video (but not audio) surveillance of "semi-public" locations, i.e. private premises accessible by the public at certain times, is also to be allowed. Besides restaurants, business and meeting places the proposal also names restaurants and waiting rooms in doctors' surgeries (!) as examples. This restricted form of video-surveillance may be resorted to without the approval or information of the owner of the premises, even for investigating petty offences.

In principle an eavesdropping operation must be approved in advance by a Chamber made of three judges. But many magistrates are doubtful regarding the effectiveness of this control. As a matter of fact, in assessing whether a suspicion is grounded, judges are entirely dependent on the account given by the police. As a rule, the veracity of this information can only be established once a surveillance measure has been carried out. Before, only its plausibility can be assessed.

It is noteworthy, that in cases involving "most serious crimes" according to Austrian legislation (especially, murder and resumption of nazi activities) or in any other cases, on condition that a person aware of the operation is present in the room, even editorial staff rooms of mass media may be subjected to surveillance.

Immunity from surveillance is granted only to conversations subjected to professional secrecy (doctors, lawyers, priests).

 

Search by screening

The term Rasterfahndung ("search by screening") stands for the automated and comprehensive matching of personal data registered in electronic databases according to certain searched for characteristics. For example, a set of known features of an unidentified criminal is matched with all personal data in one or more data registers in order to find persons whose features match with those of the criminal.

According to the bill, computerised search by screening shall be allowed if there is suspicion of serious crimes (more than 10 years imprisonment) or organised crime. Police shall have access to all data registers run by the state, including, for example, the registers of the Social Security. Here too, the authorization of a Chamber made of three judges is required. But according to the vice-president of Österreichische Richtervereinigung, the Austrian association of judges, Wolfgang Jedlicka, effective judicial control is almost inconceivable, as far as the later use of the data collected by the police is concerned. The data protection commissioner shall have a right of appeal against screening operations, but his appeal has no suspensive effect.

The Interior Ministry has vehemently demanded the inclusion of private computerised registers. This would, for instance, imply the obligation for newspapers to hand out their list of subscribers. So far, the Interior Ministry has, however, not got its way.

Certain aspects of the bill might still be changed as a result of its discussion in Parliament. A change for the better is, however improbable, considering the fact that the bill in its present form has drawn criticism only from a small circle of legal experts and practitioners. The president of the Austrian association of judges, Josef Klingler, put it as follows: "If one considers the prevention of crime to be so important that one is prepared to put up even with massive encroachments on fundamental rights, this is a political decision, whether we want it or not".

For the great majority of Austrians, this political decision appears to be a non-issue.

Thomas Sperlich

 

Sources: Proposal of the Federal Ministries of Justice and the Interior for a law on the fight against organised crime; Österreichische Richterzeitung, 1/96; Salzburger Nachrichten, 4.1.96. For more information contact: Thomas Sperlich, Zeitschrift Juridikum, Bergsteiggasse 43/16, A-1170 Vienna; Tel: +43/1 4089019, Fax: +43/1 4088985.