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Mag. Dr. Johannes MARTETSCHLÄGER

Senior Public Prosecutor - Legal Adviser

Federal Ministry of Justice of the Republic of Austria

Department IV 4

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Report on the
Regional Meeting of the European Judicial Network (EJN) organised by the Austrian Contact Points in Seggauberg/Austria
from October 10th to 12th, 2012

The Austrian Contact Points convened a Regional Meeting of the European Judicial Network (EJN) in Seggauberg (Province of Styria) from October 10th to 12th, 2012. The overall title of the meeting was "Crossing Borders".

After welcoming speeches by Dr. Karl GASSER, Head of the locally competent Higher Prosecution Service of Graz, Dr. Ulrich LEITNER, Vice-President of the Graz Court of Appeal and Mag. Werner ZINGL. President of the Austrian Federation of Judges, who all underlined the importance of networks for the proper development of a good transborder cooperation both in civil and criminal matters Gabriele SCHMELZER, Professor for Criminology and Criminal Law at the Karf-Franzens-Unversity Graz, gave a presentation under the title "The Internet - a Global Network and the Framework of Criminal Law". She gave a criminological analysis of the phenomenon called "cybercrime" under its various aspects and pointed out that today´s developments within the internet are to be characterised by a great transfer of personal data, which enables criminals to attack persons in their privacy and cause ecomomical damages to them. This transfer of personal data results from greater economical activities within the internet and overboarding use of social platforms and networks spontaneously making private and personal data accessible to a greater public. Statistics for Germany show that in the year 2010 almost 55.000 criminal complaints were registered based on cyber criminality which means 1,4 % of the overall criminal complaints. The rate of successful investigations of such crimes is only 3,5 %. For Austria reliable statistics in this regard are not available - the statistics of convictions in Austria show that in 2011 only 80 persons were convicted of cyber based fraud (Sec 148a of the Austrian Criminal Code).

From the prospective of the criminal law the following problems can be identified:

fragmentary solutions concerning forms of cyber crime description in the Criminal Code

lack of priortising by the legislator

late legislative reactions to new forms of cyber criminality

unsufficient instruments of law enforcement and investigation in the field (especially in the investigative phase of the proceedings)

Several fundamental questions are left open in the field of cyber criminology:

Which is the object to be safeguarded by the criminal law in that field?

Which phenomena need a criminal law based reaction taking into account both the damage caused to society and the principle of proportionality?

What is the role of the victim in the field of cyber criminality?

With regard to the new legislative developments SCHMELZER highlighted two newly introduced crimes to the Austrian Criminal Code by January 1st, 2012. The first one is "Grooming" (Trying to make personal contact with a minor person through the internet - Sec 208a Austrian Criminal Code), the second one is presentation or incitation of sexual acts via the internet towards a minor person (Sec 215 a para 2a Austrian Criminal Code). Both crimes require a high standard of proof so the future will show whether convictions can be achieved in practice.

Mag. Dr. Johannes MARTETSCHLÄGER gave an overwiev on new legal developments within the Austrian Federal Law on Cooperation in Criminal Matters with the Member States of the EU. By January 1st, 2012 Austria implemented the Framework Decision on Custodial Sentences, the Framework Decision on Proceedings in Absentia and altered the Austrian legislation in connection with the applicable law on cases of an EAW falling under the Austrian declaration to Art 32 of the Framework Decision on the EAW. In the latter case the applicable law is now in conformity with the jurisprudence of the ECJ.

The FD on custodial sentences has been introduced into the Austrian legislation by setting up the Regional Courts as competent authorities for the execution whereas for the issuing of the certificate a central solution has been chosen. The Federal Ministry of Justice is sending out the certificates after collecting the necessary documents through the internal judicial IT-application and a report by the penitentiary including the statement of the person concerned. First experiences have been made especially with SK where the first prisoners have already been transferred on the basis of the new legislation. Unfortunately the number of MS having implemented the FD is rather limited so the practical application is still not very widely spread.

Christiane CLAßEN, EJN-Contact Point in Munich/Germany, gave a report on the German implementation of the EUROJUST and EJN-Decisions which had been recently adopted. On June 7th, 2012 the act has come into force (Germal Federal Law Gazette I 2012 Nr. 26). By the modifications of the German EUROJUST Act the National Member´s powers are now following the EUROJUST Decision. The local prosecutors are now obliged to inform EUROJUST of the cases falling under the criteria of Art 13 of the EUROJUST Decision. The flow of information goes through the EUROJUST Correspondents (who are at the same time EJN Contact Points) or the Federal Office of Justice Bonn.

On the second day of the meeting the COBRA, a specialised Anti-Terror Unit of the Austrian police forces gave an overview on its functions and its history. The unit provides special assistance in urgent and difficult threats and dangerous situations. During the visit to the COBRA the members of the meeting had the possibility to watch special forms of interventions of the unit, including drugs search with policedogs, stopping of criminals on the street by car, entering buildings through windows. Finally the group of participants was kept as hostages and took part in a rescue situation by the special police unit.

The second half of the day a visit to the neighbouring transborder judicial authorities of Slovenia in Maribor took place. The local slovenian Contact Point of the EJN welcomed the participants and took them to the District Prosecution Service. The head of the authority pointed out that the Slovenian prosecution service is independent and follows the priniciple of mandatory prosecution. The international cooperation with the neighbouring countries is good, direct contacts are the rule.

At the Regional Court of Maribor the President of the Court welcomed the participants as well and on her behalf a trainee judge explained the competences and the degrees of Courts under the Slovenian Criminal Procedure.

In a guided tour through the city which is the Cultural Capital of Europe in 2012 the participants got an impression of the historical heritage of the border city.

On the third day of the meeting Christian GUTSCH, Prosecutor at the Klagenfurt Prosecution Service, explained the Austrian procedure of extradition and surrender according to the FD on the EAW. He highlighted that the decisions on the admissibility of extradition and on the surrender are taken by the Courts. He pointed out that the surrender of own nationals is in fact possible only under extraordinary circumstances of the case due to the fact of mandatory prosecution of any crime committed by an Austrian citizen even abroad.

Ingrid MASCHL-CLAUSEN (Austrian National Member at EUROJUST) told about the steps taken at EUROJUST with a view to the implementation of the EUROJUST Decision and the priorities of the 6th Round of Mutual Evaluations dealing with the same subject. With regard to the cooperation with OLAF a legal basis has been established four years ago. Statistics show that more cases coming from EUROJUST involve OLAF than the other way around.

At the end of the meeting the participants summarized its usefulness for a deeper knowlegde of the judicial systems of the countries involved and for the fostering of a proper cooperation within the EJN. Therefore the participants unanimously asked the Austrian Contact Points to write a letter to the EJN Secretariat pointing out the necessity to continue the co-financing of Regional EJN meetings and keeping up the number of Plenary meetings in order to build up and strengthen the Network.

The German EJN-Contact Points invited to their national meeting which shall take place in Berlin on May 13th/14th, 2013.

At the end of the meeting two former Austrian CP, Wolfgang PILZ and Peter SEDA, were invited to give an overview of their experience when working with the Network. They stressed the fact that informal and direct contacts were the main added-value achieved by the EJN ever since its creation.

October 12th, 2012

Mag.Dr.Johannes Martetschläger