Judge bias

“This is otherwise only found in Russia”

Following the false testimony trial against former chancellor Sebastian Kurz (ÖVP), former ministers and lawyers are calling for judges not to decide on their own whether they are biased.

The wave of outrage surrounding the possible bias of judge Michael Radasztics in the Kurz trial could be prevented in future. This would require an amendment to the law. The problem: in Austria, criminal judges decide on bias motions against themselves. "Apart from Austria, only in Russia are judges in Europe allowed to decide on so-called substantiated recusal motions themselves," criticizes former Minister of Justice and lawyer Dieter Böhmdorfer.

Grasser appeals to the Court of Human Rights
"This procedure is really not ideal", analyzes Gerhard Jarosch, former public prosecutor, and explains further: "The legislator has chosen this path in order not to prolong trials. If a motion to disqualify a judge is decided by the Higher Regional Court, for example, the trial must be interrupted," says Jarosch. Not only former Chancellor Kurz, but also former Finance Minister Karl-Heinz Grasser is aware of the plight. The latter wants to overturn the law at the European Court of Human Rights and has filed a complaint there.

Grasser was confronted twice with possible bias in his proceedings surrounding the Buwog scandal. The husband of judge Marion Hohenecker wished Grasser imminent imprisonment and harassment by sex offender Josef Fritzl on social media.

Disciplinary sanction against Grasser judge's husband
Hohenecker's husband is a judge himself and received a very severe disciplinary penalty for the remarks. The judge herself did not suspect any bias simply because her husband had publicly expressed his aversion to Grasser. There is also said to be an appearance of bias on the part of the referent at the Constitutional Court who dealt with Grasser's complaint.

Top lawyer Norbert Wess is therefore also calling for a change in case law. "A judge who is - at best - biased can hardly decide subjectively about his own objective appearance of bias. Interestingly, this is also regulated differently in civil law. Just not in criminal law."