Image: FOTOKERSCHI.AT / KERSCHBAUMMAYR
The officer had reported a woman, accusing her of yelling at him during an official act and explaining to him that she “didn’t think that there were such stupid and incompetent police officers running around in Austria”.
The official was given a conditional sentence of six months by the Regional Criminal Court for abuse of office for the incorrect logging and the resulting knowing abuse of power. With his nullity appeal directed against it, he was now rebuffed at the Supreme Court, so the judgment is final. The police officer’s argument that the matter could have been settled diversionally in his favor – i.e. without a criminal conviction – is not justified, is recorded in the OGH decision (reference number 14 Os 63/23f).
The police operation – it was about a dispute between the woman who was reported later and her husband, who finally called the police – was accidentally recorded with a smartphone by an acquaintance of the woman who was present at the official act. When the woman received a complaint about alleged breaches of decency and undue noise and subsequently received a penalty order of 200 euros, she was able to use the audio recording to prove that she had not been abusive at all. The fine imposed on her subsequently became invalid as a result of an objection by the woman – but she had to bear the defense lawyer’s costs of at least 2,571 euros incurred in the administrative criminal proceedings.
In this respect, there could be no question of minor or otherwise insignificant damage, the Supreme Court decided and dismissed the police officer’s appeal. An “atypically low level of guilt” required for a diversion is not present, the police officer is instead responsible for filing an untruthful report of two administrative offenses five days after the official act. Likewise, “an assumption of responsibility by the complainant, based on a sense of wrongdoing, as a further precondition for diversion cannot be assumed, since he did not even admit to the objective factual events and claimed to the last that he was convinced of the correctness of his minutes at the time the advertisement was written,” the Supreme Court held firmly.
During his trial at the regional court, the police officer claimed that he had written the complaint using a notebook that had since been thrown away. At the time, he was sure that he had heard the insulting sentence: “What do I get out of writing a false ad other than more work?” The woman was basically very aggressive, screamed and kept interrupting him and his two colleagues.
The audio recording of the entire operation that was presented to the court and played during the first-instance hearing documented a very emotional conversation between the woman and the police. However, the words “I didn’t think there were such stupid and incompetent police officers running around in Austria” were not heard – in contrast to rather inappropriate and condescending statements by the officer.
Source: Nachrichten
