Acquittal for Former Justice Minister Brandstetter in Perjury Trial

Ex-Minister of Justice Brandstetter was accused of falsely claiming in the parliamentary committee on March 31, 2022, that he could not hand over his phone on February 25, 2021, because it was at home. On that day, his phone was supposed to be secured at the Constitutional Court, where he was a judge. Later, phone data showed that the device was in his office at the Constitutional Court on that day. The Innsbruck public prosecutor's office therefore accused him of intentional false testimony.

Trial for False Testimony: Ex-Minister of Justice Brandstetter "Believed His Statement to Be Correct Until the End"

The responsible prosecutor, who traveled from Innsbruck, remained until the end of the main hearing. The order for securing was handed over to Brandstetter at 12:50 PM. He referred to the intervening officers that his private phone was at home, but demonstrably communicated with it at 2:32 PM without informing the law enforcement authorities of his alleged mistake. Only days later was the phone handed over by Brandstetter's lawyer to an expert - and not to the public prosecutor's office - "with a limited mandate." The expert was only asked to clarify any communication between Brandstetter and the then head of section in the Ministry of Justice, Christian Pilnacek, as well as the entrepreneur Michael Tojner, the prosecutor explained. What other communication was stored on the phone is unknown.

Brandstetter, who is now retired and did not want to answer the judge's question about his pension entitlement and assets, vehemently denied having intentionally given false testimony. "I believed my statement to be correct until the end," Brandstetter insisted in his closing words. Moreover, he would have had no reason to lie, as he was "almost retired" at the time of the parliamentary committee questioning and no longer held his position as a judge at the Constitutional Court, emphasized the ex-Minister of Justice moments before the acquittal.

Regarding the handover of the securing order at the Constitutional Court, Brandstetter claimed that at the relevant time, due to his health problems and a serious traffic accident he had suffered a few weeks earlier, he had a "slight cognitive disorder." This caused memory gaps. That a prosecutor and a police officer appeared before him at the Constitutional Court - at that time Brandstetter was being investigated for abuse of office, suspected of having leaked a house search to Tojner - "was a trauma for me." The whole thing was "a chaotic action," he was "stunned": "I was so dismayed and could not think clearly."

Therefore, he did not remember that he had taken his private phone from his residence in the Waldviertel to Vienna. Two hours after the conversation with the prosecutor at the Constitutional Court, he remembered. He then immediately called his lawyer and subsequently "proactively initiated" the handover of the phone. No changes were made to the phone.

Defense Lawyer: Ex-Minister of Justice Brandstetter "Was Convinced He Was Telling the Truth"

Regarding his statement in the committee, the defendant noted that he had pneumonia at the time and was under the influence of antibiotics. Nevertheless, he "absolutely wanted to make this statement. Excusing myself with medical certificates, that doesn't look good." He was "definitely sick" that day: "I had breathing problems. You can't fully concentrate, I'm sorry."

Brandstetter's defense lawyer Georg Krakow had already emphasized at the beginning of the trial that Brandstetter was in poor health during the questioning in the parliamentary committee. He had "two pulmonary embolisms" behind him and "breathing problems in closed spaces." That the year before, Brandstetter's notebook was secured by a prosecutor and a police officer at the Constitutional Court during the investigation against the ex-Minister of Justice and that his official and private phone was searched for, had "exposed" Brandstetter at the Constitutional Court and subsequently burdened him, said Krakow. As a result of all this, his client had "memory problems" during his questioning in the parliamentary committee - according to Krakow "a political tribunal" - "He was convinced he was telling the truth."

"Memory does not work like rewinding a film reel," Krakow noted. Memory is sometimes "inaccurate," "mixed," and "not always correct. This happens to all of us. Let anyone who is without error cast the first stone."

Psychiatrist: "Memory is not a burned DVD"

Crucial for the acquittal were the statements of the court-appointed psychiatric expert Peter Hofmann. "Memory is not a burned DVD that records what happened back then," said the experienced court expert in his introduction. Brandstetter found himself in a "medically vital exceptional situation" during the attempted mobile phone seizure and yet attended a VfGH session on February 25, 2021, which Hofmann called "incomprehensible." According to Hofmann, Brandstetter's condition at the time was "suitable to cause severe psychological stress and impair his memory performance." The "medical basis for a memory impairment, where he says things out of conviction that do not correspond to reality," was present.

However, his report was "not a credibility test," the expert noted. Memory impairments are "not provable." The question of credibility is a matter of evidence assessment and thus a task for the court.

Report "plausible" for judge

The judge based his decision primarily on Hofmann's statements, which he described as "plausible." The former Minister of Justice and VfGH judge was therefore acquitted, although the incriminated statement in the U-Committee was "objectively false" for the judge. As further evidence against a deliberate false statement, the judge considered the total four-hour questioning of Brandstetter in the U-Committee and the fact that no manipulations were found on his private mobile phone between the attempted execution of the seizure order at the VfGH and the handover of the phone a few days later.

The ÖVP, which had sent Brandstetter as Minister of Justice to Werner Faymann's (SPÖ) cabinet in 2013, expressed delight over the acquittal. When the then ÖVP chairman Reinhold Mitterlehner stepped down, Brandstetter served as Vice Chancellor from May to October 2017. Under Chancellor Sebastian Kurz (ÖVP), there was no longer a place for Brandstetter on the government bench.

"The acquittal of former Minister of Justice Brandstetter is another defeat for the political instrumentalization of U-Committees and thus also the next embarrassment for all those who have set out to turn investigation committees from an important instrument of parliamentary clarification into a political inquisition court," ÖVP Secretary General Nico Marchetti stated in a press release. He demanded "an honest apology from all those who falsely accused former Minister Brandstetter of intentional false testimony."

(APA/Red)

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