The deterrent effect of the Julian Hessenthaler case: Criminal prosecution must not lead to diminished freedom of opinion

At the start of the trial against security adviser Julian Hessenthaler, who played a key role in the making of the so-called Ibiza video¹, 15 Austrian and international human rights organisations express their concern that his excessive criminal prosecution could – intentionally – have a deterring effect on future sources or whistleblowers and the exercise of freedom of opinion, freedom of the press and freedom of information. Julian Hessenthaler has been in custody since the end of 2020 (at first awaiting extradition, now awaiting trial) because of drug- and document-related charges against him. A number of experts, including from epicenter.works, as well as the renowned human rights professor Manfred Nowak have analysed the case and express considerable concerns that the investigation has been based on partially constructed accusations that have been used to discredit and apprehend Mr. Hessenthaler.

“Freedom of opinion and freedom of information are among the highest goods and form the cornerstone of every free and democratic society. They protect both the receipt and communication of information and ideas,” underlines Heinz Patzelt, Secretary General of Amnesty International Austria. He adds: “The footage of the so-called Ibiza video revealed the highly dubious attitude of former vice chancellor Heinz-Christian Strache towards the freedom of the press, the rule of law and corruption. The publication of the video, made possible by Julian Hessenthaler, initiated a discussion of great public interest and allowed the public to form an opinion about the suitability of Heinz-Christian Strache to hold public office.” Thomas Lohninger, Executive Director of epicenter.works, points out: “The sharing and publication of the video were protected under the freedom of expression – this has been established by both the Austrian² and German³ judiciary. There is thus is a strong sense that the Austrian authorities now resort to other criminal charges or at least prosecute them in an excessive manner in order to silence Julian Hessenthaler. Apparently, he is made an example of in order to deter potential future informers from expressing their opinion freely.”

Pursuit in and across all of Europe

The manner in which Julian Hessenthaler was pursued by the authorities is reminiscent of a gripping crime novel: Starting with the accusation of attempted blackmail of Heinz-Christian Strache and Johann Gudenus in connection with the Ibiza video, Julian Hessenthaler was wanted in a number of EU countries for several months. Although he was ultimately not charged with this initial offence, the order for his apprehension, the European Arrest Warrant and his pursuit across Europe were based on it.

Finding Julian H. was imperative

To this end, the following European Investigation Orders were carried out one by one⁴: access of bank accounts, searches of homes and premises, telephone surveillance using IMSI catchers, cell site analysis and retrieval of passenger name records (PNR) of flights taken by suspects or Johann Gudenus between 1 January 2017 and 17 May 2019. Other investigative measures adopted were cell site analysis⁵ in the area surrounding the office of Julian Hessenthaler’s lawyer in Berlin, confiscations of servers and searches across several borders for the vehicles used by Hessenthaler. Persons close to him were placed under physical or telephone surveillance. The clear goal was to find⁶ the maker of the Ibiza video and to have him arrested and extradited to Austria.

Authorities’ failure to act and political influence on the investigation

“Whether Julian Hessenthaler committed the document- and drug-related offences he is now charged with must be resolved in a court of law. However, the enormous intensity, the expenditure of resources and the sheer depth of the interventions used to investigate Julian Hessenthaler, who as of now is entitled to the presumption of innocence, are remarkable,” says Thomas Lohninger, Executive Director of epicenter.works. He continues: “Had the Austrian authorities shown equal zeal in examining evidence provided by the lawyer M. regarding Mr Strache’s corruption⁷ back in 2015 as they did in the investigation of Julian Hessenthaler, there would have been no need for an Ibiza video in the first place.” Heinz Patzelt, Secretary General of Amnesty International Austria, adds: “Another cause for concern that there may have been political influence is how the manpower of the task force was allocated, as confirmed by the parliamentary investigation committee: Of more than 20 task force members, seventeen were investigating Julian Hessenthaler and only three were on behalf of the anti-corruption prosecutor’s office investigating Mr Strache.⁸”

Freedom of the press and freedom of opinion are not adequately protected in Austria

The experts from the human rights organisations who are following this case agree: The particular motivation behind the pursuit of Julian Hessenthaler sends a problematic signal to all would-be sources and whistleblowers. “Those who bring too much truth to light will face criminal investigation, if necessary across international borders,” says Thomas Lohninger, Executive Director of epicenter.works. This inevitably acts as a deterrent that discourages other whistleblowers from making revelations and ultimately can limit the freedom of opinion and the press in Austria. “We have indeed been seeing repeated attempts at undermining the freedom of opinion and the press in Austria lately,” concurs Heinz Patzelt. He points to the numerous legal proceedings that are initiated against media organisations or individual journalists in order to interfere with their reporting.

EU directive on whistleblower protection

Against the backdrop of this case, the experts are now appealing to the government: The work of law enforcement agencies must be impartial and independent of political parties. The mere appearance of political influence on the work of law enforcement agencies constitutes a risk to the rule of law. Austria has until the end of 2021 to implement the EU whistleblower directive. This important project must pay special attention to the protection of whistleblowers. Following the publication of the Ibiza video, Austrian president Alexander Van der Bellen said that “this is not who we are”. But this also means: We need transparent government, independent law enforcement authorities and better protection for the individuals who expose failings and wrongdoing.

The article was first published by EDRi member epicenter.works here.

Image credit: Sueddeutsche Zeitung | Der Spiegel