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How does a former Head of Government end up on trial for evidence given in Parliament? The case of Austria’s Sebastian Kurz

17 Oct 2023
Then-Federal Chancellor Sebastian Kurz speaking in Parliament. Austrian Parliamentary Administration/Michael Buchner
Then-Federal Chancellor Sebastian Kurz speaking in Parliament. Austrian Parliamentary Administration/Michael Buchner

On 18 October Austria’s former Federal Chancellor, Sebastian Kurz, is due to go on trial accused of giving false testimony before a parliamentary investigative committee. In the UK there has been a live debate for some years about what Parliament should do if Select Committee witnesses are thought to have given false evidence. Compared to the UK, how and why are the proceedings of Austrian investigative committees more closely linked to the courts, and what challenges has this posed?

Dr Christoph Konrath, Head, Department for Research and Support in Parliamentary Matters , Austrian Parliamentary Administration
Dr Melanie Sully, Professor of Political Science
,
Head, Department for Research and Support in Parliamentary Matters , Austrian Parliamentary Administration

Dr Christoph Konrath

Dr Christoph Konrath
Head, Department for Research and Support in Parliamentary Matters , Austrian Parliamentary Administration

Dr Christoph Konrath is a political scientist and legal expert and heads the Department for Research and Support in Parliamentary Matters in the Austrian Parliamentary Administration.

,
Professor of Political Science

Dr Melanie Sully

Dr Melanie Sully
Professor of Political Science

Dr Melanie Sully is a professor of political science from Britain working in Austria, with a focus on parliaments, democracy, political parties and elections. She is a Hansard Society member. Her website is at: https://www.melanie-sully.at/www/

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Mr Kurz, of the Christian Democratic People’s Party (ÖVP), was Chancellor of Austria from 2017-2019 and again from 2020-2021. He revived the electoral fortunes of his party and formed governing coalitions with the right-wing populist Freedom Party (FPÖ) in 2017 and the centre-left Green Party in 2020.

After a corruption scandal (the so-called ‘Ibiza affair’) brought down Kurz’s first administration, the Lower House of Parliament – the National Council (Nationalrat) – established an investigative committee to look into allegations of high-level cronyism. When Mr Kurz gave evidence to the committee in June 2020, during his second term as Chancellor, he downplayed his role in making certain senior appointments. However, subsequently-published WhatsApp chats raised questions as to whether this was an accurate account, and led ultimately to a criminal investigation and the current trial. The trial is expected to last three days but further hearings are likely next year.

Mr Kurz left politics completely in December 2021 and denies all allegations that the information he gave to the parliamentary committee was incorrect.

Mr Kurz has ended up on trial because making false statements before a parliamentary investigative committee is a crime under Article 288 of the Austrian Criminal Code.

Parliamentary investigative committees are not permanent institutions but can be initiated by majority vote or, since 2014, by one-quarter of the Members of the National Council. (The Upper House, the Bundesrat, has no power to initiate investigative committees.)

The subject matter of any investigation to be conducted by such a committee has to be a specified and completed process regarding matters in which the Federal Republic is responsible for implementing the law. This includes all activities through which executive functionaries and organs of the Republic exercise rights associated with holding an economic interest.

Investigative committees cannot themselves hold anyone directly accountable. Rather, they are to gather facts which might be used as a starting point for further political activities, like a vote of confidence or legislative initiatives.

Witnesses have a legal duty to appear before an investigative committee and must give truthful evidence. Giving false testimony before such a committee can carry a three-year prison sentence.

A sitting of a parliamentary investigative committee. Austrian Parliamentary Administration/Thomas Topf
A sitting of a parliamentary investigative committee. Austrian Parliamentary Administration/Thomas Topf

The establishment and development of parliamentary investigative committees is part of the broader story of the post-War Austrian political system.

From 1945, Austria was seen as a model of a ‘consociational’ polity (or ‘consensus democracy’). Parliament kept a low profile, and the concept of scrutiny was slow to develop. The institution of investigative committees has been available since 1920, when the Federal Constitution was enacted. But such committees only tended to be set up after a scandal had led to public outrage and increased focus on parliamentary work. Overall, this feature of Austria’s political system remains dominant, even though ‘consociationalism’ has long been in decline, and in 2014 it was made easier for Parliament to establish investigative committees, by allowing them to be initiated by only a minority of Members of the National Council.

Public discourse, the media and party communications have always tended to compare the activities of an investigative committee with those of a court.

Until the mid-1990s, it was difficult to rebuff this claim, as such committees used the Criminal Procedure Code for their investigations. This led to extra pressure and work for Members: they faced high public expectations and had to apply a complex set of rules designed for judges with expert knowledge and court experience. The work of two investigative committees in the late 1980s led to public maltreatment of witnesses.

Since then, there has been a cross-party consensus on safeguarding fair procedures:

  • In 1997, specific rules for investigative committees were enacted and an independent ‘Procedural Advocate’ was introduced. Their task is to warn the chairperson of any violations of the rules of procedure or impairment of a witness’s fundamental or individual rights.

  • In 2014 the Rules of Procedure were again reformed. While a minority of Members were given greater rights to set up an investigative committee and steer its work, this went hand-in-hand with complex, detailed, procedural reforms and an expansion of legal protection for witnesses. A new official, the ‘Procedural Judge’ was introduced. Now, a retired judge or a judge released from service for the duration of the investigative committee must advise the chairperson in all procedural matters.

These developments raised awareness about the treatment of witnesses before investigative committees and the need to align parliamentary and judicial procedures.

Status of Pallas Athene, the Goddess of Wisdom, in front of the Austrian Parliament Building. Austrian Parliamentary Administration/Michael Buchner
Status of Pallas Athene, the Goddess of Wisdom, in front of the Austrian Parliament Building. Austrian Parliamentary Administration/Michael Buchner

The competence of the courts to decide in conflicts related to the proceedings of investigative committees has never been called into question.

There were some debates in 2014 on the new competences of the Constitutional Court regarding, for example, the admissibility of investigations or taking evidence.

However, the competence of the Administrative Court to impose a fine for contempt, and of the criminal courts to rule in cases of false testimony, were always accepted. The latter has a long history, predating the reforms of the 1990s and 2014. The Criminal Code never made any distinction between false testimony before a judicial court, a parliamentary investigative committee or an administrative disciplinary body.

There are two reasons for this approach:

1. The European Convention on Human Rights (ECHR) is an integral part of Austrian constitutional law and is held in high esteem. According to Article 6 of the ECHR, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of their civil rights and obligations or of any criminal charge against them. So far, the European Court of Human Rights has seen Article 6 of the ECHR as applicable to internal parliamentary penalties only insofar as these are imposed on Members of Parliament and serve the proper functioning of parliamentary business.

2. In Austria (as in Germany), the concept of parliamentary privilege is unknown. Instead, the concept of parliamentary autonomy evolved in the late 19th century when parliaments were established within the confines of what were still authoritarian states. Parliamentary autonomy did not differ much from the autonomy of other self-governing bodies established by law: it meant that Parliament could regulate its own internal affairs and its relations with its Members, but anything else would have to be regulated by law and thus fall into the domain of the courts.

The differences in the way in which parliamentary investigative committees work in Austria compared with the UK can be accounted for by the differences between the two countries’ political cultures and historical development. The Austrian system is very much rule-based and has been shaped by a slower development of parliamentary scrutiny. Parliament has had a closer relationship with the courts than in the UK, where Parliament jealously guards its sovereignty.

Konrath, C. and Sully, M. (17 October 2023), How does a former Head of Government end up on trial for evidence given in Parliament? The case of Austria’s Sebastian Kurz (Hansard Society blog)

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