Vergewaltigungsprozess in Niederösterreich: Angeklagte Asylwerber überraschend freigesprochen! https://t.co/M5j1X3IPO7
— heute.at (@Heute_at) 27 maart 2018
In May, The Old Continent reported the story of a 15-year-old girl, Lisi S., claiming to have become the victim of a gang-rape, causing much unrest in the Austrian city of Tuln. One of the complaints at the time, was the secrecy with which the police was handling the case, which caused worries about women’s safety. On 27 March, after the end of the court case, those worries cannot be over.
Firstly, because despite the police’s reticence to publish the case, in order to catch the third suspect, he hasn’t been caught. Secondly, because of the outcome of the court case. The court found the suspects ‘not guilty’, because of lack of evidence, but the Public Prosecutor has called for the verdict to be nullified. The Austrian Supreme Court now has to decide if it will condone the decision and arrange for a retrial, or uphold the verdict. An outcome that can please no-one.
Let’s recapitulate the case. The two suspects, one Somalian and one Afghan asylum seeker, together with their unknown third accomplice, were suspected of having followed, on 25 April 2017, the victim as she went from the trainstation to her father. According to the Prosecutor, the three overtook the girl, after which the Somalian suspect hit her in the face with his fist and dragged her onto a sports field. There, the Somalian and the unknown suspect are said to have raped her. The victim broke free, was overtaken again, and then raped by the Afghan. Afterwards, the girl made her why home, and from there was brought to hospital.
As Austrian newspaper Kurier puts it, even the Public Prosecutor said she thought it was an “adventure story” when she was informed by the police on 26 April 2017. But a year, and the country’s largest DNA-mass-test later, Barbara Kirchner is convinced:
“[the girl] is telling the truth.“
Both suspect tell a different story. Both 19-year-olds admit to having had sex with the 15-year-old girl, but say it was consensual. Just before, they even shared some marihuana with her. Doubts about the girl’s story were echoed by their defence counsels, who indicated they doubted the victim’s statement. She is said to have given multiple accounts of what had happened, and was under the influence of a “cocktail of medication“. Moreover, she suffers from a mental illness. To counter this, defence counsel for the victim (Opfervertreter) Ewald Stadler, introduced a credibility report, that shows that there are no indications that the 15-year-old lied.
What is clear, is that what happened, “certainly didn’t happen like it says in the indictment,” according to the presiding judge. Instead, the court (arranged according to the so-called ‘Schöffensenat’ method) found that there was first a “more or less friendly meeting” between the three or four involved, which involved a joint.
As proof, the judge cited testimony by a witness, which indicates that the 15-year-old bought the drugs. In view of this testimony, it seems more likely that the two 19-year-olds were given the drugs by the girl, as they claim. The judge said that the Public Prosecutor did her utmost to solve the crime, and that the court
“was very well aware of the extreme contradictions in the testimony of the accused.“
The wounds found on the victim – scratch marks on her back, on knees and thighs, as well as a red marks on her chin – would seem to indicate that things played out as in the indictment. But the court found that the possibility that they are the result of voluntary interaction can’t be excluded. The court did not think it proof of what Kurier calls
“a subjective recognition by the defendants, that they had to overcome the resistance of the 15-year-old (…)“
The court decided to attach more importance to the fact that, in the five times she was questioned, the girl was inconsistent. There were some doubts as to the ending of what has happened, whether or not there were two or three men. One question was, how the men came in the possession of the girl’s phone number. When asked, the girl said that she had dropped her phone. When it came to passing judgement, the court was stalemated. Two found the accused guilty, two not guilty. The Public Prosecutor answered with a plea of nullity. That means the verdict is not legally binding.
According to the Österreich newspaper, this doesn’t change the fact that both accused should be in jail. From a “confidential source” the paper has learned that the Somalian only has a subsidiary right to asylum, and is suspected of multiple other sexual assaults. The Afghan is said to be a ‘Dublin case’, in other words, asked for asylum in another EU country and shouldn’t have been in Austria in the first place.
Meanwhile, because of the nullification, the case will have to be taken up by the Oberste Gerichtshof (supreme court), which has to decide if it agrees with the Public Prosecutor. As Ewald Stadler, Lisi’s defence counsel explains, if they do
“A new hearing of the case will be possible, with a differently composed Schöffensenat.“