Law Professor Petra Velten’s strong Criticism of Court Decision to proceed with Retrial

The retrial of five of the original defendants from the first trial is based on the charge of criminal coercion. As with the attempt to use an anti-Mafia law in the first trial, this charge is another example of laws, intended to tackle illegal personal financial gain, being inappropriately used against people who are zero interested in personal financial gain.

University law professor and head of department for criminal law at the Johannes Kepler University Linz, Dr Petra Velten, recently responded with a report strongly criticising the court’s decision. The following is a short summary of her main points.

 

Professor Velten’s expert report on the court’s decision to proceed with the trial makes the point that when trying someone for criminal coercion their intention or long-term aim must be taken into account. In this case activists’ intention or long-term aim is the principle of animal protection, a principle happily now firmly anchored in the Austrian constitution. The court that has allowed the case however, sees the activist’s campaign as solely having the aim of preventing the company from selling fur rather than the larger goal of achieving protection for animals. Velten refers to this as an ‘interpretation trick’ on the part of the court. Velten demonstrates her point with the example of someone stranded overnight in the mountains breaking in to a mountain cabin in order to survive the night. For assessing the lawfulness of this action a verdict must consider the person’s intention, which, in this example, is clearly one of survival. It would be wrong to assess the lawfulness of this situation based only on the information that the person broke into the cabin.

 

The court’s decision to uphold the retrial also includes the argument that acts of coercion are only to be considered acceptable if a person is driven to these measures in order to protect or achieve something that he or she has a legal right to. As campaigners have no legal right to prohibiting the sale of fur, their actions demanding this are therefore illegal. Taken seriously, this would lead to a wide range of social interactions being illegal, from employees going on strike as part of their demand for higher wages, or voters petitioning an electoral candidate to exclude anti-foreigner parts of their manifesto to a dentist refusing to treat his or her patient unless they clean their teeth regularly. In none of these cases do the the demanding parties have any legal right to what they are demanding.

 

Velten states that a correct interpretation of the law concerning coercion is one based on the ‘principle of related actions’ which means that, given that it is legal to hold demonstrations, the act of announcing a demonstration cannot be interpreted as being illegal.

 

The prosecution claims that the company Kleider Bauer has suffered financial loss through the anti-fur campaign. It is interesting to consider who is to be seen as responsible for this alleged financial loss. Is it the activists seeking to influence the customers or is it the customers who actually boycott the store? And in any case, lost opportunities to sell fur cannot be considered financial loss as the company was at no time in possession of the earnings from those potential sales.

 

Velten’s report ends with the observation that in order to find someone guilty of coercion it must be established that they have offended public moral decency (Sittenwidrigkeit). This vague description contravenes Article 2 of the constitution which states that laws must be written in such a way that members of the public are able to clearly interpret what is and is not allowed.

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