Controversial reform: the glass federal prosecutor

The Austrian government has proposed a controversial reform aimed at increasing transparency within the federal public prosecutor's office, known as the Bundesstaatsanwaltschaft. The coalition submitted its draft legislation for the new body, which would serve as the top authority in the justice system, for review in late June. By August 31, stakeholders can submit their opinions on the proposal. The General Procurator’s Office has already responded, intensifying its criticism, particularly regarding the inclusion of parliament in decision-making processes. The Greens have also expressed concerns, though their support is crucial for the coalition to secure a two-thirds majority for the law. Under the proposed changes, the National Council will be responsible for electing three federal prosecutors. More significantly, the reform introduces a level of oversight previously unseen. If a prosecutor issues a directive, such as deciding to close a case instead of bringing charges, the internal deliberation process of the three-member body must be recorded. This goes further: individual prosecutors' voting behavior will be disclosed to parliament through interpellation rights and special committees. This means that the names of those who voted in specific cases could become publicly available. This marks a clear shift from the current system, where the justice minister issues directives, making the decision attributable to her personally. While she typically follows the recommendation of the advisory council, the internal assessments of each member are not shared. Both the Supreme Court and the Constitutional Court have maintained this stance, citing concerns over exposing individuals to potential pressure or attack. However, the planned transparency rules introduce a new dimension. For instance, if the federal prosecution had been in place in November 2024, the ruling party could have used parliamentary inquiries to determine which prosecutor supported or opposed granting former OVP insider Thomas Schmid the witness protection status. Nikolaus Scherak, vice club leader and constitutional expert for the Neos party, acknowledges that the provision allowing named disclosure of voting behavior “can be viewed critically.” He emphasizes, however, that ongoing investigations should remain confidential. Scherak notes that the general procurator interprets the draft differently, stating that information can only be withheld under specific confidentiality criteria. He argues that recording individual votes is essential for establishing accountability before the Constitutional Court, as prosecutors can appeal decisions there. Scherak also disputes criticisms of the commission’s composition, which selects candidates for the federal prosecution. The commission includes representatives from the highest courts, the bar association, and the notaries’ chamber, ensuring a broad range of expertise. He asserts that this structure guarantees an impartial selection process, one unmatched in Austria. He adds that the criticism of parliamentary involvement overlooks a fundamental principle of the constitution: even independent bodies require democratic legitimacy or at least some degree of parliamentary oversight. He stresses that the parliament should not be allowed to choose politically convenient candidates, while noting that the role of the parliament is to control the administration. The head of the federal prosecution is required to appear twice a year before the Justice Committee and answer parliamentary questions. Scherak calls this a balanced compromise between democratic oversight and efficient operations. He points out that nothing more than this is currently expected of a justice minister. He concludes that it is the parliament’s core responsibility to oversee the executive branch, emphasizing the importance of maintaining checks and balances within the legal framework.