Matthias Monroy

How investigators from Austria overstretched European mutual legal assistance

Last week, the German magazine Correctiv published the first interview conducted by Julian Hessenthaler in freedom. The private investigator is believed by authorities from Austria – so far without proof or conviction – to be the producer of the so-called Ibiza video. In 2019, the „Süddeutsche Zeitung“ and the „Spiegel“ published secretly recorded footage showing the then Vice-Chancellor Heinz-Christian Strache and a close confidant meeting with an alleged Russian oligarch’s niece in Ibiza. Because the politician promised favours in return for money and wanted to use media companies for this purpose, he had to resign. The government coalition of the ÖVP and the FPÖ also broke up over the corruption affair.

Hessenthaler was arrested in Berlin, and his extradition to Austria was also decided under a Green-led justice ministry in the German capital. This is possible through agreements on mutual legal assistance at EU level. The sharpest sword of this cross-border assistance is the European Investigation Order (EIO), with which the authority of one country („issuing state“) can demand measures from another EU member („executing state“). In the „Ibiza“ case, this legal framework was overstretched, if not abused, by the special commission (Soko) „Tape“, which was founded especially for the „Ibiza affair“. This emerges from judicial files which are available to „nd“. The surveillance methods used by the police nowadays also become clear.

The „Tape“ task force from Austria did not only investigate Hessenthaler. The focus was also on the alleged oligarch’s niece, who had introduced herself as „Alyona Makarov“, as well as other helpers. For their investigation, the authorities initially used the usual inventory: Interrogation of witnesses, public search with facial image, comparison of DNA traces, search in the surroundings of the suspects, queries at hotels and in number plate recognition systems such as at Vienna airport. Further warrants were issued to investigate bank transactions of the accused and suspects via the account register, and orders to hand over personal data were also issued to payment service providers such as Moneygram and Western Union.

The investigators initially searched unsuccessfully for the photographs of „Makarov“ in domestic databases with the help of a „face field recognition system“ of the Federal Criminal Police Office (BKA) in Austria. A further request for a comparison was sent via the BKA liaison office to the police agency Europol. Via Interpol, such a request was also made to the police in Russia, Ukraine, Belarus and several Balkan states, all without success. According to the files, „a connection to the Baltic states could be determined from the telephones used by the alleged oligarch’s niece“, so further enquiries were also made to the police in Estonia, Latvia and Lithuania. Everywhere, however, there were „negative responses“.

As is known, the „Tape“ task force was more successful in the Hessenthaler case, who was also monitored in Germany as the „suspected mastermind behind the Ibiza video“. However, the production and distribution of a revealing video like the one in the „Ibiza affair“ is not punishable under German law. This had been confirmed in an assessment by the Attorney General in Hamburg and the desired surveillance in Germany on the basis of an EIO had therefore been rejected. However, the investigators from Austria helped themselves with a trick: Hessenthaler was also wanted for a fabricated accusation of extortion as well as commercial trafficking in cocaine, and for this the European Investigation Order applies. Without these two charges, it would not have been possible for the authorities to take action in other European countries, Hessenthaler had stated in a parliamentary enquiry committee in Austria on the „Ibiza affair“.

The Vienna Public Prosecutor’s Office, for example, sent an EIO for the surveillance of Hessenthaler’s telecommunications to the Chief Public Prosecutor in Munich. This cross-border order was rejected with regard to the production and distribution of the Ibiza video, but granted with regard to „extortion“ and „drug trafficking“. The „Tape“ task force then received traffic and location data on telephones that Hessenthaler was said to have used in Germany via the Bavarian State Criminal Police Office. The transfer of the content data of the telephone communication was carried out directly, according to an order published by the Viennese civil rights organisation epicenter.works.

However, Austrian investigators did not know which German telephone numbers Hessenthaler had used at all. Therefore, the Vienna public prosecutor’s office issued additional orders for radio cell evaluation in Germany on behalf of the BKA there. In this way, the mobile phones registered with a radio mast in a certain area can be determined retrospectively; in the process, hundreds of thousands of other devices belonging to uninvolved persons presumably fell into the authorities‘ drag net. In real time, such a detection of nearby phones is also possible with the help of so-called IMSI catchers, for which, according to the investigation files, EIOs were also sent to German authorities.

Rental cars that Hessenthaler is said to have used in Germany were monitored with the help of radio cell analysis as well. For this purpose, authorities follow the traces of SIM cards installed in the vehicles, via which customers use navigation and internet services as well as emergency systems, for example. Among other things, Hessenthaler is said to have rented a BMW from Sixt and to have driven it in Austria, Switzerland and Germany. By analysing the SIM card of this vehicle, the investigators were able to create a subsequent movement profile.

If the IMSI and IMEI device numbers of the vehicles are known to the authorities, these can even be traced in real time via location tracking. However, the investigators from Austria initially only knew the registration number of the vehicle. For this reason, the Vienna public prosecutor’s office wanted to obtain the „interrogation of an informed representative of BMW AG“ via an additional EIO and has demanded „immediate implementation“ for this purpose. A letter in the investigation files shows that the „Vehicle Crime“ department of BMW eventually released the telecom SIM data of the vehicle by mail to the Austrian BKA. For example, a trip by Hessenthaler from Austria to Germany was tracked. The vehicle was also monitored in Berlin, where Hessenthaler had parked near the office of his lawyer Johannes Eisenberg in Kreuzberg, for example.

The accused or suspects in the preliminary proceedings have taken various flights, including to Ibiza. The Vienna Public Prosecutor’s Office has therefore requested passenger lists from a total of 87 airlines operating in Austria for flights booked by the persons in question from 1 January 2017 to 18 May 2019. In the Hessenthaler case alone, data on „all flights booked and taken by the accused Hessenthaler worldwide“ for this two-and-a-half-year period were also ordered to be handed over via EIO’s in Germany, including at Lufthansa and at Eurowings. Should such flights be identified, the Vienna public prosecutor’s office requested the complete passenger lists. Previously, the Austrian investigators had asked Eurowings for transmission via informal channels, but the company insisted on an official order.

„To the best of my recollection, there were about 20 EIOs, including for house searches and observations,“ says lawyer Eisenberg to „nd“. The number seems realistic, because the Munich public prosecutor’s office alone received, according to its own information, „a little over ten letters rogatory“ concerning the proceedings against Hessenthaler. Some of these can also be found in a collection on the epicenter.works website. Besides Germany, EIOs were also sent to authorities in Spain or Switzerland.

Eisenberg criticises the fact that those affected by an EIO have „practically no effective legal remedy“ against the requested state. „In Austria, the judiciary has, in a law-breaking manner, evaded almost all legal remedies,“ says the lawyer. „Similar to the Julian Assange case, this kind of European cooperation is proving to be a gateway for arbitrary national justice in European jurisdictions.“

Published in German in „nd“.

Image: Screenshot Ibiza-Video (SZ.de, all rights reserved).