To the
Regional Court Innsbruck
Maximilianstraße 4
A-6020 Innsbruck
regarding: Crimes under § 146 and § 147 of the Penal Code
Objection to the Indictment
In the present criminal matter, the defendant hereby timely files, within 14 days of delivery, an objection to the indictment issued by the Innsbruck Public Prosecutor’s Office, served on xxx, based on the following grounds of objection:
- § 212 para. 1 of the Code of Criminal Procedure;
- § 212 para. 2 of the Code of Criminal Procedure;
and - § 212 para. 3 of the Code of Criminal Procedure;
and substantiates it as follows:
Regarding § 212 para. 1 of the Code of Criminal Procedure:
- The appellant preliminarily assumes that the facts alleged by the Public Prosecutor’s Office in the challenged indictment do not constitute an offense under the Criminal Code. According to the invoked grounds of objection, an objection must be upheld if the facts alleged by the Public Prosecutor’s Office, even if hypothetically assumed to be true, do not meet the criteria for a criminal offense (Birklbauer/Mayrhofer in Fuchs/Ratz, WK StPO § 212). This is indeed the case here. The offense includes both objective and subjective elements. Specifically, in a case of process fraud, it is subjectively required that the perpetrator knowingly deceives the court or judge about facts with the intention of obtaining a judgment that causes harm to the opposing party. The essential subjective element of the offense is the knowingly false statement by the perpetrator, who aims to achieve these consequences with this false statement in the process. The perpetrator must fulfill these subjective requirements already at the time of initiating the proceedings. At this point, the perpetrator must intend to commit such process fraud with their statements or complaint. However, in the present case, these conditions are not even remotely met based on the alleged facts. The Public Prosecutor’s Office quotes the contents of the mutual submissions in the said civil proceedings incompletely and does not consider that the appellant’s request at the beginning of the civil proceedings was entirely different from what is now alleged in the indictment.
1.1 The Public Prosecutor’s Office overlooks that the appellant initially requested an accounting in the civil proceedings because the opposing party had not provided any documents related to their accounts up to that point. Only after these documents were presented was the claim for performance formulated. Therefore, the Public Prosecutor’s argument that the appellant had planned from the beginning to make knowingly false statements to achieve a fraudulent process success is contradicted by the further content of the civil file, which the Public Prosecutor’s Office ignored. For example, the appellant did not mention or claim in her complaint that a forged power of attorney existed since she was unaware of it at that time. Only during the proceedings did the opponents present this power of attorney and claim that the transactions on the plaintiff’s accounts were covered by this power of attorney.
Thus, the plaintiff could not have planned from the beginning of the civil proceedings to obtain benefits by presenting false facts, as reflected in her submissions.
Instead, the appellant disputed the authenticity of the power of attorney presented by the opponents during the ongoing proceedings, stating that she had never signed such a document.
1.2 The situation is similar concerning all other documents which, according to the Public Prosecutor’s Office, were allegedly signed by the appellant and which she allegedly falsely claimed were not her signature. These documents were also presented by the opponents during the proceedings after an initial request for accounting, so the appellant could not have known these documents at the time of initiating the proceedings.
Given these circumstances, there is no room for assuming an intent to commit process fraud. For such an assumption, the appellant would have had to proceed fraudulently based on knowingly false statements at the time of filing the lawsuit, which is de facto excluded based on the content of the civil file.
In reality, the documents now used by the Public Prosecutor’s Office against the appellant were not presented by her to substantiate her claim and labeled as forgeries, but were presented by the opponents after an initial request for accounting, and the appellant disputed parts of these documents as inauthentic, as is her right in civil proceedings. According to civil procedure rules, it is up to the opponents to prove that the documents disputed by the appellant are indeed authentic, especially concerning the various copies and reproductions presented by the opponents.
Given this, it is fundamentally impossible to attribute the necessary intent for process fraud to the appellant. It is particularly incomprehensible to accuse the appellant of process fraud simply because she disputed the authenticity of documents presented by the opponents. As in the civil proceedings, it is now up to the Public Prosecutor’s Office to prove that all documents disputed by the appellant as inauthentic are indeed authentic and that the appellant knowingly made false statements. The indictment does not provide any such circumstances; it lacks both a plausible narrative and corresponding evidence to support such a narrative.
Based on the facts presented by the Innsbruck Public Prosecutor’s Office in the challenged indictment, a conviction for process fraud is excluded due to the lack of necessary elements of the offense. Simply disputing the authenticity of documents presented by the opponents cannot constitute process fraud, neither objectively nor subjectively. As mentioned at the outset, proof of the necessary intent at the time of filing the lawsuit is required, which the Public Prosecutor’s Office has neither alleged nor can be deduced from the facts.
Regarding § 212 para. 2 of the Code of Criminal Procedure:
- This ground for objection is essentially fulfilled if the facts established by the Public Prosecutor’s Office are insufficient to make a conviction of the defendant even remotely likely. According to established jurisprudence, a simple likelihood of conviction is assumed to allow an indictment. In this sense, an objection must be upheld if, despite the Public Prosecutor’s investigations, the urgency and weight of the suspicion are insufficient to make a conviction appear even remotely possible from a realistic perspective (Birklbauer/Mayrhofer in Fuchs/Ratz, WK StPO § 212). If the objection court does not follow the objection based on the arguments in point 1, this ground for objection is certainly fulfilled. The Public Prosecutor’s Office bases its indictment solely on the results of the first-instance civil proceedings 6 Cg 158/14t before the Regional Court Innsbruck. The Public Prosecutor’s Office correctly notes in the indictment that no final decision has yet been made in these civil proceedings, and an appeal is currently pending at the Higher Regional Court Innsbruck. The Public Prosecutor’s Office has not conducted any investigations of its own; no expert opinions were obtained, nor were any witnesses questioned or interviewed by the police. Instead, the Public Prosecutor’s Office relies on the evidence results from the said civil proceedings and has otherwise remained inactive. In her response, the appellant repeatedly pointed out that she had challenged all the foundations used by the Public Prosecutor’s Office to substantiate its indictment in the civil proceedings as incorrect, and it remains to be seen to what extent the first-instance judgment and the results of the first-instance civil proceedings will stand. From the appellant’s perspective, it is incomprehensible that the Public Prosecutor’s Office, in anticipation of the appeal decision, treats the results of the first-instance civil proceedings as “set in stone” and bases its indictment against the appellant on this basis. Regardless of these fundamental considerations, it is assumed that a conviction of the appellant is not likely based on the circumstances highlighted in the indictment, for the following reasons.
2.1 The Public Prosecutor’s Office lists its suspicions against the appellant on page 9 under point VI. The Public Prosecutor’s Office must prove the appellant’s guilt; it is not the appellant’s responsibility to prove her innocence based on unsubstantial and inadequate evidence or general accusations from the Public Prosecutor’s Office.
As far as the Public Prosecutor’s Office states on page 9 that the appellant falsely claimed that signatures on presented settlement documents were forgeries, the Public Prosecutor’s Office fails to specify the evidence on which this suspicion is based. In the said civil file of the Regional Court Innsbruck, there is a court expert opinion, which, according to the appellant’s appeal submissions, was not prepared in accordance with the law. Additionally, there is a private expert opinion from a qualified forensic handwriting expert presented by the appellant, clearly showing the deficiencies of the court expert opinion in the civil proceedings. This is also a significant point in the pending appeal before the Higher Regional Court Innsbruck. As far as the Public Prosecutor’s Office bases its indictment on the court expert opinion in the civil proceedings, this is not the case. It should also be noted that the Public Prosecutor’s Office did not obtain its expert clarification of the said documents and blindly relies on the said expert opinion, ignoring the further expert opinion in the file that exonerates the appellant. The Public Prosecutor’s Office also claims that the objective creation of an expert opinion failed due to the appellant’s behavior, without providing any evidence for this incomprehensible accusation. The appellant did everything required by the court expert in the civil proceedings, especially producing numerous comparison signatures in the presence of the expert and providing countless comparison documents with undisputed signatures. What else the appellant should have done to facilitate an objective assessment remains entirely unclear.
At this point, it must be noted that based on the expert opinion in the civil file, a conviction of the appellant is de facto impossible. In case of a criminal trial, the appellant will oppose the reading and use of the completely inadequate expert opinion by Mr. Farthofer and request an independent expert opinion relevant to the criminal trial. The Public Prosecutor’s Office must prove that the signature on the said power of attorney belongs to the appellant and that she made false statements in this context. Based on the civil file, a likelihood of conviction solely based on the
mentioned, legally inadequate expert opinion is de facto excluded, and the Public Prosecutor’s Office has not obtained a separate expert opinion during the investigation that could support a likelihood of conviction. Therefore, no evidence can currently be presented that the appellant knowingly falsely claimed that the signature on the said power of attorney did not originate from her.
2.2 On page 9 under point a), the Public Prosecutor’s Office lists several documents from the said civil proceedings and claims that the appellant falsely claimed all these documents were forgeries. The Public Prosecutor’s Office argues in the indictment that the appellant’s statements are “not credible and not understandable,” but fails to provide concrete evidence proving that the appellant knowingly made false statements, and no such evidence can be found in the civil file. Only the signature on the said power of attorney was examined, not other documents and records.
The Public Prosecutor’s Office overlooks that the appellant is not obliged to prove that all these documents were not signed by her. Instead, the Public Prosecutor’s Office must prove that the signatures on these documents belong to the appellant and that she knowingly made false statements in the civil proceedings. It should be noted that most of the documents cited by the Public Prosecutor’s Office are photocopies or reproductions, not originals, making it very difficult to prove that the signatures are indeed from the appellant.
The Public Prosecutor’s Office cannot show in the indictment how the evidence should be presented in the criminal trial to prove that the handwritten notes and signatures on these documents belong to the appellant after she consistently disputed this in the civil proceedings.
The indictment’s justification by the Public Prosecutor’s Office for the documents listed from page 9 onwards is that the appellant’s claims are “not credible and not understandable,” without providing any concrete evidence to prove that the appellant signed these documents or that the handwritten notes were made by her. An indictment cannot be based on such grounds, as the prosecution must provide concrete evidence supporting the charges and demonstrating a likelihood of conviction. As previously mentioned, a conviction would only be possible if the Public Prosecutor’s Office provided sufficient evidence that all these documents and the described power of attorney were indeed signed by the appellant and that she knowingly made false statements. This indictment lacks such evidence and only presents a collection of assumptions and allegations without concrete proof. Repeated phrases like “the appellant’s statements are not credible and not understandable” are insufficient to prove the necessary elements for a conviction.
Given these circumstances, it is clear that based on the facts and evidence presented by the Public Prosecutor’s Office, a conviction for process fraud is de facto impossible. If the prosecution’s approach were followed, almost every civil trial would result in the losing party being accused of process fraud. In practice, civil courts often have to evaluate differing statements from parties and base their decisions on this evaluation. This cannot be the basis for a criminal indictment for process fraud, which requires clear and well-supported factual evidence showing that a party knowingly and intentionally tried to deceive the court. Such evidence is not present in this indictment, and it appears as a collection of assumptions and allegations without sufficient evidence. Therefore, the appellant considers the indictment under § 212 para. 2 of the Code of Criminal Procedure to be inadmissible, and the objection should be upheld for this reason.
Regarding § 212 para. 3 of the Code of Criminal Procedure:
- Should the objection court not follow the objection based on the above reasons, the appellant also considers the grounds of objection under § 212 para. 3 of the Code of Criminal Procedure to be fulfilled. In this case, the Public Prosecutor’s Office should be accused of not sufficiently investigating the facts. According to established jurisprudence, the Public Prosecutor’s Office’s investigation results form a sufficient basis for conducting a main trial if a simple suspicion suggests a conviction. This requires that the weight of incriminating and exonerating evidence suggests a conviction with simple probability. The scientific probability must be more than 50%, with an objective standard applied. The investigations must also be advanced enough to justify ordering a main trial, meaning that the relevant evidence for the main trial can be reviewed and is prepared for immediate execution without significant delay (Birklbauer/Mayrhofer in Fuchs/Ratz, WK StPO § 212).
3.1 Based on these requirements, it is evident that the Public Prosecutor’s Office has not conducted sufficient investigations and clarifications. Regarding the expert opinion by Farthofer obtained in the civil proceedings, which the Public Prosecutor’s Office intends to use as the main incriminating evidence against the appellant, it must be noted that this expert opinion was not prepared according to the legal requirements applicable in both civil and criminal proceedings. According to the Public Prosecutor’s Office, the expert used numerous comparison signatures of the appellant, all undisputedly recognized as genuine, to conclude that the questioned power of attorney from xxx was not signed by the appellant. Following this expert opinion, the opponents presented numerous documents, which were again sent to the expert. Although the appellant disputed most of these documents as forgeries, the appointed expert assumed these documents to be genuine, leading to a change in his expert opinion. The expert assessed a signature that did not originate from the appellant based on comparison signatures that also did not originate from her. This flawed and legally non-compliant procedure was highlighted by the appellant in the appeal proceedings before the Higher Regional Court Innsbruck. The Public Prosecutor’s Office completely ignored the private expert opinion submitted by the appellant in the civil proceedings, which clearly and understandably demonstrates the deficiencies of the Farthofer expert opinion. This expert pointed out that a handwriting comparison can only be conducted using undisputed comparison material; otherwise, it is not valid. Thus, there are two expert opinions in the civil file, one incriminating and one exonerating the appellant.
Furthermore, it must be noted that without the appellant’s consent, the Farthofer expert opinion cannot be read in the criminal trial, making it necessary to obtain an independent expert opinion relevant to the criminal trial. Based on this, a sufficient likelihood of conviction cannot currently be derived from the Farthofer expert opinion. The two expert opinions in the file cancel each other out, and there is no basis to assume that the signature on the said power of attorney belongs to the appellant. Since the main incriminating evidence used by the Public Prosecutor’s Office, the Farthofer expert opinion, cannot be read in the main trial, the Public Prosecutor’s Office should have obtained an independent expert opinion during the investigation to file a possible indictment. Given the current state of the file, it must be assumed that an independent expert opinion will be necessary in the upcoming criminal trial, which was already evident to the Public Prosecutor’s Office during the investigation. Thus, the current proceedings cannot be conducted without significant delay, and the court would have to address the deficiencies attributed to the Public Prosecutor’s Office. It should be emphasized that the Public Prosecutor’s Office has conducted no investigations and bases its indictment solely on the content of a civil file, which has no final decision yet.
3.2 The situation is even more glaring regarding the other evidence the Public Prosecutor’s Office uses as incriminating in the challenged indictment. The Public Prosecutor’s Office bases its indictment on various documents presented by the opponents in the civil proceedings, which the appellant disputed as forgeries. The civil file contains no corresponding evidence proving that the documents disputed by the appellant are indeed genuine or signed by the appellant. Even the inadequate Farthofer expert opinion does not address this, as the expert’s mandate did not include such an examination. The repeated justification by the Public Prosecutor’s Office that the appellant’s disputes and statements are not credible and not understandable cannot justify a criminal conviction; instead, it will be necessary to substantiate the Public Prosecutor’s claims with corresponding evidence. Therefore, if the Public Prosecutor’s Office indeed believes that all the documents cited in the indictment from page 9 onwards are genuine and the appellant falsely claimed otherwise, this must be substantiated by an expert opinion or other evidence. The Public Prosecutor’s Office does not offer such evidence in its indictment, and it is not even remotely apparent based on which investigation results such evidence could be presented. Thus, no likelihood of conviction over 50% is currently given concerning all these documents.
3.3 Fundamentally, the present indictment is shocking because the Public Prosecutor’s Office, as already mentioned, has conducted no investigations or clarifications. The Public Prosecutor’s Office bases its indictment on the content of a civil file, which has no final decision yet, without any activity of its own. A dutiful Public Prosecutor’s Office is expected to conduct the legally necessary clarifications regarding possible indictment facts and gather both incriminating and exonerating evidence to decide whether to file an indictment. It cannot be that an indictment repeatedly states that the appellant’s statements in the civil proceedings are not credible and not understandable to assume that documents not yet proven to be genuine are genuine. A dutiful Public Prosecutor’s Office must conduct corresponding investigations, particularly obtain expert opinions, to substantiate its suspicions. It is unacceptable to do nothing and base the indictment on phrases like “not credible or not understandable.” Overall, considering the objective examination of the present indictment, it cannot be assumed that the likelihood of conviction of the appellant regarding the alleged process fraud exceeds 50%. On the contrary, given the Public Prosecutor’s Office’s current investigation results, the opposite must be assumed.
If the objection is not upheld based on the previously mentioned grounds, this ground for objection should be considered, and the indictment should be temporarily returned to the Public Prosecutor’s Office to conduct the necessary clarifications.
In conclusion, the appellant requests the following:
- To uphold the present objection and dismiss the proceedings against the appellant.
In the alternative,
- To uphold the present objection and return the indictment to the Public Prosecutor’s Office for further investigation to clarify the matter.
#survivor of a psychopath
