Those present:
Judge Fiala, Deputy Judge, 2 jurors, 2 replacement jurors, public prosecutor, attorney Zanger representing Marcus Omofuma's children and his estate, attorney Rifaat, attorney Ofner, the defendants B., R. and K., the press and the public with numbered tickets.

The defendants were granted the special privilege of being conducted into the courtroom via the judges' room, without having to face the cameras waiting in the foyer.
After the jurors had been sworn in and the defendants' details had been verified, proceedings started with the indictment being read out by the public prosecutor.

The Public Prosecutor:
The charge is "cruelty to a prisoner resulting in his death" according to § 312 of the Penal Code (carrying a prison sentence in the range from 1 to 10 years): Over long stretches, the evidence on which the indictment is based sounds like a plea by defending counsel: The police statements produced so far on what happened are accepted unquestioningly. Marcus Omofuma is said to have announced that he would not allow himself to be deported voluntarily; therefore a decree from the Ministry of the Interior was said to have been issued as early as 26 April 1999, according to which he was to be accompanied by 3 officers, and restraints had rightly been applied to his hands during the first stage of his deportation. Having been calm during the drive to the airport, he then, while tickets were being checked, allegedly made an attempt to injure himself - to prevent his deportation - by banging his head against the VW's windows. The rationale for the alleged attempt at self-injury, according to the prosecution, was that an injured person would not have been transported. At the same time, he was kicking and attempting to bite the officers who were trying to prevent him from injuring himself and to immobilise him. That Marcus Omofuma bit defendant K.'s hand during this affray is likewise already accepted by the prosecution as a proven fact. The prosecution therefore considers the temporary taping of Omofuma's mouth to have been justified and proportionate, as it would be in self-defence (although the UVS has, in fact, ruled against this view), "even though it did not accord with human dignity". In an uncorrected slip of the tongue, the prosecution refers to Marcus Omofuma as the defendant. Once on the plane, Marcus Omofuma is said to have staged another attempt to injure himself and finally, with considerable force, to have been buckled into his seat, in the last row of seats but one, with a belt across his chest, his breathing thus being restricted. (For the first time, the indictment expresses criticism of the defendants.) Because of his loud groans, Marcus Omofuma is alleged to have been taped up even further, using sticking plaster over his mouth and under his chin to the back of his head, his right nostril being partially blocked with tape in the process. A Balkan Air crew member is claimed to have firmly boxed Omofuma's ears, because he was hammering his feet against the seat in front of him, whereupon restraints were applied to his feet as well. From this point onwards, if not before, the tape applied to his head no longer served the purpose of averting any attacks, but only that of keeping him quiet and not troubling the other passengers. Consequently it was no longer justified and proportionate. The defendants must have been aware of the agonies suffered by Marcus Omofuma as a result. The restraints were maintained during the entire flight, even though, according to the prosecution, all resistance had ceased soon after takeoff. Passengers were said to have asked the defendants to check whether Marcus Omofuma was still alive. This they did, allegedly, by merely putting their hands under his nose. According to the medical report, his death struggle took between 20 and 60 minutes. According to the prosecution, the defendants have essentially confessed, this being regarded as a mitigating circumstance even at this early stage. The defendants could and should have called off the deportation. Accordingly, the cruelty allegation is reduced by the prosecution, in concrete terms, to the time over which Omofuma's mouth had been sealed with tape and he had been completely immobilised by being tied up and taped up.

Defence Counsel Rifaat.
Counsel defending the first two accused officers, Mr Rifaat, starts off by praising the prosecution for their "objectivity" and pleads "not guilty as accused". According to him, innocence is proven by the fact that the officers were not suspended immediately, but only after a "media and political" campaign had got going. This, he felt, indicated that the superiors of the 3 officers did not consider them to have acted unlawfully. He stressed that the officers had not realised the potential consequences of their actions and that awareness of wrongdoing could not yet be presumed on 1 May 1999. Keeping Omofuma's mouth sealed over a prolonged period was intended to ensure the safety of the passengers and to allow the flight to proceed in accordance with regulations, and consequently had indeed been a proportionate measure. Rifaat then attempts to shift the responsibility to the Bulgarian airline, arguing that it was ultimately up to the pilot and that one of the flight staff had gestured to suggest that Omofuma's mouth be sealed in the event of resistance. Moreover, the officers hadn't acted for the hell of it, but because of the aggressive actions by Marcus Omofuma, who had bitten defendant K.'s hand. Marcus Omofuma had manifested typical behaviour aimed at preventing the deportation. Had the 3 officers in such a situation simply called off the deportation, the state would become powerless to execute such decisions. The agonising condition of Marcus Omofuma could not have been discerned by the officers, and therefore the intention of cruel behaviour was lacking. Without such intention, however, an offence according to § 312 of the Penal Code could not have been committed.

Allegedly, Marcus Omofuma was hit by one of the airline staff, inspiring Rifaat to produce a simile: Were 2 adolescents in a park to grip a dachshund by its ear and tail and swing it round, the judge might conceivably box either adolescent's ears, but surely not hit the dachshund. This comparison is meant by Rifaat to suggest that Marcus Omofuma was not seen by third parties as the recipient of cruel treatment. He had his ears boxed because his behaviour had been so refractory. The blow allegedly proved that rather than Omofuma being the victim of cruel behaviour, his resistance constituted cruelty to the officers accompanying him. In addition, Omofuma's behaviour allegedly induced panic in a group of children on the same flight. A similar case occurring just 3 days before 1 May 1999 is allegedly documented, where a deportee created an uproar, screaming that he was being kidnapped and that he wanted to see the captain. After all, one could never be sure what might happen, with a group of 28 children between 10 and 14 years on board, whom Omofuma could have taken hostage, and planes could also be flown into the World Trade Center. In any case, Marcus Omofuma, by his intimidatory actions, had disrupted the flight schedule.

Moreover, only 2 of the 3 medical reports conclude that asphyxiation was the cause of death. The Austrian report by Prof. Reiter additionally considers heart disease to have been a possible cause. Internationally, only one method is thought to exist which permits an unambiguous diagnosis of asphyxiation. This blood gas method was allegedly not used in Sofia and subsequently was no longer feasible. In the defence's view, death by asphyxiation cannot therefore be assumed beyond reasonable doubt. "If 3 medical authorities cannot agree as to whether he suffocated, how could the police officers have recognised this?". If a risk to somebody's health was to be anticipated, the responsibility would certainly fall on the captain of the plane. The entire crew saw the state Marcus Omofuma was in, and they would have had to act accordingly if required.

Defence Counsel Ofner
Counsel defending the officer who was allegedly bitten, Freedom Part deputy Mr Ofner, starts off by providing some background information. In 1998 alone, he said, there had been 10,400 deportations, of which 2849 had been carried out by plane. This was a risky operation for everybody involved. The destination most dreaded by the deporters, he claimed, was Lagos in Nigeria. On one previous occasion, Austrian detectives had been detained and kidnapped there, and they were not released until the Austrian government had ransomed them. Even now it was not advisable for Austrian officials to venture beyond the VIP lounge. A detainee about to be deported had once bitten off a police officer's finger, and attempts to sew it back on had not been successful. Additionally there was the risk that some of those to be deported were HIV-positive. Mr Ofner painted a topsy-turvy picture, presenting tied and gagged Marcus Omofuma as the aggressive perpetrator and the officers deporting him as scared victims. Other countries, he said, applied appropriate regulations and means. Deportations on fully booked scheduled flights were tricky, deportations everywhere else normally being carried out using military, chartered or government aircraft. The way the prisoners from Afghanistan were transported to Guantanamo in Cuba was exemplary, using gags, blindfolds and earmuffs to avoid any risk. In Austria the motto up to 1999 was: It'll be all right. The officers were not told what was mandatory and what was permissible. There were no courses, no decrees and no directives. All that mattered was to get rid of those to be deported. As no decrees and directives had been issued, the "lowly police officers" could not reasonably be called to account. Before 1 May there was a single decree addressing deportations by air; typically, this related to the purchase of air tickets.

1 May 1999 then gave rise to a fireworks of regulations and statistics, as well as training courses. Mr Ofner's line of defence also draws on the Human Rights Advisory Committee's report: This, he said, does condone so-called problem deportations and describes the use of force as permissible in this context. The reforms after 1 May 1999 should be considered steps in the right direction. Michael Sika is quoted as saying that errors were necessary to identify weak points.
In an insinuatory digression, Mr Ofner cast doubt on Marcus Omofuma's identity. He claimed that a man calling himself Marcus Bangurari, whose fingerprints were identical to those of Marcus Omofuma had filed several applications for asylum and had drawn financial support in Germany as late as 8 September 1999, i.e. several months after the latter's death.
When asked by the judge after the statement by the defence, all 3 defendants plead "not guilty". The examination of the defendants is prefaced by the judge's comment that even for the defendants it is advisable to speak the truth. (Defendants are allowed to lie.)

Defendant B. - "The professional"
The police officer examined the first morning describes himself as an experienced deporter. He claims to have taken part in historically the first deportation from Austria that required accompanying officers and to have carried out 30 to 40 "problem deportations" since then. The idea of sealing the deportee's mouth had emerged at some unspecified time in the course of deportation practice. All the superiors were aware of it. It had also been reported in the press, but nobody had ever objected to this practice. For years, a picture of a detainee who was to be deported and had his mouth sealed with tape had been on display in the Aliens Police office and had even been proudly shown to a visiting Minister of the Interior. Usually, the seal across the mouth was removed after takeoff, he said, as the deportees realised by then, if not before, that resistance was useless.

B. himself had been injured once at Rome airport during a deportation, and he said that he had heard of a fierce struggle in Sofia between colleagues of his and a Black African who was being deported. The official reports, however, did not mention these risks and the coercive measures used. The judge's question, why in the face of these risks the officers did not complain and did not draw their superiors' attention to these intolerable conditions, remains unanswered. According to B., in any case, no instructions had been issued, not even implicitly, to omit the description of the actual practices from the reports. They just weren't reported. Nor had there been any instruction to go through with the deportation come what may.

B. then describes the course of events. The file did not mention any illnesses of Marcus Omofuma. A velcro tape restraint had been applied at the outset, as he had said he would resist. B. said that he had attempted to draw Marcus Omofuma into a conversation. This was his usual tactic to defuse the situation. It didn't work, though. Marcus Omofuma simply stared out through the car window. Until they reached the airport, he had stayed calm, however. At the airport he got out of the car to sort out the formalities with Mr Kostov from Balkan Air, who according to B. had gestured to indicate the option of sealing the deportee's mouth in the event of resistance. This was the procedure for every flight if somebody shouted. As soon as he turned round he saw the struggle in the vehicle. It took 7 officers in all to immobilise Marcus Omofuma who was fighting tooth and nail. After co-defendant K had shouted "Ouch, he bites", Marcus Omofuma's mouth was sealed, initially just with a single strip of sticking plaster across his cheek. Due to mouth movements, however, this strip of plaster had soon come loose, and a further layer of sticking plaster was therefore applied. Marcus Omofuma then braced himself so firmly within the car that some force was required to pull him from the VW bus and then carry him into the plane. At first, Marcus Omofuma was seated in the last row, but after he had been banging his head against the rear wall, he was moved to the last row but one.

Having given a detailed description of the restraining and gagging arrangements (several layers of adhesive tape over the mouth to the back of the head, prevention of chin movement by adhesive tape across the top of the head, hand and foot restraints, seat belt across the forearms resting in his lap, immobilisation of the head against the seat's headrest, immobilisation of the chest against the seat using adhesive tape, immobilisation of the tied-together legs by means of a velcro tape held by co-defendant K seated behind), he described this state as "uncomfortable, but not agonising". He emphasised a number of times that Marcus Omofuma, in the event of being in pain or a need to perform bodily functions "should just have said something". Against the objection, by the judge, that this would scarcely have been possible in his position, B. defended himself by claiming that, given his professional experience, he was able to distinguish the difference between "aggressive and imploring behaviour" from the blink of an eye. B. could not tell, however, whether he had expressly pointed out to Marcus Omofuma, in English, that he should blink his eyes once he was prepared to abandon his resistance. Instead, Marcus Omofuma kept tugging angrily and aggressively at his restraints. Before his feet were immobilised, he banged the seat in front of him, so that a passenger seated there changed places with a crew member, and the crew member boxed Marcus Omofuma's ears because he kept kicking the seat in front. B. said he had been surprised by the box on the ears and that he gestured to the crew member, giving him to understand that this should be refrained from.

While there had been many incidents in the past, the deportees had usually calmed down after takeoff. This was the first time that didn't happen. Until then, however, no deportation had ever been called off either. At any rate, all 3 officers had to collaborate continuously to keep Marcus Omofuma quiet. B. sat next to Marcus Omofuma, the two other defendants behind him. Quiet phases kept alternating with sudden, unexpected attempts to free himself. B.'s endeavours to talk Marcus Omofuma out of this were persistently ignored by the latter, B. said. Alleged statements that early on Marcus Omofuma had ceased to exhibit any signs of resistance are repudiated by B. Not until the plane began its descent, 10 to 20 minutes before touchdown, had Marcus Omofuma finally became quiet, he claimed. At this point he conferred with his colleagues as to whether the tape should be removed. They came to a joint decision not to do so, however. On one occasion a crew member asked him to check whether Marcus Omofuma was all right. His nose had certainly been clear, not a millimetre being covered by tape. B. also checked nasal respiration a number of times and felt Omofuma's pulse twice. His breathing was steady and his pulse sensible. Replying to the deputy judge's criticism, that this amounted to indifference as to whether Marcus Omofuma would soil himself - which did indeed happen - B. says that he didn't notice. B. states that the chest was not constricted by the adhesive tape. The deputy judge retorts that he cannot conceive of immobilisation without constriction. The public prosecutor asks why Marcus Omofuma's mouth had not at least been briefly unblocked during a calm phase. In that case, B. says, Marcus Omofuma would again have been able to head-butt or to cause a panic by screaming.

Regarding the source of sticking plaster, adhesive tape and velcro tape, defendant explains that these were purchased privately by colleagues at their own expense and on each occasion were passed on as a kit, from one deportation to the next, among Aliens Police officers. The public prosecutor's comment that 2800 deportations a year, with a kit of this type being carried each time, would mean considerable expenditure, and why nevertheless no attempt had ever been made to claim expenses, meets an evasive answer by B. . Everything was done on a "semiprivate basis", although immediate superiors were aware of this practice, and it had been discussed with jurists. Up to 1 May 1999, at any rate, B. had assumed that it was lawful to seal detainees' mouths with adhesive tape. In response to the public prosecutor pointing out that the UVS had found as early as 1996 that using tape to seal the mouth is unlawful, B. claims that he had never heard of this verdict. "In an ideal case" the mouth would, in any case, not have been kept sealed for more than 45 minutes.

Report from the trial - Part 1

Trial of the 3 Aliens Police officers ... or perhaps of Marcus Omofuma after all?

Court proceedings on 4 March 2002 (afternoon)

After a lunch break from 12:10 to 13:15, defence counsel Ofner had lost his mobile phone, and proceedings continued with the examination of the other two defendants.

Defendant R. - "The packer"
R.'s account of the events starts at the airport. His colleague B. had left the side door open, he says, when he joined Mr Kostov from Balkan Air. Marcus Omofuma then tried to escape. He was stopped, however, and then banged his head against the side-window of the van. A fight ensued, and after defendant K. had shouted "Watch it - he bites", Marcus Omofuma's mouth was sealed with two strips of adhesive tape. The only way to bring him under control at all was for a colleague to get into the VW van through the tailgate to immobilise Marcus Omofuma's head. R. himself claims to have suffered a "wound on his forearm, a scratch" as a result of the violence in the vehicle. He certainly found it quite stressful. Finally, they tied Marcus Omofuma's knees together and between the two of them carried him onto the plane.

R. himself had taken part in 5 previous deportations, he says, 4 of which had been "problem cases". The written reports of these had always been adaptations of his colleagues' reports and consequently did not contain any specific details relating to the problems the deportations involved. The adhesive tape and the sticking plaster were likewise passed on between colleagues. The thought that that might not be quite legal did cross R.'s mind, but nothing was ever put to their superiors. They simply didn't feel it was anything to worry about, and up to the case in hand nothing had happened, after all. The thought that the immobilisation wouldn't be very pleasant did cross his mind, but he didn't know that something like this could happen. He had no medical training except for a First Aid course when learning to drive.

In the plane, Marcus Omofuma was tied to his seat using 2 to 4 loops of adhesive tape round his body. The adhesive tape went right around his head. Around his chin, a length of adhesive tape was attached to the headrest, thus immobilising his head as well. Some head movement was possible, to the extent that the backrest could move. R. was sitting obliquely behind Marcus Omofuma. His job was to hold onto Marcus Omofuma's backrest. The seat locking mechanism was so worn that Marcus Omofuma was able to push the backrest backwards. To keep the backrest in front of him in its position, R. jammed his knees against the seat in front. At no point was a rubber rope used to lash him down even further. The only go they had at lashing down was with a velcro tape, for just a few seconds, but that didn't make any difference to the immobilisation, so they abandoned the idea immediately. The seat belt was also loose and "made no difference". Nor were the tapes tightened, since that was not possible with adhesive tapes. The judge argues that R. must be the heavyweight world champion if he managed to keep the backrest in position for an hour.

When attorney Zanger quotes from Prof. Brinkmann's report that Marcus Omofuma, probably because of the tightened strap, gradually had more and more difficulty in breathing, he is cut short by the judge who claims that the two experts from Bulgaria and Germany tend to exceed their authority and to state as facts matters yet to be assessed by the court. In response to the judge's point that the defendants would have been quite unable to ascertain whether Marcus Omofuma intended to behave, R. said that other deportations had taken a similar course, and deportees in other deportations had always given in. Eye blinking had always been the signal. But he, from behind, couldn't tell what was going on.

The deputy judge asks whether anybody was in charge among the 3 defendants. R. says that they were all of equal rank, although B. was indeed the group leader. Decisions were sometimes made spontaneously and sometimes in consultation, and they had always been in agreement. Thereupon the deputy judge makes the point that this therefore constituted conscious and deliberate collaboration. Asking whether in R.'s view Marcus Omofuma suffered physical agonies, the deputy judge receives no direct answer, nor does the public prosecutor when he wonders: So you expect us to believe that you, according to the medical expert report, did not notice for half an hour that Marcus Omofuma was dying? Attorney Zanger asks how long the struggle in the van went on for. According to R., this lasted half an hour, and it took 7 officers to get Marcus Omofuma out of the van. Zanger asks whether R. didn't notice any signs of Marcus Omofuma breathing heavily after this effort? R. responds that Marcus Omofuma was probably very fit and had been a footballer. At the time he didn't give any thought to that effort and any consequential difficulty in breathing. Indeed, it was very audible if someone was breathing heavily through the nose. (Comment: In a plane in flight?).

Defence counsel Ofner puts the question whether the 3 officers, in view of the assumed safety risk and the children on board would even have been justified, without consulting the captain, in loosening the restraints? R. replies that in other deportations they had indeed made autonomous decisions. However, neither the 3 officers nor, evidently, the crew members saw any reason to make any alterations to Marcus Omofuma's immobilisation or to unblock his mouth. The children had been very frightened, and a panic situation could easily have arisen if Marcus Omofuma had been able to shout. The public prosecutor's comment is that in Tupolev aircraft in flight one would have to roar like a bull if one wanted to be heard just two rows away. The deputy judge therefore repudiates the possible explanation "safety risk". More probably, it was simply more convenient for the officers to leave the adhesive tape in place and not cause any more of a stir. Attorney Zanger asks why in fact the children, who according to R. kept looking back at them across the seats, were in a panic. R. replies that this was probably due to Marcus Omofuma's repeated aggressive behaviour.

Defendant K. - "The one who was bitten"
After a 10 minute interval proceedings continue with the examination of the third defendant. He states that he told Marcus Omofuma about the deportation before they left and that he had interpreted Omofuma's behaviour as truculence right from the start. Marcus Omofuma tried to injure himself by banging his head against the car window. K. makes no mention of any attempt to escape. During the fight inside the van, Marcus Omofuma bit him on the back of his right hand. There was some bleeding. The bite marks were still visible in the summer, he said. (Note: Dr. Isima raised a question that was not put in the trial: Bite injuries caused by humans are dangerous wounds, because of the risk of infection. Why did K not even have the alleged wound disinfected or otherwise seen to?). He also mentioned this bite to the officers who took his statement in Sofia, but they refused to take this down, he says. In any case, according to K., given Marcus Omofuma's behaviour, right from the start there was the "risk" of the deportation being prevented. Asked what would actually have happened if the deportation had been called off, K. replies: "Probably nothing, just that a week later 4 colleagues would have come along".

While B. was to attend to the hands and R to the upper part of the body, his job was to immobilise the feet. To do this, he wound the last velcro tape round Marcus Omofuma's legs underneath the seat and held on to it to prevent him from kicking forwards. K. himself had never experienced a deportation like this one. On previous occasions the threat of using tape had been sufficient to calm the deportees down. It was only his colleagues who told him about problem deportations. He had not been present at a staff meeting where this subject was discussed, according to one of his superiors. In 1995, though, there had been the case of a Black African whose behaviour had been refractory even in pre-deportation detention, whereupon a major when asked for advice is alleged to have said: "Well, have a go at deporting him, you'll soon see what the captain has to say about that." At that time, all deportations were carried out via Balkan Air.

Evidently, B. sitting in front of him had been unable to establish a basis of trust with Marcus Omofuma, as he reported at regular intervals to his colleagues sitting behind him. The crew member had boxed Omofuma's ears rather earlier than just 35 minutes before touchdown. There had been quiet intervals in Marcus Omofuma's raging, and K. was then always under the impression that Marcus Omofuma was regaining energy and was trying to check whether the officers were still alert. At no time did he gain the impression that Marcus Omofuma might be exhausted. At any rate Marcus Omofuma did not give in. In his view, Marcus Omofuma had not suffered physical agonies, and it would have been up to Marcus Omofuma to resolve the situation.

The reason K volunteered for the deportation was that missions abroad carried a bonus.
After touchdown the passengers were let off the plane first. Only then was the immobilisation undone, Marcus Omofuma putting up "passive resistance". Asked by attorney Zanger, what form this passive resistance had taken, K. answered that they couldn't reach the knots. (Note: Knots in adhesive tape?). Whether they would be able to fly on to Lagos had not been clear to K. and his colleagues at this point, for that one hour to Sofia had already been very exhausting, and the prospect of a 6 hour flight to Lagos might have persuaded them to call off the deportation and to fly back to Austria with Marcus Omofuma. When they noticed that there was something wrong with Marcus Omofuma they called a stewardess who then took Marcus Omofuma's pulse which at this point was still present, he claimed. Nevertheless a doctor was called who then confirmed that Marcus Omofuma was dead. The public prosecutor points out to K. that the account given by the 3 defendants is illogical, since rather than raging in fetters, Marcus Omofuma could have prevented his deportation much more effectively by blinking his eyes to have his restraints removed and then "hit out". According to the public prosecutor, no witness saw the 3 officers make any attempt at calming the situation.

Attorney Zanger points out a discrepancy in K.'s statements. During a previous examination K. stated that Marcus Omofuma had resisted most of the time. Now he had claimed that Marcus Omofuma had been quiet most of the time. K. sticks with the version that Marcus Omofuma had been quiet most of the time. In view of the discrepancy with available statements by witnesses the public prosecutor applies for two Dutch passengers to be questioned who are on record as having stated that Marcus Omofuma was lashed down with a strap and that they saw considerable force being exerted. The two defence counsels object to the additional witnesses. The two judges together with the two jurors briefly withdraw to confer. They reach the decision that the additional two witnesses from Holland shall be questioned on 8 April.

End of first day of the trial: about 4 p.m.