Kostelka: Why Does The State Let Down Its Police Officers Who Are Injured While Performing Official Duties?

Why Does The State Let Down Its Police Officers Who Are Injured While Per-forming Official Duties?

ORF-Series "Bürgeranwalt" (“Advocate for People”) – Broadcast of October 13th, 2007

A football match in July 2003, which the home team lost, led to the ruin of a young police officer who intended to prevent an outrageous fan from running into the field and attacking referees and players in a heated atmosphere. When he (Mr. K) and a co-worker tried to escort the fan towards the exit, the fan struggled vehemently and also kicked in the direction of the officer. Because of the violent resistance Mr. K. fell over a billboard positioned on the sidelines and as a result got a herniated disc. After two surgeries and a fairly long sick leave it was clear that his further career in the police service had been brought to an end by the football hooligan within a few minutes as Mr. K. can not work in the field anymore because of a permanent walking disability. The transfer to office work entails a loss of income in the amount of 850 euros per month. The disability pension in the amount of 230 euros per month granted because of the accident at work does not by far compensate this loss. After almost four years of proceedings the offender was sentenced in a final judgment to a fine of 240 daily rates because of the attempted resistance to a law enforcement official, taking into account the danger to the officer caused by him. However, he was acquitted of bodily harm because the criminal court did not consider it proven that the intention of the accused was to injure Mr. K.

According to § 269 of the Criminal Code resistance to a law enforcement official is committed when a person prevents an official or an authority from performing his/her/its official duty or coerces him/her/it to perform an official duty by using force (or by an equal way of committing a crime: by threatening to use force). However, the Federal Social Welfare Office of Upper Austria refused to consider the police officer as a victim of a crime in its letter written on June 1st, 2007 and took the view that he was entitled to compensation for a loss of income only if there was a final sentence for grievous bodily harm.

Ombudsman Dr. Peter Kostelka made it clear that he does not share this interpretation of the conditions of eligibility for compensation because the Law concerning the Compensation of Crime Victims applies to illegal and deliberate acts which are punishable by imprisonment for more than six months and which result to bodily harm or damage to health. In the opinion of the Austrian Ombudsman Board, both of the conditions are fulfilled in the case of Mr K., particularly as the offence of resistance to a law enforcement official is punishable by imprisonment for up to three years and as the medical statements obtained during the trial prove be-yond doubt that the fall over the billboard in the course of performing an official duty led to permanent health damage. The fact that not every physical injury caused to an official within this offence inevitably leads to an additional conviction according to §§ 83, 84 para 2 lit 4 of the Criminal Code is favourable to the offender but, however, does not alter the fact that police officers are under the obligation to expose themselves to danger while performing their official duties to protect third parties.

The injured police officer has filed a civil suit for compensation for injuries suffered and for the loss of income, which already amounts to 30.000 euros. However, it is unforeseeable how long these proceedings will last. In any case, the impecunious offender will not be able to compensate for damages. Neither the police authorities nor the Ministry of Social Affairs have been found to offer efficient help to Mr. K. since the fatal football match in July 2003.

Therefore Ombudsman Dr. Kostelka felt bound to point out that thousands of colleagues of the injured Mr. K. will be on duty at football stadiums during the European Championships 2008 next year. They should know for sure that they will receive compensation according to the Law concerning the Compensation of Crime Victims if they have to take action in order to protect the lives and the physical integrity of others against hooligans who are ready to resort to violence and if they are injured while doing so. The representative of the Ministry of Social Affairs promised to conduct a new examination. Even four years after the incident the police officer still has to wait…

Pension Insurance Institution Recognizes Invalidity in Case of a Rare Neurological Illness

In the broadcast of April 14th, 2007 Ombudsman Dr. Kostelka advocated for the right to a pension of an Upper Austrian mother of five who suffers from a rare, incurable stiff-man syndrome in her arms and legs. He referred to the fact that during the ongoing court proceedings neither the expert witness nor the defendant, which is the Pension Insurance Institution, has even taken into consideration clear diagnostic findings of the hospital Wagner-Jauregg, which diagnosed the stiff-man syndrome. He demanded that the opinions of specialized neurological experts should be followed up and that it should be possible to correct primary misinterpretations of medical expertise during the court proceedings. As a result of the broadcast of the programme a rapid new examination was conducted and with the support of the Chamber of Labour of Upper Austria a settlement concerning the award of the pension could be concluded. In the meantime, the complainant also receives nursing allowance. Therewith, after years of fear and living with allegations that she was only obese and hypochondriac, at least her financial worries could be decreased.