Soldier in SS uniform – For extenuating reasons, only a fine has been requested

Defense Secretary Klaudia Tanner (ÖVP) announced in the National Council on Thursday evening that she would set up a committee next week to “Combat Anti-State Tendencies”. This is to work out the necessary legal measures to prevent such cases – amendment of the Civil Service Act and the Criminal Code.

Tanner’s “repentance” came “far too late,” SPÖ defense spokesman Robert Laimer said Friday. “The minister should have intervened much earlier and issued a directive to the disciplinary lawyer to demand the officer’s resignation,” he said. “The minister has had her chance to speak out.” A change in the law was necessary, “because of course you can’t rely on certain ministers to do their homework,” said Laimer.

The Federal Disciplinary Council recognized the Oberstabswachtmeister – as reported – on 15 September “guilty” of the National Socialist reactivation. As a result, in November of the previous year, the sergeant was “temporarily relieved of his duties with immediate effect (…)”, the file was submitted to the Disciplinary Board, as evidenced by the decision of the Federal Disciplinary Board Authority, which is available for the APA. In July, a regional court eventually sentenced the soldier to a 10-month suspended prison term and a fine of 1,200 euros. Following the disciplinary complaint, the disciplinary court has scheduled a hearing for mid-September.

“Repentant Confession”
There, according to the decision, the suspect made “an extensive and remorseful confession”. “He credibly claimed that he was very sorry and that such unacceptable behavior would not happen again.” The crimes were committed under the influence of alcohol, the soldier claimed, “he distances himself from the atrocities of National Socialism and has nothing to do with it”. He “probably took the fireworks home after a practice and forgot about them”. The battalion commander testified to the defendant’s “satisfactory service” in the proceedings and that there had been no disciplinary misconduct to date.

The disciplinary lawyer appointed by the department pointed to the possibility of dismissal, but ultimately only demanded a fine of just under 5000 euros: “The disciplinary lawyer of the BMLV (DiszAnw) stated in the closing words that the disciplinary judge had intentionally infringed his official duties by his actions,” according to the decision. “According to the case law of the VwGH, the disciplinary penalty of dismissal may be considered for loss of loyalty. At least for general preventive reasons, but in this case a fine is sufficient.” The criminal court, argued the disciplinary lawyer, could have caused the loss of office with a prison sentence of more than a year, but has waived it.

Positive Future Forecast Localized
When assessing the sanction, “a very serious breach of official duties must be assumed”, since the employer would not tolerate a National Socialist reactivation, the disciplinary lawyer further argued. However, the special preventive aspects would lag behind reasonable behavior and the genuine intention to improve, and there was also a positive prognosis for the future.

Various mitigating factors
The disciplinary court ultimately followed this line of reasoning. The commission assessed “multiple violations of official duty” as “aggravating punishment”, but also cited some mitigating reasons: a penitent confession, distancing, impeccability, previous service and a positive outlook for the future. The amount of the fine referred to the “taxable economic capacity”, the duty of care for five children and the serious illness of his wife. The soldier was eventually sentenced to a fine of EUR 4,320 (and a contribution to the costs of EUR 360). He “may see the lenient sentence as a leap of faith that he will abstain from such dereliction of duty in the future.”

According to the ministry, the person concerned is now “used in a non-military function as part of his official relationship”.