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this website] American Free
Press
Thursday, December 28, 2006
David
Irving is Back in London He
was Railroaded into Jail by his own
Attorney by George
Kadar AFP/TBR - The revisionist
community was pessimistic concerning the upcoming
appeal of Mr. David Irving to be heard on
December 20 in Vienna. The only person I know who
was optimistic about the appeal was Dr. Herbert
Schaller, Irving's new attorney. Mr. Irving was arrested and kept in jail since
November 11, 2005, in Vienna. His appeal was
delayed and finally he was released on December 21,
2006. At his original trial (on February 20, 2006)
Irving received a three-year sentence and there is
every indication that his attorney at the time Dr.
Elmar Kresbach (Schottengasse 4, 1010 Vienna, Tel.:
43-1-533 26 90, Fax: 43-1-533 27 90) prospered the
case of the government, instead of properly
defending Irving.  After
arriving in Vienna in the Krokodil, the
closed prison van, from Graz--Jakomini jail, Mr
Irving was stormed by lawyers; he initially
selected Dr Herbert Schaller, (at right), a
veteran who had defended him in the 1980s and 1990s
in Germany.
Before he could return to his cell, the young,
stylish Dr Elmar Kresbach intercepted him
and persuaded him to release Schaller and hire him
instead ("I am a man with the media contacts you
need") -- "One of the biggest mistakes of my life,"
says Irving now. Over the next months Kresbach pretended - that he had a back door to the Judge, Dr
Peter Liebetreu, and
- that the judge was favourable and
- that the historian would be released on the
day of the trial.
When that day came however Kresbach, who had
prepared no speech and carried no papers with him
into the courtroom, Austria's biggest, made no
attempt to defend his client other than a brief,
waffled, discussion on the law which went clean
over the jury's heads (seven of the eight were
stone-faced middle aged housewives). Dr Schaller
sat in the public gallery, aghast at Kresbach's
bumbling performance. After the sentencing of David Irving the
courtroom, packed with representatives of the
international media, erupted in a spontaneous
celebration. Kresbach became the instant darling
and focus of attention. His posture seemed in retrospect inexplicable.
To Mr Irving he said in congratulation the next
day: "Now you are a martyr." Irving dryly
advised him that that was not what he had been
engaged for. To a television crew from England,
Kresbach stated in clear English, on camera: "I think the three years sentence for
Mr. Irving was too long. I think that two years
would have been the proper sentence." In press interviews he described Mr Irving as
old, worn out, defeated, beaten. The trial was a
mockery of justice, where Irving in fact had no
effective legal representation. 
THE written judgment was received a month after the
February 20 sentence. Appeal papers had to be filed
by April 22. On the Thursday before Easter,
Kresbach admitted he had done nothing to prepare
the appeal, telling Mr Irving as an afterthought,
"My assistant is starting work on that this
afternoon." The prisoner pointed out that next day
was Good Friday, then the Easter weekend, and the
papers had to be filed by Thursday morning: "You're
fired."
He had already re-hired Dr Herbert Schaller to
replace the feckless Kresbach; the veteran lawyer
worked throughout Easter and produced the appeal
document in time. In the prison exercise yard Mr
Irving met several other prisoners similarly
unhappy with their costly attorney Kresbach's
performance. His office was apparently in chaos. Monetary
contributions, costly birthday gifts from family
and friends, and letters handed over to him never
made the last few yards to Irving or his outside
representatives (these objects are still missing).
Irving sent two letters to Kresbach, and finally an
ultimatum to forward his property to him. It never
came. Irving eventually lodged two formal
complaints with the Rechtanwaltskammer in Wien, the
attorneys' professional body in Vienna, who are
investigating his complaints. Maybe it is no accident that Der Spiegel,
the leading German language news magazine, called
Dr. Kresbach a "mafia lawyer" before the trial. Dr. Schaller prepared a very detailed appeal,
pointing to the serious shortcomings of the defense
at the original trial; in a December 26, 2006
interview with Dr. Schaller in Vienna he repeated
that "Irving had no real defense at his February
trial." The appeal he formulated questioned whether
Irving was guilty at all and it also challenged the
length of the sentence (three years). - At the time (1989) when Irving committed his
alleged "crime" there was only a very vague,
generalized law on the statute books, and it did
not mention "Holocaust denial". This law dated
back to 1945 and was written while Austria was
still under Soviet Russian occupation. Later, in
1992, three years after the Irving speeches, a
new law was created and incorporated into the
Austrian Constitution, specifying "Holocaust
denial" as a crime (namely committed by "whoever
denies, grossly plays down, approves or tries to
excuse the National Socialist genocide or other
National Socialist crimes against humanity in a
print publication, in broadcast or other
media"). The law calls for a prison term of up
to ten years, and a later version of the law
allows sentences of five to twenty years and
even life imprisonment for repeat
offenders.
- Before his 1989 trip to Austria, David
Irving's attorney had actually contacted the
Ministry of Internal Affairs of Austria, and
specified his intended topics and itinerary.
(The contact was established through Dr.
Schaller, his present attorney). The Austrian
authority cleared Mr Irving's intentions
including, as one item, the discussion of the
"Holocaust" in the light of The Leuchter
Report and the latest independent research.
BY mutual agreement, the police posted an
official at each lecture, who reported that Mr
Irving had not broken the law. Kresbach never
even brought this curious issue to the attention
of the eight member jury at the trial.
- Under Austrian law the defense attorney had
the opportunity to ask the jury if in their
opinion the defendant did or did not violate the
law knowingly. Dr. Kresbach missed out on
this major opportunity to demonstrate the
innocence of his English client, hardly a
"mistake" that a seasoned defense attorney would
normally make. By law, Dr Schaller could not
however challenge the conviction of the Jury in
his appeal to the Austrian Supreme Court (OGH)
because the above question was not put to the
jury by Kresbach as defense attorney or by the
Presiding Judge.
Regardless, in Dr. Schaller's opinion the
Supreme Court of Austria is in error in their
decision because the three judges who tried Irving
had full knowledge of the fact that Irving
contacted the Ministry of Internal affairs about
his planned activity in 1989. It was in the "court
file." Kresbach and the judges also systematically
misled the jury members when they kept repeating
that Irving "denied the Holocaust" in many
countries over the next twenty years. Even if
Irving did that, -- and he did not -- he was
operating in foreign countries outside the
jurisdiction of Austria. AS a result of this latest appeal court's
decision Irving will not be permitted to visit
Austria for at least ten years and he will have to
live with a conviction and a twelve-month suspended
sentence; this is perhaps not a real problem in
England or the USA, as it is classified as a purely
political ("media") crime, not a real offence. - In the opinion of Dr. Schaller the appeal
hearing of December 20 was perhaps delayed to
prevent Mr Irving from attending the recent
Holocaust Conference held in Iran on December
11. (In fact he was not invited, and would not,
he says, have attended). Dr. Schaller does not
believe that either the large-scale publicity or
public opinion played any role either way in the
release of Mr. Irving.
- It is very interesting to note that in the
opinion of Dr. Schaller, who is also involved in
the defense of Ernst
Zündel and Germar Rudolf in
Germany, the German authorities have initiated
about 10,000 cases in a single year for the
various "crimes" of "Holocaust denial",
different expressions of nationalism, illegal
use of second war symbols, and other verbal and
written expressions and publications of
political incorrectness. It seems that the
German State carries out a secret war against
her own citizens, based on the prior models
provided by the communist countries, pre
1989.
 The
international and Austrian media were shell-shocked
by Mr Irving's triumph at the appeal hearing and
the presiding judge, Ernst Maurer was
immediately subjected to vicious personal attacks
(of the kind that would constitute a serious
contempt of court in England).
The Austrian media reported hours after the
appeal hearing that the prosecution lawyers could
attempt to file new charges within days based on
the BBC and press interviews that Irving gave in
February from his prison cell. Irving welcomed his release and declared that he
was "fit and well." "I was put in prison for three
years for expressing an opinion seventeen years
ago," he said. Even then the Austrian authorities
did not allow him to leave on his own, they
kept
him under arrest for one more day until they
could put him on a flight to London on the evening
of December 21; while Austria pays the fare of
every Black drug dealer who is deported, they made
Mr Irving pay over one thousand dollars for his
one-way ticket back to London. At a big press conference after his return to
London he announced that he is calling for an
"academic boycott against German and Austrian
historians until their governments stop putting
historians in prison". Irving's traditional opponents were fast to
voice their dismay at his release:  - Efraim Zuroff, the head of Jerusalem's Simon
Wiesenthal Center stated that the court's
decision would "only encourage and strengthen
the 'Holocaust deniers' throughout the world".
He also stated to Reuters: "If you have such a
law then, for God's sake, just stick to
it."
- Veteran Jewish activist from London, Lord
Greville Janner, left, vice-president of
the World Jewish Congress and president of the
Commonwealth Jewish Council said:
- "I am sorry that he did not serve out his
full term, and I hope he will remain in Austria
and not return to the United Kingdom, where he
will not be welcome." (Janner, left, is an
immigrant, Mr Irving's family have lived in
England for centuries).
David
Irving imprisoned in Austria: dossier:
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