Although he was killed by police at the scene, the man who supplied the weapons and hundreds of rounds of ammunition – Marsel Ostrš – will not be going to jail thanks to mistakes made during the investigation, according to a report by Dossier and Oštro.
Police say that five months before the attack, the Slovenian sold Fejzulai the assault rifle and pistol used in the attack. While transporting the weapons to Fejzulai, police believe Ostrš hid them in his daughter’s child seat, as they later found the three-year-old girl’s DNA on the rifle.
Two other facilitators of the attack received lengthy sentences.
Adam Makhaev, who helped arrange the sale, was sentenced to life in prison, the maximum sentence under Austrian criminal law. Ishaq Farag Shahin, Fejzulai’s childhood friend and the man who connected Ostrš with Makhaev, received a 19-year sentence.
But, through a series of legal mishaps, Ostrš will never spend a second behind bars.
In the terrorism case against Fejzulah and his associates, prosecutors mistakenly removed the assault rifle that Ostrš sold him in order to include it in another case involving Ostrš. However, that other case was later - also mistakenly - dropped. As a result, one of the murder weapons was left out of all proceedings.
That meant that before the trial could even get underway, Ostrš could only be charged for the sale of the pistol and its 35 bullets. A spokesperson for the prosecutor’s office later conceded that the omission of the assault rifle–a critical piece of evidence–was a “mistake.”
The case against Ostrš was further bungled by both Slovenian and Austrian authorities, Dossier and Oštro said.
For example, Ostrš’ home in Slovenia was not searched. When police asked him to surrender his phone, he did so – but they later discovered he had been using seven other numbers. They also failed to confiscate any other electronic devices.
Asked why Ostrš’ house in Slovenia was not raided, the Vienna State Prosecutor’s Office said “the conditions for an arrest or house search were not met, as the investigation did not show that the suspect could be linked to terrorism.”
The trial in Austria in May lasted less than an hour. Ostrš admitted to selling the pistol used in the attack, but added that he did not know at the time what Fejzulai intended to use it for.
During the pre-trial investigation, Ostrš described himself as unemployed, “a businessman without a job.” Despite this, he and his partner, a kindergarten teacher, own two BMW vehicles, a station wagon and a sedan, and a motor boat. They often travel.
Investigators with Austria’s State Office for the Protection of the Constitution and Combating Terrorism (LVT), however, determined “with a probability bordering on certainty” that he is embedded in the arms trade.
Prior LVT investigations further linked Ostrš to arms trafficking, including a separate incident three months before Fejzulai’s attack. Though the sale ultimately fell through the prospective buyer identified Ostrš as the seller after police showed a photo of him.
Ultimately, Ostrš received a suspended nine-month sentence for selling the pistol and its ammo.
Criminal law expert Ingeborg Zerbes, who led the investigation into how the terrorist attack succeeded, said it was “noticeable that the arms dealer was treated differently [than] other suspects in this process.” Indeed, authorities arrested 20 people in this case and made 30 house searches.
As Ostrš said in court, “If it was at all possible, I would undo these actions and not act so naively again.”
