Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30465/96

by Johann HAAS

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 December 1995

by Johann HAAS against Austria and registered on 15 March 1996 under

file No. 30465/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian national, residing in Schärding.

Before the Commission he is represented by Mr. Koch, a lawyer

practising in Linz.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

In 1982 the applicant acquired a group of companies which had

gone bankrupt. Subsequently, the applicant re-organised the group and

tried to make them profitable again. Although he invested considerable

sums between 1983 and 1985, he soon faced financial difficulties which

in 1986 lead to the introduction of bankruptcy proceedings concerning

most of his companies.

With regard to the applicant's attempts to save his business

criminal proceedings were instituted against him as he was suspected

of having built up an artificial financial network through numerous

transactions between different bank accounts which his companies had

held with different banks, in order to create the impression that his

companies still disposed of the necessary financial means and were

profitable and in order to obtain further credits from the banks.

On 20 December 1992 the Ried Public Prosecutor's Office preferred

a bill of indictment against the applicant. He was charged with

negligent bankruptcy (fahrlässige Krida) with regard to three

companies, four counts of fraudulent bankruptcy (betrügerische Krida),

three counts of fraudulent conversion (Untreue), six counts of

aggravated fraud (schwerer Betrug), two offences under the Tax Offences

Act and two counts of aggravated theft (schwerer Diebstahl). Inter

alia, the applicant was accused of having committed aggravated fraud

(schwerer Betrug) to the detriment of the N. Savings Bank, a German

bank, whereby the latter suffered prejudice of DEM 2.000,000.

The Public Prosecutor's Office considered that in June 1985 the

applicant had drawn a crossed cheque of DEM 2.000,000 on his account

with the N. Savings Bank and had presented this cheque to the R.R. Bank

in order to be credited to an account held by one of his companies, the

A.K. limited company. The R.R. Bank had initially credited the cheque

to the account, but had subsequently sent it back to the N. Savings

Bank, since the latter had refused payment. On 18 June 1985 the

applicant therefore had contacted J.R., the executive manager of the

N. Savings Bank, and had falsely informed him that he needed this sum

in order to pay some cars which he intended to export. The applicant

had pretended that he would use his profits to pay back the loan

granted by the N. Savings Bank which amounted to DEM 15.000,000. In

reality, the applicant had needed this money to cover the account held

by the A.K. limited company with the R.R. Bank, as he had drawn some

cheques on the account held by the A.K. limited company in order to

cover several other accounts in other banks. As J.R. had subsequently

transferred the money to the R.R. Bank, the N. Savings Bank had

suffered prejudice in the amount of DEM 2.000,000.

The applicant's case came up for trial before the Ried Regional

Court (Landesgericht) which held altogether sixteen court hearings

between 21 September and 16 December 1993. At the trial the applicant

was assisted by two defence counsels.

On 28 September 1993 J.R., the executive manager of the N.

Savings Bank, was heard as a witness on the events in relation to the

transfer of DEM 2.000,000 to the R.R. Bank. J.R. had meanwhile, on

4 March 1991, been convicted of fraudulent conversion (Untreue) by the

Nürnberg-Fürth Regional Court (Germany) for having transferred the

money to the R.R. Bank. In view of this conviction J.R. did not rely

on his right not to give evidence. In the course of the hearing the

witness was questioned about this conviction and stated that he had

been charged with having acted beyond his powers and that this conduct

constituted fraudulent conversion (Untreue). He admitted that he would

have had the obligation to submit the check issued by the applicant for

approval to a special board of the bank. He furthermore stated that

the applicant was a problematical client and that the credit limits

granted by the bank had already been overdrawn at the time of the

transfer.

On 16 December 1993 the Ried Regional Court convicted the

applicant of negligent bankruptcy, three counts of aiding and abetting

fraudulent conversion, aggravated fraud and one offence under the Tax

Offences Act. Taking into account two previous convictions the Court

sentenced the applicant to an additional sentence (Zusatzstrafe) of two

years, nine months and twenty days' imprisonment and a fine of

ATS 2.000,000. One count of the conviction related to the transfer of

the amount of DEM 2.000,000 by J.R. to the R.R. Bank. In this respect

the Regional Court considered the facts as submitted by the Public

Prosecutor's Office as proven, but unlike the Public Prosecutor's

Office, qualified them as aiding and abetting fraudulent conversion.

The Regional Court found that the applicant had knowingly induced J.R.

to abuse his power granted by the N. Savings Bank by transferring the

sum in question to the R.R. Bank, which had resulted in prejudice

caused to the N. Savings Bank. J.R.'s conduct therefore constituted

fraudulent conversion, which was also confirmed by a judgment given by

a German Court which had convicted J.R. on the basis of the same facts.

The applicant had known that J.R. abused his power as shown by previous

discussions between the applicant and the bank about the impossibility

of obtaining further credits.

On 14 February 1994 the applicant filed a plea of nullity and an

appeal against the sentence (Nichtigkeitsbeschwerde und Berufung). He

complained, inter alia, that the Regional Court had convicted him of

fraudulent conversion, while he had been indicted for fraud.

On 27 April 1995 the Supreme Court (Oberster Gerichtshof) quashed

the applicant's conviction in relation to two counts of fraudulent

conversion, one count of aggravated fraud and the offence under the Tax

Offences Act and referred the case back to the District Court for

fixing a new sentence. It confirmed the remaining convictions

including the one of fraudulent conversion in relation to the transfer

of DEM 2.000,000 to the R.R. Bank.

In this respect the Supreme Court found that the account of the

factual circumstances on the basis of which the applicant had been

indicted contained already all the relevant contacts between him and

the bank. The act for which the applicant was indicted and of which

he was then convicted was therefore identical, although in the legal

qualification the elements of fraud were replaced by aiding and

abetting fraudulent conversion. The Supreme Court noted that during

the trial the criminal proceedings against J.R. and J.R.'s conviction

by a German Court of fraudulent conversion had been discussed. The

applicant, assisted by two defence counsels, therefore must have been

aware of the possibility of a different legal qualification of his acts

and did have the possibility to adapt his defence strategy also with

regard to this qualification of his acts. Furthermore, according to

the law, the maximum sentence for fraudulent conversion was not more

severe than the maximum sentence for fraud.

Insofar the applicant had argued that J.R. had been convicted of

fraudulent conversion under the German Penal Code and that according

to German law only dolus eventualis (bedingter Vorsatz) was required

while the Austrian Penal Code required "acting with knowledge"

(Wissentlichkeit) as a condition for a conviction of the corresponding

offence , the Supreme Court stated that the Regional Court had to

assess this question according to domestic law. As the Regional Court

had not only relied on the German judgment, but had set out reasons why

J.R. had acted knowingly, the Supreme Court rejected this complaint.

COMPLAINTS

The applicant complains that he was convicted of fraudulent

conversion although in the bill of indictment he had been charged with

fraud. As the Regional Court had not informed him about the possible

conviction of fraudulent conversion, he did not have a fair trial, he

was not duly informed about the nature and the cause of the accusation,

did not have adequate time to prepare his defence and did not have the

possibility to question again the witness under the new qualification

of the act. He invokes Article 6 paras. 1 and 3 (a), (b) and (d) of

the Convention.

THE LAW

The applicant complains of the alleged unfairness of the trial

against him. He relies on Article 6 paras. 1 and 3 (a), (b) and (d)

(Art. 6-1, 6-3-a, 6-3-b, 6-3-d) of the Convention, which, insofar as

relevant, reads as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law. ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

b. to have adequate time and facilities for the

preparation of his defence;

...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him ..."

The Commission finds it appropriate to examine the applicant's

submissions from the angle of paragraph 1 taken together with the

principles inherent in paragraph 3 of Article 6 (Art. 6-3), as the

guarantees in paragraph 3 are specific aspects of the general concept

of a fair trial set forth in paragraph 1 (Eur. Court HR, Unterpertinger

v. Austria judgment of 24 November 1986, Series A no. 110, p. 14, para.

29).

As regards the applicant's complaint that he was not duly

informed about the charge of fraudulent conversion, the Commission

recalls that an accused person has the right to be adequately informed

of the cause and the nature of the accusation in order to enable him

to prepare his defence accordingly. The information must relate to the

material facts alleged against the accused and their legal

qualification (No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106; Eur. Court

HR, Brozicek v. Italy judgment of 19 December 1989, Series A no. 167,

pp. 18-19, paras. 38-42).

The Commission considers that already at the beginning of the

trial on 28 September 1993, J.R., the main witness in respect of this

charge, was questioned in detail by the court and the fact that in

relation to the same facts this witness had been convicted of

fraudulent conversion by the Nürnberg-Fürth Regional Court was

discussed before the court. The applicant, who was assisted by two

defence counsels, therefore should have been aware of a possible re-

classification of the acts in the light of the specific evidence taken

and could have adapted his defence strategy accordingly.

In these circumstances there is no indication that the applicant

was not adequately informed about the nature of the accusation against

him to the extent necessary to prepare his defence and exercise his

defence rights.

The Commission also finds that for the same reasons there is no

indication that the applicant did not have sufficient time to prepare

his defence or that he could not have questioned the witness with

regard to the new qualification of the act.

Consequently, there is no appearance of a violation of the

applicant's defence rights under Article 6 paras 1 and 3

(Art. 6-1, 6-3) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HAAS v. AUSTRIA

HAAS v. AUSTRIA

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