Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30564/96

by L. W. A.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. S. TRECHSEL

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 5 March 1996 by

L. W. A. against Switzerland and registered on 25 March 1996 under

file No. 30564/96;

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, a Canadian citizen born in 1943, is a businessman

residing at Tuggen in Switzerland. Before the Commission he is

represented by Mr Schmidhäusler, a lawyer residing in Lachen in

Switzerland.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1986 the applicant was remanded in custody in Berlin. In 1987

the Berlin Regional Court (Landgericht) sentenced him to 33 months'

imprisonment on the grounds of credit fraud and disloyal conduct

(Kreditbetrug und Untreue).

At the relevant time, the applicant was a member of the board of

the Swiss company Südtreuhand AG where he had the power to sign.

Immediately after his arrest in 1986 he authorised his wife to withdraw

300'000 Swiss Francs (CHF) from a bank account in Switzerland belonging

to the Südtreuhand AG.

The applicant was charged in Switzerland with the offence of

embezzlement (Veruntreuung) in that he had enriched himself by using

part of the amount withdrawn for the court proceedings in Germany.

In the ensuing proceedings before the Criminal Court

(Strafgericht) of the Canton of Schwyz, the applicant claimed that he

had paid the business expenses of another company, the Südbau AG (later

called Crédit Sud). Thus, the Südtreuhand AG owed the Südbau AG

3 million CHF. The applicant had placed the 300'000 CHF at issue with

the ready cash (Kassa) of the Südbau AG which was kept at his home.

The applicant had instructed his wife to pay, from this amount,

lawyers' and telephone bills in the interests of the Südbau AG as well

as clients' debts. The remainder of the money had been handed out to

him, the applicant, upon his return to Switzerland in 1987.

The applicant's wife stated that she had paid company lawyers;

she had transferred a certain sum to Berlin where, she believed, the

money served to pay lawyers working for the Südtreuhand AG.

Another witness, D.G., stated before the Criminal Court that the

applicant's wife had told him that the money belonged to the applicant

and was needed for the court proceedings in Germany.

At the trial the Criminal Court decided not to order the

preparation of an expert opinion concerning the withdrawal of the

300'000 CHF concerned. In the Court's view, a short opinion would

serve no purpose, and an extensive opinion would be disproportionate

and unnecessary since the applicant's wife had already made extensive

statements before the Court.

On 28 January 1994 the Criminal Court of the Canton of Schwyz

convicted the applicant of embezzlement in respect of the amount of

170'000 CHF, while refraining from imposing an additional sentence to

that imposed by the Berlin Regional Court. In its decision the Court

relied on the statements of the applicant, his wife and D.G. and on the

fact that the applicant had not been able to substantiate that he had

not employed the money for his own purposes. In this regard it

considered the various receipts which the applicant had submitted in

respect of his expenses.

The applicant filed an appeal (Berufung) with the Schwyz Cantonal

Court (Kantonsgericht) in which he also requested the hearing of

certain witnesses and the preparation of an expert opinion which would

determine the amounts owed by the Südtreuhand AG to the Südbau AG. The

applicant later also submitted a letter from Crédit Sud (formerly

Südbau AG) dated 6 March 1995 which stated:

"The accused was expressly authorised by our company freely to

spend the 300'000 CHF forming part of the assets of our society

for the defence of the criminal proceedings personally directed

against him abroad."

"Der Beschuldigte war von unserer Gesellschaft ausdrücklich

autorisiert, die zum Vermögen unserer Gesellschaft gehörenden CHF

300'000 beliebig für die Verteidigung des gegen ihn persönlich

gerichteten Strafverfahrens im Ausland einzusetzen."

On 7 March 1995 the Cantonal Court confirmed the judgment of the

Criminal Court while imposing three months' imprisonment in addition

to the sentence imposed by the Berlin Regional Court. In its decision

the Court found that, of the 300'000 CHF withdrawn, 130'000 CHF could

be regarded as having been spent for the company. On the other hand,

the applicant had not been able to substantiate that he had used the

remaining 170'000 CHF for the company; the receipts presented were

unclear in this respect. For instance, the applicant's medical

insurance bills, or legal costs in proceedings against the Südtreuhand

AG, could not be considered as company expenses. Moreover, D.G. had

testified that the applicant's wife had told him that the money was to

be used for the applicant's defence in Berlin.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court (Bundesgericht) in which he

referred, inter alia, to the letter from Crédit Sud of 6 March 1995.

On 18 July 1995 the Federal Court dismissed the applicant's

public law appeal, the decision being served on 6 September 1995.

In its decision, the Federal Court dealt, inter alia, with the

applicant's complaint that the Cantonal Court had not ordered the

preparation of an expert opinion as to the claims of the Südbau AG

against the Südtreuhand AG, and that certain persons of the Südbau AG

had not been heard as witnesses. The Federal Court stated, with

reference to the judgment of the Cantonal Court:

"the existence of a claim of the Südbau AG would only be of

relevance if the applicant had used the money withdrawn in the

interest of this company. At least part thereof, however, he

used for private purposes ... The Cantonal Court could therefore

refuse the preparation of an expert opinion as well as the

hearing of the liquidators of Crédit Sud, as these two elements

of evidence were not important for the conviction."

"das Bestehen einer Forderung der Südbau AG (wäre) nur dann von

Bedeutung ..., wenn der Beschwerdeführer das abgehobene Geld im

Interesse dieser Gesellschaft verwendet hätte. Zumindest einen

Teil davon habe er jedoch für private Zwecke verwendet ... Das

Kantonsgericht konnte demnach sowohl auf die Anordnung eines

Gutachtens wie auch auf die Einvernahme der Liquidatoren der

Crédit Sud AG verzichten, da diese beiden Beweise für die

Verurteilung nicht erheblich waren."

COMPLAINTS

The applicant complains under Article 6 paras. 1 and 3 (d) of the

Convention that the courts refused his request for the preparation of

an expert opinion to demonstrate that the Südbau AG had a credit

balance vis-à-vis the Südtreuhand AG.

Also under Article 6 paras. 1 and 3 (d) of the Convention the

applicant complains that the courts did not consider evidence which he

submitted, in particular the letter of 6 March 1995 from Crédit Sud,

according to which he was entitled to spend 300'000 CHF as he wished.

The applicant submits that if the courts doubted the contents of this

letter, they should have heard the relevant witnesses.

Under Article 6 paras. 1 and 2 of the Convention the applicant

complains of the manner in which the courts considered that he had not

used the money for the Südbau AG.

Finally, the applicant complains under Article 6 paras. 1 and

3 (d) of the Convention that the courts did not examine his argument

according to which the money for his defence costs came from the sale

of his house and not from the money withdrawn from the Südbau AG.

THE LAW

The applicant raises various complaints about the criminal

proceedings in which he was involved. He relies on Article 6 paras. 1,

2 and 3 (d) (Art. 6-1, 6-2, 6-3-d) of the Convention which state,

insofar as relevant:

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

him, everyone is entitled to a fair ... hearing ...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following

minimum rights: ...

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 ..."

Insofar as the applicant may be understood as complaining of the

outcome of the proceedings, the Commission recalls that, in accordance

with Article 19 (Art. 19) of the Convention, its only task is to ensure

the observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set out

in the Convention. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18, pp. 31, 45).

It is true that the applicant also complains of the unfairness

of the proceedings. He complains in particular that the domestic

courts refused his request for the preparation of an expert opinion to

demonstrate that the Südbau AG had a credit balance. Moreover, the

courts disregarded evidence which he submitted, in particular the

letter of 6 March 1995 from Crédit Sud, according to which he was

entitled to spend 300'000 CHF as he wished. The applicant also

complains of the manner in which the courts considered that the

applicant had not used the money for the Südbau AG.

The Commission recalls the Convention organs' case-law that, as

a general rule, it is for the national courts to assess the evidence

before them. The Convention organs' task is to ascertain whether the

proceedings considered as a whole, including the way in which evidence

was taken, were fair (see Eur. Court HR, Asch v. Austria judgment of

26 April 1991, Series A no. 203, p. 10, para. 26; Klaas v. Germany

judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).

In the present case, the Commission sees no indication that the

applicant could not put forward his point of view or that the

proceedings were otherwise unfairly conducted. Thus, the domestic

courts examined the relevant evidence. They relied in particular on

statements of the applicant, his wife and the witness D.G., who related

a conversation with the applicant's wife. They also considered the

various receipts which the applicant had submitted in respect of his

expenses and found, for instance, that the applicant's medical

insurance bills could not be considered as company expenses. It was

also considered that an expert opinion was unnecessary in view of the

other evidence available.

Insofar as the applicant complains that the Courts did not

consider the letter from Crédit Sud of 6 March 1995, the Commission

notes the Federal Court's decision of 18 July 1995 according to which

the hearing of witnesses of Crédit Sud was unnecessary as, even if the

former Südbau AG had had claims against the Südtreuhand AG, this would

only be relevant if the applicant had used the money in the interest

of the company; however, at least part thereof he had used for private

purposes.

Finally, the applicant complains that the courts did not examine

his argument according to which he had sold a house for which reason

he could afford to pay his defence costs.

It is true that Article 6 para. 1 (Art. 6-1) of the Convention

obliges the courts to give reasons for their judgments. However, this

provision cannot be understood as requiring a detailed answer to every

argument. Nor are the Convention organs called upon to examine whether

arguments have been adequately met (see Eur. Court HR, Van de Hurk v.

Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, para.

61; Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-

A, p. 12, para. 29).

In the present case, however, the Commission considers that the

courts gave sufficient reasons to explain why the conditions of

embezzlement had been met in the applicant's case, for which reason it

does not appear unfair that they regarded it unnecessary to examine

further whether the applicant had other financial sources at his

disposal.

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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L.W.A. v. SWITZERLAND

L.W.A. v. SWITZERLAND

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