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RASSY v. AUSTRIA

Doc ref: 21345/93 • ECHR ID: 001-1922

Document date: September 2, 1994

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Cited paragraphs: 0
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RASSY v. AUSTRIA

Doc ref: 21345/93 • ECHR ID: 001-1922

Document date: September 2, 1994

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 21345/93

by Albert RASSY

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 26 January 1993

by Albert RASSY against Austria and registered on 8 February 1993 under

file No. 21345/93;

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 citizen, born in 1950 and living in

Baden (Austria). Before the Commission, he is represented by Mr. F.

Schwank, a lawyer practising in Vienna.

The facts, as they have been submitted by the applicant, may be

summarised as follows.

On 26 March 1992 the Vienna Regional Court (Landesgericht)

convicted the applicant of professional grave fraud and sentenced him

to a three years' prison term.

The Regional Court found that the applicant had fraudulently

withdrawn between 28 August 1985 and 9 August 1989 in several

instalments the total amount of US-$ 220,500 and AS 4,479,000 from the

banking account of Mr. Y. In this respect, the Court had regard to a

graphological expert opinion, procured upon the applicant's request,

according to which the signatures giving the applicant banking

authority had not been done by Mr. Y. and to the statements of several

witnesses, including Y. and witnesses on behalf of the applicant. The

Court therefore dismissed the applicant's request to examine further

witnesses on the question of the applicant's banking authority and his

request to order an opinion of a book-keeping expert on the likelihood

of other causes for the different value on Y.'s account, such as

exchange-rate losses, as irrelevant.

On 4 August 1992 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity (Nichtigkeitsbeschwerde) and

referred the applicant's appeal against sentence to the Vienna Court

of Appeal (Oberlandesgericht).

The Supreme Court found that the Regional Court based on the

evidence taken, in particular the statements of the witnesses and the

graphological expert opinion according to which the signature on the

banking authority was forged, had convincingly concluded that the

applicant had not been authorized to withdraw money from Y.'s bank

account. In these circumstances, the Regional Court had rightly refused

to take the evidence requested by the applicant, as he had failed to

indicate to what extent the requested witnesses could at all make

relevant statements on a banking authority given to the applicant which

would concern the internal relationship between the applicant and Mr.

Y. Furthermore, the Supreme Court found that the requested opinion of

the book-keeping expert on possible exchange-rate losses was of no

relevance as it could not explain the huge difference between the

actual and required value on the account.

On 19 October 1992 the Vienna Court of Appeal partly granted the

applicant's appeal and ordered that part of the sentence be imposed on

probation.

COMPLAINTS

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

Convention about the refusal to examine the requested witnesses on his

behalf and to order the procurement of the opinion of the book-keeping

expert.

THE LAW

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

(Art. 6-1, 6-3-d) of the Convention about the refusal to examine the

witnesses on his behalf and to order the procurement of the opinion of

the book-keeping expert.

The Commission recalls that Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention does not give an absolute right to the

examination of every witness proposed by the defence (Eur. Court H.R.,

Engel and others judgment of 6 June 1976, Series A no. 22, p. 38,

para. 91; Bricmont judgment of 7 July 1989, Series A no. 158, p. 31,

para. 89). In particular a court is justified in refusing to summon

witnesses when it considers that their statements could not be of any

relevance to the case (No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86).

In the present case, the Austrian courts dismissed the

applicant's requests to take further evidence on the grounds that he

had failed to show conclusively that the witnesses named by him could

give any relevant information for the proceedings at issue. Moreover,

they found that exchange-rate losses could not have caused the

important difference between the actual and required value on Y.'s

account and that, thus, the opinion of a book-keeping expert was

unlikely to provide any further relevant information.

In these circumstances, the Commission finds no indication that

the Austrian courts failed to consider relevant evidence or acted in

an arbitrary and unfair manner.

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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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