Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19570/92

by Rudolf HEGGLI

against Liechtenstein

The European Commission of Human Rights (First Chamber) sitting

in private on 31 March 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

Mr. M. PELLONPÄÄ

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 3 December 1991

by Rudolf HEGGLI against Liechtenstein and registered on 2 March 1992

under file No. 19570/92;

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

applicant, may be summarised as follows.

The applicant, born in 1949, is a Swiss national and resident at

Ruggell in Liechtenstein. He is a businessman by profession. Before

the Commission he is represented by Mr. W.E. Seeger, a lawyer

practising in Schaan.

A. Particular circumstances of the present case

On 1 December 1989, following a first set of trial and successful

appeal proceedings brought by the applicant, the Vaduz Criminal Court

(Kriminalgericht), having further taken evidence, convicted the

applicant of fraud under S. 146 of the Liechtenstein Penal Code in the

version of 1987 which had entered into force on 1 January 1989. He was

sentenced to three months' imprisonment on probation. The Vaduz

Criminal Court found that in 1982 the applicant had fraudulently

induced Mrs. S. to buy a carpet at a price by far exceeding its market

value and thereby caused damage of an amount of approximately

SFR 50,000.

Both the applicant and the Public Prosecutor's Office

(Staatsanwaltschaft) appealed against this judgment.

On 21 March 1990 the Vaduz High Court (Obergericht), upon the

appeal (Berufung) of the Public Prosecutor's Office, quashed the

Criminal Court's judgment and convicted the applicant of aggravated

fraud (schwerer Betrug) under SS. 146, 147 para. 2 of the Penal Code.

The applicant was sentenced to five months' imprisonment on probation.

The applicant's appeal was dismissed.

The High Court, in its reasoning, noted that, due to the short

period of prescription applying to simple fraud offences, the applicant

could no longer be prosecuted solely under S. 146 of the Penal Code.

The High Court found that the applicant had committed an

aggravated fraud in that he had caused a particularly serious damage

(besonders großer Schaden) within the meaning of S. 147 para. 2 of the

Penal Code. In this respect, the High Court proceeded on the findings

of the Criminal Court according to which the damage caused by the

applicant had not exceeded SFR 50,000 and considered that it had not

been less than SFR 40,000.

The High Court deviated from its earlier judgment where the

global value of stolen objects of between SFR 42,000 and SFR 45,000 had

not been regarded as particularly important value demanding a

conviction of aggravated theft. It stated that since the reform of the

Penal Code in 1987 there had been some uncertainty as regards offences

against property on the ground that no value limits had been included.

The High Court had regard to the travaux préparatoires according to

which a draft of 1984 had adopted the Austrian system of value limits

and classified simple cases of fraud with a damage not exceeding

SFR 1,000 and fixed SFR 20,000 as minimum limit for aggravated fraud.

However, such pecuniary limits had finally not been regarded as

appropriate, the Penal Code of 1987 circumscribed the aggravated fraud

with the term "particularly serious damage".

The High Court, taking into account the considerations at the

time of the reform and the penalty incurred in other offences against

property, considered that in the present case the limits towards

aggravated fraud had been passed.

On 15 October 1990 the Liechtenstein Supreme Court (Oberster

Gerichtshof) dismissed the applicant's appeal on points of law

(Revision).

The Supreme Court confirmed the findings of the High Court as to

the reasons of the Liechtenstein legislator not to qualify aggravated

cases of various offences on the basis of value limits. It considered

that, in order to afford the necessary protection in the area of fraud,

the term "particularly serious damage" had to be interpreted in an

economically reasonable manner. Such a reasonable criterion was the

yearly income of a worker or employee in an average professional

position. If a fraudulent act caused damage exceeding such an amount,

there was a particularly serious damage irrespective of the financial

situation of the victim concerned. This yearly income had amounted to

SFR 30,000 at the time of the offence in 1982, and amounted to

SFR 40,000 in 1990. The applicant had therefore correctly been

convicted of aggravated fraud.

Finally, the Supreme Court observed that the relevant provisions

of the Penal Code in force in 1982, the time when the applicant had

committed the fraud in question, had not been more favourable to him.

On 2 May 1991 the Liechtenstein Court of State (Staatsgerichts-

hof) dismissed the applicant's complaint (Beschwerde). The Court of

State found that the applicant's constitutional rights had not been

violated and that S. 147 para. 2 of the Penal Code of 1987 could not

be objected to from a constitutional point of view. The approach taken

by the Liechtenstein legislator, namely not to fix value limits in

order to qualify an aggravated case of fraud, but to refer to the term

of a "particularly serious damage" which had to be interpreted and

applied by the criminal courts, did not violate the principle of 'nulla

poena sine lege'. The interpretation of this term in the present case

did not appear arbitrary. This judgment was served on 4 June 1991.

B. Relevant domestic law

S. 146 of the Liechtenstein Penal Code, as amended in 1987 and

in force since 1989, provides that anybody who, by deception as to

facts and with the intention unlawfully to enrich himself or a third

person, induces a person to a specific behaviour, active or passive,

causing damage to this or another person's property, shall be punished

by imprisonment of a term not exceeding six months or by a fine not

exceeding 360 daily rates.

S. 147 para. 2 provides that anybody who commits fraud and

thereby causes a particularly serious damage ("wer durch die Tat einen

besonders grossen Schaden herbeiführt") shall be punished by

imprisonment of a term not less than one year and not to exceed ten

years.

COMPLAINTS

The applicant complains under Article 7 para. 1 of the Convention

that the term of a "particularly serious damage" in S. 147 para. 2 of

the Penal Code, qualifying the offence of aggravated fraud, lacked

sufficient precision.

THE LAW

The applicant complains under Article 7 para. 1 (Art. 7-1) of the

Convention about his conviction by the Vaduz High Court on 21 March

1990 of aggravated fraud within the meaning of S. 147 para. 2 of the

Liechtenstein Penal Code.

Article 7 para. 1 (Art. 7-1) of the Convention reads as follows:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national or international law at the time when it

was committed. Nor shall a heavier penalty be imposed than the

one that was applicable at the time the criminal offence was

committed."

In the sphere of criminal law Article 7 para. 1 (Art. 7-1)

confirms the general principle that legal provisions which interfere

with individual rights must be adequately accessible, and formulated

with sufficient precision to enable the citizen to regulate his

conduct. Article 7 para. 1 (Art. 7-1) prohibits in particular that

existing offences be extended to cover facts which previously clearly

did not constitute a criminal offence (cf. No. 13079/87, Dec. 6.3.89,

D.R. 60 p. 256).

The applicant was convicted by the Vaduz High Court, as confirmed

by the Supreme Court and the Court of State, of aggravated fraud

committed in 1982, under S. 147 para. 2 in conjunction with S. 146 of

the Liechtenstein Penal Code, as amended in 1987 and in force since

1989. Reflecting on the background of the reform of the penal

provisions in question, the Vaduz High Court, in its judgment of

21 March 1990, stated that the Liechtenstein legislator, deviating from

the former version of the Penal Code, had deliberately refrained from

qualifying the aggravated fraud by means of pecuniary limits as to the

damage caused. The flexible term "particularly serious damage", to be

interpreted by the criminal courts, had been regarded as more

appropriate. The Liechtenstein Court of State held that S. 147 para. 2

of the Penal Code of 1987 could not be objected to from a

constitutional point of view.

Both the High Court and the Supreme Court, in its judgment of

15 October 1990, found that, having regard to the damage caused by the

applicant, namely between SFR 40,000 and SFR 50,000, his offence

qualified as aggravated fraud. The High Court took into account the

considerations at the time of the reform and the penalty incurred in

other offences against property. The Supreme Court, as confirmed by

the Court of State, considered that, in order to afford the necessary

protection in the area of fraud, the term "particularly serious damage"

had to be interpreted in an economically reasonable manner, namely the

yearly income of a worker or employee in an average professional

position.

The Commission considers that the reform of the Liechtenstein

Penal Code with regard to the provisions on fraud, in particular the

definition of aggravated fraud by the notion of "particularly serious

damage" instead of pecuniary limits, cannot be objected to under

Article 7 para. 1 (Art. 7-1) of the Convention. The Liechtenstein

Courts, in detailed decisions, clarified this constituent element of

the offence of aggravated fraud. The Commission finds that there is

no indication that S. 147 para. 2 of the Penal Code 1987 was applied

to circumstances which, regarding the damage caused, could not

reasonably be brought under the concept of aggravated fraud.

Moreover, the Commission observes that the applicant did not

submit that the sentence imposed upon him under SS. 146, 147 para. 2

of the Penal Code 1987 was heavier than the one which he would have

incurred under its old version. In this respect, the Commission notes

that, according to the Supreme Court, the relevant provisions of the

Liechtenstein Penal Code in force in 1982, the time when the applicant

had committed the fraud in question, had not been more favourable to

him.

In these circumstances, the Commission finds that there is no

appearance of a violation of Article 7 para. 1 (Art. 7-1) 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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HEGGLI v. LIECHTENSTEIN

HEGGLI v. LIECHTENSTEIN

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