AS TO THE ADMISSIBILITY OF
Application No. 20864/92
by Neville Noah FEINGOLD
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 April 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
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 12 October 1992
by Neville Noah FEINGOLD against Austria and registered on 28 October
1992 under file No. 20864/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
- the Commission's decision of 2 March 1994 to communicate the
application;
- the observations submitted by the respondent Government on
15 June and 1 July 1994 and the observations in reply submitted
by the applicant on 16 September 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of the United Kingdom born in 1951.
He has lived in Austria since 1978 and is married to an Austrian. He
is represented before the Commission by Mr. G. Lansky, a lawyer
practising in Vienna. The facts of the case may be summarised as
follows.
Particular circumstances of the case
On 10 January 1991 an indictment was brought against the
applicant, accusing him of having caused damage of over AS 203 million
to the Sun Insurance Office. The prosecutor requested an order for the
confiscation of the unjust enrichment, pursuant to Article 20a of the
Criminal Code (Strafgesetzbuch).
On 12 April 1991 the applicant, by his then representative, made
a request under Article 224 of the Code of Criminal Procedure
(Strafprozeßordnung) for further witnesses to be heard. On 3 May 1991
the applicant's present representative went on the court record, and
on 8 May 1991 the applicant's representative requested further
evidence, the adjournment of the trial (as the representative had only
just been appointed) and, in the alternative, the summoning of
witnesses and experts at the trial. It appears that the judge who had
been nominated as presiding judge, Judge Gallent, took no decision on
the request.
Judge Gallent did not participate as trial judge when the main
proceedings opened on 14 May 1991 as he had been promoted.
On 20 September 1991 the applicant was convicted by the Vienna
Regional Court (Landesgericht) of 6 counts of disloyalty ("Untreue"),
contrary to Article 153 of the Criminal Code. Two of the counts
related to attempt, one of them related to the full offence in part and
attempt in part. The operative part of the judgment provided that the
applicant had "between 28 August 1981 and 17 March 1988 ... as
principal authorised agent of the Sun Insurance Office Ltd. ...
knowingly abused his authority to ... enter into obligations on behalf
of the Sun Insurance Office Ltd. ... and thereby caused actual
financial harm to the said firm of ... AS 126,164,366.86 and attempted
financial harm ... of AS 75,249,500.00 ..." by entering into various
guarantees on behalf of the Sun Insurance Office in respect of bank
loans granted to himself and to the Sun Unternehmens-
verwaltungsges.m.b.H (SU), an Austrian company, by granting liens over
accounts of the Sun Insurance Office in order to secure claims by third
parties against the SU, and by permitting a bank to undertake book
transfers in the name of the SU against accounts of the Sun Insurance
Office.
The applicant was sentenced to 81/2 years' imprisonment and ordered
to pay AS 37,477,570.13 pursuant to Article 20a of the Criminal Code.
In respect of the AS 37,477,570.13, the Court noted that it did not
accept his claim that he was entitled to the money as commission was
paid by different channels, as the applicant would then have been the
only broker who received commission without it passing through the SU.
Moreover, there was no record of any entitlement to commission, and
this was confirmed by several witnesses. No order was made in respect
of the private parties to the criminal proceedings, who were referred
to the civil proceedings available.
In the part of the judgment headed "Reasons for the decision"
("Entscheidungsgründe") the court found, inter alia, as follows:
"... This authority empowered the AAA [the predecessor to the SU]
to enter into insurance contracts .... Point 4 of the authority
empowers the AAA to open and run bank accounts in the name of the
Sun Insurance, but "without power to overdraw such account or
accounts or otherwise pledge the credit of the Company" ...
The SU's losses accrued partly through Feingold's business
policies, and partly, to approximately one half, through
expenditure for which it was not possible to establish any
business need, Feingold's excessive personal drawings, travel,
hotel expenses, ... etc. ... Feingold doubled his salary in 1985
...
On 16 April 1984 the accused, in the name of the Sun Insurance
Office, gave a guarantee for a loan of AS 3,000,000.00, which the
Austrian Länderbank had given the accused in his personal
capacity.
On 4 March 1987 the accused, in the name of the Sun Insurance
Office, pledged a Sun Insurance Office credit of AS 5,000,000.00
to secure all the Länderbank's claims against the SU...
On 17 December 1987 Feingold, in the name of the Sun Insurance
Office and the SU, authorised a book transfer relating to the
accounts 624 220 000/018 ... (SU) ... On examination of the
accounts ... it transpired that two of the SU's loan accounts
were not contained in the books: ... With regard to a total of
AS 37,477,570.13, examination of the coupons established no
business necessity for the expenditure (betrieblich bedingte
Erfordernisse dieser Ausgaben). Only Feingold, who dealt with
the banks, was authorised to sign for these accounts. ...
The accused admits that he signed all the declarations at issue
... He claims that ... he was not aware of any misuse of his
agency authority or, in the alternative, that no misuse of the
agency authority took place.
The accused's position is not tenable. That he was well aware
of the limits of his authority from the very beginning is
apparent from the fact that he fulfilled the other duties of his
agency contract. ... "
The applicant entered a plea of nullity with respect to the
conviction and an appeal against the sentence. The Supreme Court
(Oberster Gerichtshof) rejected the plea of nullity in camera on
25 February 1992 as partly clearly unfounded under Article 285d
para. 1 (2) of the Code of Criminal Procedure, and partly as not made
in accordance with the law, under Article 185d para. 1 (1) of the Code
of Criminal Procedure. The Procurator General had filed the following
comment:
"In the view of the Procurator General's office, the plea of
nullity submitted by the accused, Neville Noah Feingold, meets
the criteria for a decision pursuant to Article 285d of the Code
of Criminal Procedure. The transmission of a copy of the
decision is requested."
The applicant was not served with a copy of this comment, and was
not given the opportunity to make representations on it.
The Supreme Court found, in connection with the ground of nullity
that the applicant had not been fit to participate at the trial, that
although the applicant's fitness to participate had at times been in
doubt - largely due to his misuse of alcohol - the first instance court
had kept the position under review and had reduced the length of the
court sittings on the advice of the expert attending. The allegations
of unfitness were in any event first raised on the appeal, and so were
in any event inadmissible.
In connection with a ground of nullity that the Regional Court
had failed to call two named witnesses, the Supreme Court noted that
the Regional Court had expressly stated that one was not necessary as
the evidence was available in documentary form. The Supreme Court
found that it was not clear how the evidence the witnesses could have
provided could have helped the applicant.
The Supreme Court regarded the defence request at trial for all
papers and accounts to be sequestered and examined for indications of
improper payments as inadmissible because they were merely "fishing
expeditions". The fact that the first instance court had not formally
replied to this request did not affect the validity of the judgment.
Similarly, there was no reason to suppose that acceding to the request
would have indicated that the sums referred to in the report of
Mr. Bohle could have been received by anybody else, or that the
applicant could have been entitled to them.
The Supreme Court underlined that the offence of disloyalty was
committed where abuse of authority gave rise to financial disadvantage
to the principal. What subsequently happened to the money was
irrelevant.
The Supreme Court found that the plea of nullity under Article
281 para. 1 (5) of the Code of Criminal Procedure was an inadmissible
attempt to challenge facts rather than the reasoning underlying the
judgment and that the court had adequately reasoned its decision; under
Article 281 para. 1 (5a) (that there is considerable doubt as to the
accuracy of the fact on the basis of which the court took its
decision), the Supreme Court found that the applicant had not raised
issues based on the case-file, but had laid out a scenario which was
favourable to him, and compared it with the decision of the Regional
Court.
In connection with the plea of nullity under Article 281 para.
1 (11) of the Code of Criminal Procedure (error of law in sentencing),
the Supreme Court noted that the Regional Court had found as a fact
that the applicant had unlawfully enriched himself in the sum of AS
37,477,570.13, and it found that the statements in the plea of nullity
that an expert's opinion did not necessarily lead to that conclusion
took no account of the findings of fact of the Regional Court.
On 14 April 1992 the Vienna Court of Appeal (Oberlandesgericht),
in which Judge Gallent participated, granted the applicant's appeal
against sentence in part. It found that the Regional Court had failed
to take into account the mitigating circumstance that the applicant was
only partly convicted for the full offence, and partly for attempt.
It reduced the sentence to 7 years' imprisonment.
Relevant Domestic Law
Article 20a of the Criminal Code (confiscation of enrichment)
provides, so far as relevant, as follows:
"(1) If an offender has unlawfully enriched himself by
committing one or more punishable acts, he shall be convicted to
pay a sum equivalent to the extent of the enrichment where the
enrichment exceeds one million Schillings".
Article 153 of the Criminal Code (disloyalty) provides, so far
as relevant, as follows:
"(1) Any person who knowingly abuses authority bestowed on him
by ... a legal operation and thereby causes a third party
financial disadvantage (Vermögensnachteil) ... shall be sentenced
to ...".
Article 133 of the Criminal Code (criminal conversion) provides,
so far as relevant, as follows:
"(1) Any person who, with the intention of unlawfully enriching
himself or a third party, appropriates property with which he has
been entrusted shall be sentenced to ..."
COMPLAINTS
The applicant alleges a violation of Article 14 of the Convention
in connection with Articles 5 and 7 of the Convention in that he was
charged with the offence under Article 153 of the Criminal Code rather
that under Article 133.
He also alleges a violation of Article 6 of the Convention in
several respects:
(a) He alleges that he was unfit to take part in the proceedings, and
that they should not have been permitted to continue;
(b) He complains that there was not a public hearing before the
Supreme Court, and that he did not have the opportunity to comment on
the Procurator General's submissions;
(c) He complains that two named witnesses were not called from London;
(d) He complains of the participation of Dr. Gallent as judge at the
Vienna Court of Appeal on 14 April 1992 as Dr. Gallent had previously
(in his capacity as judge initially nominated as trial judge) failed
to deal with an application for the case to be remitted to the
investigating judge for further investigation. The applicant states
that the decision should in fact have been taken by the Review Chamber
(Ratskammer), and that if Dr. Gallent had continued to act as trial
judge, he would have been excluded from the appeal proceedings by
virtue of Article 69 para. 2 of the Code of Criminal Procedure;
(e) He complains that, although interpretation was available before
the investigating judge and the Regional Court, there was no
interpretation before the Vienna Court of Appeal in the appeal against
sentence;
(f) He complains that the Vienna Court of Appeal failed to deal with
some of his grounds of appeal;
(g) He complains that the order requiring him to repay the sums by
which he had enriched himself violated both Article 6 and Article 7 of
the Convention. He complains under Article 7 that the order was made
in his case even though he was not accused of offences involving
unlawful enrichment. Under Article 6 he complains that the effect of
the order was to subject him to a criminal penalty even though he had
not been charged with unlawfully enriching himself in any way, and that
there were no proceedings in which he could defend himself against this
charge.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 October 1992 and registered
on 28 October 1992.
On 2 March 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
15 June 1994, after an extension of the time-limit fixed for that
purpose. Further observations were submitted on 1 July 1994. The
applicant replied on 16 September 1994, also after an extension of the
time-limit.
THE LAW
1. The applicant alleges a violation of Article 14 (Art. 14) of the
Convention in connection with Articles 5 and 7 (Art. 5, 7) of the
Convention in that there is a difference between the offence under
Article 133 of the Criminal Code (criminal conversion - Veruntreuung)
and that under Article 153 (disloyalty - Untreue), with which he was
charged. The applicant complains that both offences deal with cases
of misuse of a position of confidence, and that to deal with them
differently is discriminatory.
However, and assuming that the applicant has complied with the
requirement of exhaustion of domestic remedies in this respect, the
substantive content of domestic criminal law is a matter in the first
place for the domestic legislator, and the mere fact that the applicant
was charged with an offence under one provision rather than another
cannot raise issues under the provisions of the Convention the
applicant refers to, or otherwise.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant alleges that he was unfit to take part in the first
instance proceedings, and that Article 6 para. 1 and para. 3 (c)
(Art. 6-1, 6-3-c) have been violated. Article 6 (Art. 6) of the
Convention provides, so far as relevant to the present case, 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:
c. to defend himself in person ...
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;
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
Article 6 (Art. 6) of the Convention guarantees the right to take
part in the hearing before the domestic courts (see, for example, Eur.
Court H.R., Colozza judgment of 12 February 1985, Series A no. 89,
p. 14, para. 27). Whilst questions of a person's fitness to plead may
be relevant to Convention issues - such as whether the "interests of
justice" require legal aid, or whether an individual should have
representation for the purposes of Article 5 para. 4 (Art. 5-4) (see,
for example, Eur. Court H.R., Megyieri judgment of 12 May 1992, Series
A no. 237, pp. 11-13, paras. 21-27) - it is in the first place for the
domestic authorities to consider the matter. The Convention organs can
then consider whether the way in which the domestic authorities dealt
with the question is in conformity with the relevant provisions of the
Convention.
In the present case, as the Supreme Court noted, the first
instance court kept the question of the applicant's fitness to plead -
which was largely induced by alcohol abuse - under constant review and
reduced the length of the court sittings on the advice of the expert.
The applicant did not, through his lawyer, raise questions of fitness
to plead in the course of the trial, but only on appeal.
In these circumstances, the Commission finds that it is not
established that the applicant's alleged unfitness to plead and the way
in which the domestic authorities dealt with it gives rise to any
issues under Article 6 (Art. 6) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains of the absence of a hearing before the
Supreme Court, again alleging a violation of Article 6 para. 1
(Art. 6-1) of the Convention.
The Government consider that the Austrian reservation to
Article 6 (Art. 6) of the Convention prevents the Commission from
considering this complaint. They point out that, in any event, the
applicant's plea of nullity was rejected as inadmissible pursuant to
Article 285d para. 1 of the Code of Criminal Procedure, that is, that
it could have been rejected by the court of first instance or (in the
case of grounds of nullity based on Article 281 para. 1 (1) to (8) and
(11)) the Supreme Court was of the unanimous opinion that it was
unfounded. They consider that the Supreme Court was therefore not
acting as an instance of fact, and that such decisions do not call for
a hearing. They add that the Court of Appeal did hold a hearing on the
applicant's appeal against sentence.
The applicant considers that the Austrian reservation to
Article 6 (Art. 6) of the Convention is irrelevant because it deals not
with the question of whether a hearing should be held, but who should
be present if a hearing does take place. He deduces a right to have
a hearing at the appeal stage from Article 2 of Protocol No. 7 (P7-2).
The applicant accepts that a hearing is not necessary for the court to
form its own impression of the parties when an appeal is solely on
points of law, but he points to Article 281 para. 1 (5) of the Code of
Criminal Procedure, which is a ground of nullity based on doubts as to
the facts. Moreover, Article 281 para. 1 (5a) of the Code of Criminal
Procedure, which was introduced in 1987, adds a further factual ground
of nullity which was raised in the present case.
The Commission recalls that even where an appeal court has
jurisdiction to review a case both as to the facts and as to the law,
and provided a public hearing has been held at first instance,
Article 6 (Art. 6) does not always require a right to a public hearing
irrespective of the issues to be decided. In particular, leave to
appeal proceedings and proceedings involving only questions of law may
be in conformity with Article 6 (Art. 6) of the Convention even in the
absence of a hearing (cf. Eur. Court H.R., Jan-Åke Andersson judgment
of 29 October 1991, Series A no. 212-B, p. 27, p. 45; No. 17358/90,
M.B. v. Austria, Comm. Report 8.9.94, pending before the European Court
of Human Rights, paras.42-51).
A hearing was held at first instance.
The applicant's plea of nullity was rejected by the Supreme Court
under Article 285d para. 1 of the Code of Criminal Procedure. That
provision does not formally constitute a leave to appeal procedure as
referred to by the Court in the above-mentioned case of Jan-Åke
Andersson, but its effect is similar in that it enables the courts to
consider whether an appeal has sufficient merits to warrant further
consideration (see the above-mentioned M.B. case, para. 47).
Whilst it is true that the applicant claims that his plea of
nullity, which alleged nullity inter alia under Article 281 para. 1 (5)
and (5a), raised questions of fact as well as questions of law, the
Commission notes that the Supreme Court regarded the first of these
grounds of nullity as an inadmissible attempt to challenge the first
instance court's findings of fact (rather than the underlying
reasoning), and the second as laying out a scenario which was
favourable to him, and comparing it with the decision of the Regional
Court.
The Commission is not satisfied that the applicant's plea of
nullity raised questions of fact which could have called for a hearing
and therefore finds that Article 6 para. 1 (Art. 6-1) of the Convention
did not require the Supreme Court to hold a hearing on the applicant's
plea of nullity.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant alleges a violation of Article 6 (Art. 6) of the
Convention in that the trial court did not call two witnesses from
London whose presence the applicant had requested.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention and Article 6 para. 3 (d) (Art. 6-3-d) of the Convention do
not give the right to an unlimited number of witnesses, and that the
domestic courts may refuse to call witnesses requested by the defence
if, for example, it is considered that their evidence would be
irrelevant (see, for example, No. 10563/83, Ekbatani v. Sweden,
Dec. 5.7.85, D.R. 44 p. 113, 117; No. 10486/83, Hauschildt v. Denmark,
Dec. 1.10.86, D.R. 49 p.86, 102).
In the present case, the Supreme Court found that the evidence
of both of the witnesses whom the applicant wanted to call was
irrelevant, in the case of one as the evidence was available in
documentary form, and in the other as it was not clear how the evidence
could have assisted the applicant.
Accordingly, this part of the application does not disclose any
appearance of a violation of Article 6 para. 1 and Article 6 para.
3 (d) (Art. 6-1, 6-3-d) of the Convention. It follows that it is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant complains that the judge initially nominated as
trial judge failed to deal with a request of 12 April 1991 for further
investigations, whereas he should have forwarded the request to the
Review Chamber if he was minded to refuse it. The same judge then
participated in the proceedings before the Court of Appeal on the
applicant's appeal against sentence. The applicant alleges a violation
of Article 6 (Art. 6) of the Convention.
The Government accept that, under Article 225 para. 1 of the Code
of Criminal Procedure, when a presiding judge intends to reject an
application under Article 224 of the Code, he is required to obtain the
consent of the Review Chamber. They submit that in the present case,
however, the judge did not reject the request, because he granted a
subsidiary request to include the evidence requested in the trial. The
Government consider that this very minor involvement - which extended
only to agreeing to a subsidiary request - did not give the judge the
opportunity to form an opinion about the strength of the case against
the applicant, and did not mean that he should not have taken part in
the appeal proceedings. They point out that, in any event, the
applicant failed to challenge the judge on grounds of bias (although
they accept that a challenge under Article 72 et seq. of the Code of
Criminal Procedure would have had no prospect of success), and the
Court of Appeal in fact reduced the applicant's sentence on appeal.
The applicant stresses that as the judge decided on the
subsidiary, alternative application, he must have decided to reject the
principal one. He has submitted an application of 8 May 1991 in which
he requested certain evidence, the adjournment of the trial (because
of the recent appointment of his present representative) and, in the
alternative, the summoning of witnesses and experts to the trial. He
considers that the judge must have formed an opinion for his decision
not to take the evidence immediately, and that the failure to involve
the Review Chamber was a decision taken to his detriment. He states
that he only found out that the same judge had participated twice when
he received the Court of Appeal's decision, and considers that the
double participation led to bias on the part of the judge.
The Commission has not been furnished with any decisions taken
by the judge concerned which shed light on his involvement in the case
during the "intermediary proceedings" (Zwischenverfahren), that is the
period between the entry into force of the indictment and the formal
opening of the trial (Hauptverhandlung). It appears, however, that he
did not in fact take any formal decisions as to the gathering of
evidence. The Commission regards it as likely that, by acceding to the
applicant's request to take evidence at the trial, the judge was
avoiding taking a decision on the strength of the case against the
applicant, rather than finding against him.
In these circumstances, the Commission finds that the applicant
has not made out his allegations that the judge had preconceived
notions of the applicant's guilt before the judge took part in the
applicant's hearing in the appeal against sentence. Accordingly, the
Commission considers that the nature and extent of the pre-trial
measures taken by the judge were so limited that any fears the
applicant may have had as to the judge's impartiality were not
objectively justified (cf. Eur Court H.R., Fey judgment of
24 February 1993, Series A no. 255, pp. 11-14, paras. 25-36). The
judge's personal impartiality has not been challenged.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicant complains that he was not given interpretation for
his appeal against sentence, although interpreters were present for his
trial. He alleges a violation of Article 6 para. 3 (e) (Art. 6-3-e)
in this respect.
The Government submit that, by not requesting an interpreter at
the appeal hearing, the applicant has failed to exhaust domestic
remedies, but argue that in any event there was no need for an
interpreter at the appeal hearing because the applicant, who has lived
in Vienna since 1978 and who is married to an Austrian, speaks
excellent German. They refer to a statement from the judge who
eventually presided at the applicant's trial and who comments that the
applicant spoke excellent German, and to a comment from a member of the
Austrian President's office, to which the applicant had presented a
plea for clemency, that the applicant spoke German "like a native".
The Government also submit that the interpretation had been present at
the trial largely for the benefit of foreign witnesses, and on four
occasions (31 May, 24 June, 22 July and 14 August 1991) when no foreign
witnesses and no English documents were translated, no interpreter was
present and the applicant did not complain. Finally, they mention that
appeals against sentence are in any event limited in scope, and a
defendant is usually asked, after the parties' representatives have
pleaded, whether he wishes to make further submissions or whether he
shares the views of his representative. In the present case, the
applicant stated that he shared his lawyer's views, and the Government
consider that he thereby waived his right to the assistance of an
interpreter.
The applicant states that almost all his business activities were
carried out in English, and that when necessary he could and did use
translators. He also regards an ability to deal with everyday German
as insufficient reason to deny a person the services of an interpreter
in court, especially where, as here, the proceedings concerned
complicated business transactions in a language other than the language
in which he worked.
The Commission recalls that Article 6 para. 3 (e) (Art. 6-3-e)
of the Convention guarantees the assistance of an interpreter if the
person charged with a criminal offence "cannot understand or speak the
language used in court".
In the present case, the applicant had been responsible for
setting up and developing business in Austria. He accepts that his
everyday German is adequate. The Commission notes that the applicant
did not protest on those occasions when no interpreter was present
during his trial, and he has not even hinted that he had any specific
difficulties in following the (partly successful) appeal against
sentence.
In these circumstances, the Commission finds that the Austrian
courts were not under an obligation to provide, of their own motion,
an interpreter for the applicant at the hearing of his appeal against
sentence. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
7. The applicant complains of the imposition on him of an order to
pay AS 37,477,570.13 by way of an additional penalty under Article 20a
of the Criminal Code. He complains under Article 7 (Art. 7) of the
Convention that the order was made even though he was not accused of
offences involving unlawful enrichment, and under Article 6 (Art. 6)
that the effect of the order was to subject him to a criminal penalty
for unlawful enrichment without either a charge or proceedings in which
he could defend himself.
Article 7 (Art. 7) of the Convention provides as follows:
"1. 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."
The Government, by reference to the Commission's opinion in the
case of Welch v. the United Kingdom (Comm. Rep. 15.10.93, to be
published in Eur. Court H.R., Series A no. 307-A), consider that the
order in the present case was not a penalty, such that Article 7
(Art. 7) is not applicable. They consider that Article 20a is explicit
in requiring repayment of sums in excess of AS 1 million, such that
Article 7 (Art. 7) is complied with in any event. In connection with
Article 6, the Government consider that the imposition of the order did
not involve a criminal charge separate from the charge under the
substantive law, and that the civil limb of Article 6 (Art. 6) is
complied with by the proceedings which preceded the making of the
order.
The applicant considers that, notwithstanding the Commission's
opinion in the case of Welch, the confiscation of enrichment in the
present case was a penalty, and that even if it is not, the Convention
must nevertheless give full procedural rights. He considers that he
was denied these rights as none of the evidence in the case went to the
question of enrichment.
The Commission recalls that since the parties in the present case
submitted their observations, the European Court of Human Rights has
given judgment in the case of Welch (Eur. Court H.R., Welch judgment
of 9 February 1995, Series A no. 307-A). The Court there considered
that there had been a violation of Article 7 (Art. 7) of the Convention
as, at the time the offence was committed, the provisions for the
confiscation order did not exist. It considered that the order was a
penalty.
In the present case, too, the Commission finds that the order for
confiscation of enrichment was a penalty.
The applicant alleges a violation of Article 7 (Art. 7) of the
Convention on the ground that a criminal penalty was imposed without
being based on any findings of fact. The provision, however, relates
rather to the question whether an offence or a penalty was in force at
the time the offence was committed. The applicant has not referred to
this question at all, but in any event, he failed to raise it in his
ground of nullity under Article 281 para. 1 (11), and so has not
exhausted domestic remedies in this respect.
The applicant also alleges a violation of Article 6 (Art. 6) of
the Convention in connection with his complaint that he was penalised
by the order for confiscation of enrichment without the courts ever
establishing that he unlawfully enriched himself.
The Government in this connection point to the way in which the
court calculated the figure of AS 37,477,570.13. They underline that
the figures, which were not challenged by the applicant in the trial,
were included in the report of Mr. Bohle and were confirmed by several
witnesses who confirmed that none of them knew of any entitlement of
the applicant to commission.
The applicant regards the Government's comments as coming close
to an "inadmissible anticipatory assessment of the evidence", pointing
out that none of the witnesses was heard on the question of the
enrichment.
The Commission recalls that, pursuant to Article 19 (Art. 19) of
the Convention, its role is to ensure the observance of the Convention.
It is not competent to deal with allegations that errors of law or of
fact have been committed by domestic courts, except where it considers
that such errors might have involved a possible violation of the rights
and freedoms set out in the Convention.
The Commission has above found that the order for confiscation
of enrichment was a "penalty" within the meaning of Article 7 (Art. 7)
of the Convention. That penalty was imposed in the framework of the
criminal proceedings brought against the applicant for disloyalty, and
the applicant was able to put questions to witnesses in connection with
this penalty in the same way as if, for example, the question had
related to his ability to pay a fine. In particular, the Commission
notes that the applicant did not make any submissions at the trial
(such as requests for a named person to be heard who would have given
evidence that the applicant was entitled to commission) which could
have cast doubt on the evidence of Mr. Bohle. The Commission therefore
finds that the way in which the domestic courts dealt with the issue
of whether an order should be made under Article 20a, and if so in what
amount, discloses no appearance of a violation of Articles 6 or 7
(Art. 6, 7) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
8. Finally, the applicant complains of the passing of a statement
from the Procurator General to the Supreme Court. He alleges a
violation of Article 6 (Art. 6) of the Convention on the ground that
he was not given a copy of the statement and was not able to comment
on it.
The Government submit that the Procurator General's statement
that the case could be dealt with under Article 285d of the Code of
Criminal Procedure is not at all the same as the "croquis" at issue in
the Brandstetter case (Eur. Court H.R., Brandstetter judgment of
28 August 1991, Series A no. 211) because in the statement in the
present case, the Procurator General did not in fact comment on the
substance of the plea of nullity. They add that the Procurator General
did not participate in the proceedings before the Supreme Court.
The applicant considers that a statement that Article 285d of
the Code of Criminal Procedure is applicable is inevitably a comment
on the merits of the plea of nullity because it was tantamount to
saying that the grounds of nullity were not present, and that the plea
was "obviously ill-founded" within the meaning of Article 285d para.
1 (2) of the Code of Criminal Procedure.
The Commission considers that this complaint raises questions of
law and fact which require a determination as to their merits, no other
ground of inadmissibility having been established.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint that he was unable to challenge the
statement of the Procurator General;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy