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
Full & Egal Universal Law Academy