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)
Full & Egal Universal Law Academy