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withdrawn between 28 August 1985 and 9 August 1989 in several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)
Full & Egal Universal Law Academy