AS TO THE ADMISSIBILITY OF
Application No. 24406/94
by Johann ZWETTLER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 31 May 1994 by
Johann ZWETTLER against Austria and registered on 15 June 1994 under
file No. 24406/94;
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 1925, is an Austrian national and resident
in Linz.
In 1989 criminal investigations were started against the
applicant and other managers of an aircraft industries company on the
suspicion of having committed bankruptcy offences.
In the criminal proceedings against him, the applicant was
assisted by defence counsel.
On 2 July 1992 the Linz Regional Criminal Court (Landesgericht
für Strafsachen) convicted the applicant of simple bankruptcy
(fahrlässige Krida), pursuant to S. 159 para. 1 of the Austrian Penal
Code (Strafgesetzbuch), and sentenced him to three months'
imprisonment. Three further accused were also convicted of simple
bankruptcy and sentenced to three or four months' imprisonment,
respectively. The execution of their sentences was suspended on
probation. The accused were also ordered to pay compensation to the
private parties (Privatbeteiligte). Furthermore, the costs of the
proceedings were awarded against, inter alia, the applicant.
In its judgment, the Regional Criminal Court found that the
applicant, as member of the supervisory board (Aufsichtsrat) of the
above company, had known about its insufficient capital means and
solvency, but failed to urge for an long-term financial strategy and
market investigation. He had further agreed to imprudent raising of
money and had on the whole insufficiently supervised the management of
the company concerned. The Court stated that its factual findings, in
particular as regards the applicant's knowledge of the financial
situation of the company concerned, were based partly upon the
applicant's statements and the statements of members of the managing
board and the supervisory board as well as of other witnesses. Having
regard to all circumstances and in particular the applicant's position,
the Court did not accept his defence that he had not known about the
difficulties in raising the financial means for the purposes of an
increase of capital. The Court also proceeded from two technical
expert opinions, prepared in the context of the preliminary
investigations, as well as from the opinion of an auditor. The Court
dismissed the requests, by one of the co-accused, to take a private
expert opinion into account, and not to consider one of the above
expert opinions and to have further expert opinions prepared. In this
respect, the Court observed that the Code of Criminal Procedure
(Strafprozeßordnung) did not require the trial court to take private
expert opinions into account. Furthermore, the expert opinions
prepared in the context of the proceedings were on the whole conclusive
and covered all relevant matters.
On 9 December 1993 the Linz Court of Appeal (Oberlandesgericht),
upon inter alia the applicant's appeal (Berufung), amended the Regional
Court judgment as regards its compensation order to the effect that the
decision on this issue was referred to the civil courts. The Court of
Appeal confirmed the findings of the Regional Criminal Court. It also
dismissed the complaints by the applicant and his co-accused about the
refusal to take further expert advice, finding that the relevant
questions were not particularly difficult and that the expert opinions
available did not disclose any shortcomings.
The judgment was served on 27 January 1994.
COMPLAINTS
The applicant complains about his conviction and the alleged
unfairness of the criminal proceedings against him. He considers in
particular that the Austrian courts wrongly found him guilty, and
incorrectly applied the relevant legal provision on bankruptcy in the
circumstances of his case. In particular, the Linz Regional Criminal
Court should have taken the private expert opinion into account.
Furthermore, according to the applicant, the Linz Regional Criminal
Court's judgment was not duly reasoned, in particular not sufficiently
considered and referred to the legal literature. He also submits that
his conviction amounted to discrimination on the ground that other
former members of the company's supervisory board were not prosecuted.
He finally complains that he had to bear the costs of the criminal
proceedings against him as well as his own legal expenses. He invokes
Article 6 paras. 1 and 2, and Articles 7 and 14 of the Convention as
well as Article 1 of Protocol No. 1.
THE LAW
1. The applicant complains about his conviction and also of the
criminal proceedings against him.
a. With regard to the judicial decision of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77 p. 81; Eur. Court
H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 20,
para. 61; Klaas judgment of 22 September 1993, Series A no. 269, p. 17,
para. 29).
b. The applicant complains that his conviction amounted to a
violation of Article 7 (Art. 7) of the Convention.
According to Article 7 para. 1 (Art. 7-1), first sentence, "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".
The Commission considers that the applicant's submissions in this
respect are limited to the allegation of factual and legal errors in
the Linz Regional Criminal Court's finding, as confirmed by the Linz
Court of Appeal, that he had committed the offence of simple
bankruptcy, pursuant to the relevant provision of the Austrian Penal
Code. They do not disclose any appearance of a violation of Article 7
para. 1 (Art. 7-1) of the Convention.
c. The applicant further raised various complaints about the
criminal proceedings against him. The Commission finds appropriate it
to examine these submissions from the angle of paragraph 1 taken
together with the principles inherent in paragraphs 2 and 3 of
Article 6 (Art. 6), as the guarantees in paragraphs 2 and 3 are
specific aspects of the general concept of a fair trial set forth in
paragraph 1 (cf. mutatis mutandis, Eur. Court H.R., Unterpertinger
judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).
With regard to the applicant's complaints about the Regional
Criminal Court's taking and assessment of evidence, the Commission
recalls that, as a general rule, it is for the national courts to
assess the evidence before them as well as the relevance of the
evidence which the defendants seek to adduce. More specifically,
Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them, again as a
general rule, to assess whether it is appropriate to call witnesses,
in the "autonomous" sense given to that word in the Convention system;
it does not require the attendance and examination of every witness on
the accused's behalf (cf., Eur. Court H.R., Bricmont judgment of 7 July
1989, Series A no. 158, p. 31, para. 89; Vidal judgment of 22 April
1992, Series A no. 235-B, pp. 32-33, para. 33). However, it is the
task of the Convention organs to ascertain whether the taking and
assessment of evidence rendered the proceedings as a whole unfair. In
this respect, the Commission also recalls that all the evidence must
normally be produced in the presence of the accused at a public hearing
with a view to adversarial argument (cf. Eur. Court H.R., Asch judgment
of 26 April 1991, Series A no. 203, p. 10, paras. 26-27).
In the present case, the applicant submits in particular that the
Regional Criminal Court did not take the private expert opinion into
account. In this respect, the Commission notes that the Regional
Criminal Court observed that the Code of Criminal Procedure did not
require the trial court to accept private expert opinions as evidence.
Moreover, the Regional Criminal Court considered that the expert
opinions prepared in the context of the proceedings were on the whole
conclusive and covered all relevant matters. The Court of Appeal
confirmed this approach. Having regard to all material before it, the
Commission finds no sufficient grounds to conclude that the failure to
take the private expert opinion into account was incompatible with
Article 6 (Art. 6).
As regards the applicant's complaint that the Linz Regional
Criminal Court's judgment was not duly reasoned, the Commission recalls
that Article 6 para. 1 (Art. 6-1) obliges the courts to give reasons
for their judgments, but cannot be understood as requiring a detailed
answer to every argument. The extent to which this duty to give
reasons applies may vary according to the nature of the decision (Eur.
Court H.R., Ruiz Torija and Hiro Balani judgments of 9 December 1994,
Series A no. 303 -A and B, p. 12, para. 29, and pp. 29-30, para. 27).
However, the Convention organs are not called upon to examine whether
arguments are adequately met (see above and Eur. Court H.R., Van De
Hurk judgment of 19 April 1994, Series A no. 288, p. 20, para. 61).
The Commission, having considered the Regional Criminal Court's
reasoning in its judgment of 2 July 1992, finds no indication that the
court failed to fulfil its obligation to state reasons.
In sum, taken individually none of the matters complained of by
the applicant discloses any appearance of a violation of the rights of
the defence under Article 6 (Art. 6) of the Convention. Furthermore,
the Commission finds that, taken cumulatively, the alleged procedural
deficiencies did not result in rendering unfair, for the purposes of
Article 6 (Art. 6), the criminal proceedings considered as a whole.
d. The applicant also complains that further persons who had been
members of the company's supervisory board were not prosecuted and
convicted for bankruptcy. The Commission, having examined this issue
under Article 14, in conjunction with Article 6 (Art. 14+6), of the
Convention, finds that in principle it is not its function to compare
different decisions of national authorities, even if taken in
apparently similar circumstances proceedings, unless there is a denial
of justice or a manifest abuse.
The applicant's submissions do not permit a finding of this sort.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant finally complains under Article 1 of Protocol No. 1
(P1-1) that he had to bear the costs of the criminal proceedings
against him as well as his own legal expenses. The Commission
considers that the Austrian court decisions on this point are justified
under paragraph 2 of this provision which entitles the State "to
enforce such laws as it deems necessary ... to secure the payment of
taxes or other contributions or penalties". It follows that this part
of the application is likewise manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy