CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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