UNTERGUGGENBERGER v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant, Mr Silvio Unterguggenberger, is an Austrian national, born in 1935 and living in Vienna. He is represented before the Court by Mr M. Graff, a lawyer practising in Vienna. The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a member of the executive board of the V. Company and was responsible for the management of the company’s finances. On 7 March 1990 this company laid an information against the applicant inter alia on the suspicion that the applicant had caused financial damage by abusing his position as financial manager of the company. Point a) of the information concerns transactions with the K. Bank. It alleges that the K. Bank, chosen by the applicant to carry out the management of the V. Company’s investment portfolio, had charged the latter excessive fees. It alleges further that the applicant had requested a refund of about 12 million Austrian schillings (ATS) for entrusting the K. Bank with these financial transactions. On 2 April 1990 preliminary investigations were opened against the applicant. On 19 April 1990 the Economic Police (Wirtschaftspolizei) carried out searches at the applicant’s premises and at the premises of M.W., the former director of the K. Bank, who was at the same time a witness against the applicant. Three diaries and about a hundred pages of other documentary evidence (the so-called “green folder”) were seized at M.W.’s home. The documents which were considered relevant to the investigation were listed in a report of 21 May 1990. On 20 April 1990 the investigating judge at the Vienna Regional Criminal Court heard the applicant. According to the minutes, the questioning started at 9 a.m. The applicant was informed that preliminary investigations on the suspicion of a breach of trust (Untreue) under section 153 of the Criminal Code (Strafgesetzbuch) and on the suspicion of offences under the Company Act (Aktiengesetz) were pending against him. He was first heard as regards the alleged breach of the Company Act and then about the transactions with the K. Bank. In this respect, he was told that he was suspected of having received a refund from M.W. and indications as to the amount at issue and the date of receipt were also given. The applicant stated that he was aware of the allegations and handed over a written statement outlining his position. The questioning on the transactions with the K. Bank ended at about 10 a.m. whereas the further questioning, which lasted until 12 a.m., concerned facts which are not relevant in the present context. On 8 May 1990 the investigating judge decided that the defence was not entitled to inspect certain specified parts of the file. On 29 May 1990 the applicant lodged a complaint against this decision with the Review Chamber (Ratskammer) of the Regional Court which was unsuccessful. On 22 June 1990 the Economic Police submitted a report on the result of their investigations to the Regional Court. The latter confirmed in writing the receipt of the green folder, which was subsequently transmitted to an expert. On 24 April 1991 the V. Company filed a supplementary information against the applicant concerning transactions with the K. Bank. On 6 June 1991 the V. Company filed another supplementary information against the applicant concerning new facts. It alleged that he had introduced L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, a subsidiary of the V. Company, and that the commission paid had caused financial damage to the V. Company. On 13 and 16 December 1991 the V. Company filed further documentary evidence and information. On 6 August 1993 the Regional Court received the applicant’s request to obtain the green folder from the expert in order to enable him to inspect it. He submitted that, according to the report of 21 May 1990 by the Economic Police, documents which were relevant to the proceedings had been seized at M.W.’s premises and had apparently been handed over to the expert who referred in his written opinion to one of those documents. The investigating judge at the Regional Court did not take any decision on this request. On 1 March 1994 the Public Prosecutor’s Office preferred the thirty-page indictment against the applicant and his co-accused, L., concerning charges of breach of trust under section 153 of the Criminal Code. The applicant was accused, inter alia, of having in 1985 and 1986 demanded and received a “refund” of about ATS 12 million for financial transactions carried out by the K. Bank, and for having introduced, between 1985 and mid-1987, L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, thus, creating a fictitious claim for commission, causing damage of about ATS 9 million. Detailed information as to the underlying facts was given with regard to both charges. The indictment was served on the applicant on 22 March 1994. On 7 March 1994 the investigating judge, upon the request of the Public Prosecutor’s Office on 23 February 1994, discontinued the criminal proceedings against the applicant inter alia as regards point a) of the information concerning “excessive fees for transactions with the K. Bank” (see above, the information of 7 March 1990). On 12 April 1995 the applicant repeated his request that the green folder be made available to him. Again the Regional Court took no decision. On 27 April 1995 the applicant filed a motion for the hearing of two witnesses and for access to four related criminal court files. On 8 May 1995 the trial started before the Vienna Regional Criminal Court sitting as a court with lay assessors (Schöffengericht). When the co-accused, L., was heard, the presiding judge ruled that the applicant was not allowed to be present. Neither the applicant nor his counsel contested this measure. Defence counsel was present during the interrogation. The applicant was re-admitted to the court room as soon as the questioning of L. was finished and the presiding judge gave him a summary of L.’s statements. At that stage, neither the applicant nor his counsel asked for further information or complained that the summary of L.’s statements was insufficient. The former director of the K. Bank, M.W., was heard as a witness in the presence of the applicant and the defence questioned him in some detail. On 9, 10, 15, 16 and 17 May 1995 further hearings were held and numerous witnesses were heard. It is in dispute between the parties when the green folder was made available to the defence. The Government submit that it was available as of the first day of the trial, whereas the applicant submits that he only received copies of parts of it on 15 May 1995, i.e. on the fourth day of the trial. On 17 May 1995, the last hearing day, the applicant’s counsel filed a further application for the hearing of witnesses. According to the minutes, he also requested that documents from the green folder be read out and - in case it was disputed that M.W. was the author of those documents - to hear M.W. and to appoint a handwriting expert. At the close of the hearing the presiding judge dismissed all outstanding requests for the taking of further evidence. On 17 May 1995 the court gave judgment, convicting the applicant of a breach of trust within the meaning of section 153 of the Criminal Code, and sentencing him to six years’ imprisonment for having demanded and received a “refund” of about ATS 12 million for financial transactions carried out by the K. Bank. He was also convicted of having introduced L. as a fictitious intermediary in order to carry out certain financial transactions of the I. Company, thus creating a fictitious claim for commission and causing damage of about ATS 9 million. It found that, in both cases, he had not transferred the commission to the V. Company and that he had abused his position as the financial director of the V. Company, causing it financial damage. The court recalled that the case-law on the question of whether the acceptance of commission by trustees fell within the scope of section 153 of the Criminal Code had been contradictory for some time, but had been settled by the Supreme Court’s judgment of 17 May 1983 in another case. According to that judgment, section 153 was applicable to the applicant’s case. On 11 December 1995 the applicant filed a plea of nullity and an appeal (Nichtigkeitsbeschwerde und Berufung). He complained about the refusal to hear several witnesses he had called for, and the fact that he had not had access to the green folder before the trial hearings. Thus he had not been able to prepare his defence properly. He further noted that he had not been present when his co-accused had been heard. He alleged that he had been insufficiently informed about the statements made by the co-accused afterwards. Furthermore, he criticised the evaluation of evidence. As to the facts concerning the K. Bank, he alleged that his conviction violated the principle of ne bis in idem because the investigating judge had ordered the criminal proceedings to be discontinued in this respect on 7 March 1994. Finally, he complained that the court had erred in law when applying section 153 of the Criminal Code to his case. He argued that it was section 153a of the Criminal Code which was pertinent to the offence concerning the acceptance of advantages by trustees (Geschenkannahme durch Machthaber). As this section had entered into force after he had committed the acts in issue, he could not be punished at all. On 4 April 1996 the Attorney-General (Generalprokurator) filed thirty pages of observations (Croquis) on the applicant’s plea of nullity and his appeal. On 12 April 1996 the applicant was notified that the hearing before the Supreme Court would take place on 25 April 1996. On 15 April 1996 the applicant, who was at that stage still represented by the lawyer who had filed his plea of nullity and appeal, received the Attorney-General’s observations and was informed that he could comment on them within a delay of eight days. He sent his twelve-page reply by mail on 23 April 1996, which reached the Supreme Court the next day. He did not request an adjournment of the hearing. On 25 April 1996 the hearing took place and the Supreme Court confirmed the Regional Court’s judgment. As to the applicant’s complaint that he had not been adequately informed about the statement of his co-accused L., who had been heard in his absence, the Supreme Court noted that the presiding judge had given the necessary information by way of a summary of the statements. It would have been open to defence counsel to challenge the applicant’s exclusion from L.’s hearing and to complain about the alleged insufficiency of the summary of L’s evidence, in order to obtain an interim decision from the court in this respect. Further, the Supreme Court found that the court of first instance had justifiably refused to hear certain witnesses as it had in any case considered that the facts to be proved by those witnesses had already been established. Thus, the refusal did not cause any prejudice to the applicant. As to the green folder, it noted that the applicant could have applied for the further questioning of M.W. after having obtained the folder, but that he failed to make such an application and had therefore not fulfilled the conditions for a plea of nullity in this respect. The Supreme Court found that the applicant’s further submissions constituted an inadmissible attempt to challenge the Regional Court’s assessment of the evidence, which was duly reasoned and free from contradiction. As to section 153 of the Criminal Code, the Supreme Court confirmed that it was applicable to the applicant’s case. Finally, it found that the facts described in the investigating judge’s order of 7 March 1994, namely “excessive fees for transactions with the K. Bank” were not identical to those facts underlying the conviction, namely the receipt of refunds by the applicant. Therefore, the conviction did not violate the principle of ne bis in idem.