Fekter: Forgotten money at the ATM – who should be held liable?

Forgotten money at the ATM – who should be held liable?

ORF-Series “Bürgeranwalt” – Broadcast of 7 June 2008

The case is all too frequent. A person from Lower Austria needs money and therefore drives to the next ATM. There he inserts his ATM card and enters his PIN-code. Subsequently, he types a request for €400 which the machine accepts. The amount comes out of the cash slot. The person pockets his ATM card but forgets to withdraw his money from the slot.

Back at home he discovers his mistake. Not an hour had elapsed since his request. But at the ATM the money had already gone and nobody had handed it back to the Sparkasse ( a savings and loan bank).

Disappointed the victim of the loss files a complaint. The police forwards the complaint to the district attorney. The public prosecutor obtains a court order which required the ATM-Company to release the photos and records of the routine surveillance of the operation of the machine. It was thus possible to confirm that the person from Lower Austria debited the amount of €400 at 11:40 hours and that this sum came out of the slot of the ATM in form of four 100€ notes. Furthermore it is recognizable that nobody operated the ATM from 11:40 to 11:55 hours. At 11:57 the machine registered the ATM card of another person, who withdrew €100 at 11:57 hours.

The police now assume that this person could be the offender with a probability bordering on certainty. But neither the public prosecutor nor the court can obtain access to the data of this person.

As the representative of the district attorney of Korneuburg commented on 7 June 2008 during the TV-broadcast “Bürgeranwalt”, the reason for this is that the Bank and Finance Act only obliges a bank to disclose unconditionally all the data it might have available when the sum claimed amounts to €3,000 or above.

Ombudswoman Maria Fekter considers that the complaint should not be lodged against any perceived deficiency of the legal framework. She, on the contrary, reproaches the ATM operator for not having activated the mechanism that automatically recovers any money that is not duly withdrawn from the money slot. This was the mistake that allowed a trespasser to take away the money.

Ombudswoman Maria Fekter rejects the objection of the additional costs incurred by the bank in having to sort out any money that is recovered by the machine. The bank can charge its forgetful customers for those additional costs. But it is out of the question that the bank considered the money that was standing ready to be taken as having been handed over to the customer and that it disclaims having any liability for the money having remained in a place where illicit access to the abandoned sum was all too easy.

Besides – according to Ombudswoman Maria Fekter – the pictures show clearly that a hand reached out for the money slot before the next withdrawal. Whose hand it was cannot be said. One should especially avoid suggesting that the offending hand belonged precisely to the person who herself withdraw money a few minutes later. Ombudswoman Maria Fekter makes it very clear that both the principles of banking confidentiality and of presumption of innocence are applicable to this person.

Tumble over steps – the municipality of Vienna shows discretion and pays

Pleasant news in the case of the now 88 years old Viennese woman who fell over some steps with no railing on an open space of the municipality of Vienna in February of last year and sustained severe injuries.

Ombudswoman Maria Fekter pointed out to the municipality of Vienna – during a broadcast of the ORF called “Bürgeranwalt” on 26 April 2008 – that the municipality was liable for the safety conditions of its open spaces and that stairs, whether indoors or outdoors, had to have a railing at least on one side.

After the broadcast, the municipality of Vienna saw the point and offered the injured person an adequate compensation for the injuries sustained and the legal costs. The missing banister had been duly placed immediately after the fall.

Even if this response is very satisfying, Ombudswoman Maria Fekter had to observe on 9 June 2008 that in Vienna one can still find many flights of steps that are not adequately marked and strongly suggested that the municipality of Vienna should put pavement markings on them as soon as possible for the safety of the visually impaired.