EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 26493/95

Willem Zegwaard and Zegwaard B.V.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

26493/95 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-31)              3

A. The particular circumstances of the case

(paras. 16-29)              3

B. Relevant domestic law and practice

(paras. 30-31)              8

III. OPINION OF THE COMMISSION

(paras. 32-52)              9

A. Complaint declared admissible

(para. 32) 9

B. Point at issue

(para. 33) 9

C. As regards Article 6 para. 2 of the Convention

(paras. 34-51)              9

CONCLUSION

(para. 52) 12

APPENDIX : DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The first applicant is a Dutch citizen, born in 1944 and resident in Rijswijk , the Netherlands. The applicant company is a company with limited liability, established under Dutch law, which has its registered seat in Delft, the Netherlands. They were represented before the Commission by Mr C.J. van Bavel , a lawyer practising in Utrecht.

3. The application is directed against the Netherlands. The respondent Government were represented by their Agent, Mr R. Böcker , of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the applicants' complaint that in the determination of the sentence to be imposed on them in criminal proceedings account was taken of offences of which they had not been convicted. The applicants invoke Article 6 para. 2 of the Convention.

B. The proceedings

5. The application was introduced on 22 November 1994 and registered on 13 February 1995.

6. On 16 October 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 29 January 1997 after an extension of the time-limit fixed for this purpose. The applicants replied on 9 April 1997, also after an extension of the time-limit.

8. On 3 December 1997 the Commission declared admissible the applicants' complaint under Article 6 para. 2 of the Convention.  It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 12 December 1997 and they were invited to submit such further information or observations on the merits as they wished. Neither party availed itself of this possibility.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 9 September 1998  by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. In April 1989 preliminary judicial investigations were initiated into allegations of, inter alia , forgery and illegal dumping of chemical waste perpetrated by the applicant company. On 11 April 1989 the house of the first applicant and the premises of the applicant company were searched, and on 18 September 1990 the first applicant was detained on remand. On 17 October 1990 he was released.

17. On 14 October 1991 the applicants were summoned to appear before the Regional Court ( Arrondissementsrechtbank ) of The Hague on 25 November 1991. The first applicant was charged with the following criminal offences:

1. participation in a legal person, i.e. Zegwaard B.V. , managed by him which intended to commit the criminal offences of ( i ) forgery, (ii) fraud, (iii) the deliberate dumping of chemical waste and (iv) the deliberate dumping of polluted waste matter;

2. attempt to obtain an unlawful advantage by giving false information under false pretences when requesting an exemption in order to dump waste matter in Mont Saint Guibert (Belgium) from the Provincial Executive of Zuid -Holland committed by Zegwaard B.V. on his orders and/or whilst he was in actual charge of this act;

3. obtaining of an unlawful advantage by informing a third company, contrary to the truth, that it, i.e. Zegwaard B.V. , was in possession of permits and exemptions which enabled it to dump chemical waste, such as coal tar pitch as produced by the third company, in Belgium, committed by Zegwaard B.V. on his orders and/or whilst he was in actual charge of this act;

4. deliberate use of false or forged border documents committed by Zegwaard B.V. on his orders and/or whilst he was in actual charge of this act;

5. forging of documents stating weights committed by Zegwaard B.V. on his orders and/or whilst he was in actual charge of this act;

6. forging of invoices committed by Zegwaard B.V. on his orders and/or whilst he was in actual charge of this act;

7. dumping of chemical waste committed by Zegwaard B.V. on his orders and/or whilst he was in actual charge of this act; and

8. violation of the regulations laid down in the Surface Water Pollution Act (Wet Verontreiniging Oppervlaktewateren ) committed by Zegwaard B.V. on his orders and/or whilst he was in actual charge of this act.

18. The applicant company was charged with the following offences:

A. participation in a legal person which had the intention to commit the criminal offences of ( i ) forgery of so-called border documents and other documents, (ii) fraud, (iii) the deliberate dumping of chemical waste and (iv) the deliberate dumping of polluted waste matter;

B. attempt to obtain an unlawful advantage by giving false information under false pretences when requesting an exemption in order to dump waste matter in Mont Saint Guibert (Belgium) from the Provincial Executive of Zuid -Holland;

C. obtaining of an unlawful advantage by informing a third company, contrary to the truth, that it, i.e. Zegwaard B.V. , was in possession of permits and exemptions which enabled it to dump chemical waste, such as coal tar pitch as produced by the third company, in Belgium;

D. deliberate use of false or forged documents;

E. forging of documents stating weights;

F. forging of invoices;

G. dumping of chemical waste; and

H. violation of the regulations laid down in the Surface Water Pollution Act.

19. In respect of both the first applicant and the applicant company, the charges contained detailed information as to when, where and to whose detriment the offence at issue had allegedly taken place.

20. Public hearings took place on 26 November and 3 December 1991.

21. As regards the first applicant, the Regional Court on 17 December 1991 declared the indictment in respect of the charges under 1 ( i ) and (iii) null and void, acquitted him of the other charges under 1 and the charges under 3, 4, 6 and 7, and convicted him of the charges under 2, 5 and 8. It sentenced the first applicant to a partially suspended term of 24 months' imprisonment less the time spent in pre-trial detention. The Regional Court furthermore imposed a fine of 100,000 Dutch guilders on the first applicant.

22. As regards the second applicant, the Regional Court on the same day declared the indictment in respect of the charges under A ( i ) as regards forgery of other documents and (iii) null and void, acquitted it of the other charges under A and the charges under C and G, and convicted the applicant company of the charges under B, D, E, F and H. The Regional Court imposed a fine of 600,000 Dutch guilders on the applicant company and obliged it to pay the State 50,000 Dutch guilders to deprive it of the estimated financial advantages it had obtained.

23. Both applicants and the Prosecutions Department filed an appeal against the Regional Court's decisions with the Court of Appeal ( Gerechtshof ) of The Hague.

24. Public hearings before the Court of Appeal were held on 15 and 16 February, 9 March and 19 April 1993.

25. On 3 May 1993 the Court of Appeal quashed the Regional Court's judgments. In regard to the first applicant, the Court of Appeal considered that only the offence of attempted fraud committed by a legal person whilst the first applicant was in actual charge of the impugned act (2) had been proved. It declared the indictment null and void in respect of charges 1 sub ( i and iii) and 8, and acquitted the applicant of charges 1 sub (ii and iv), 3, 4, 5, 6 and 7. Nevertheless, it sentenced the first applicant to 12 months' imprisonment less the time spent in pre-trial detention. In this respect the Court of Appeal held, inter alia :

"The Court has determined the sentence on the basis of the severity of the criminal offence and the circumstances under which it was committed, and on the basis of the personality and the personal circumstances of the accused as these have emerged from the hearings before the Court.

The Court has had particular regard to the following.

Within the Zegwaard group of companies the accused was, not only formally but also in substance given the flat organisational structure of the group, the person who had the final say and who bore responsibility. He has furthermore been typified as a person who was "very well informed" of all matters within the companies. It may be true that of the offences he was charged with only one has been proved, but it has nevertheless emerged from the hearings on appeal that in the period during which the alleged offences took place a number of criminal offences were committed within the Zegwaard group, such as fraudulent acts in dealings with the municipal sanitation departments of The Hague and Voorburg (LVZ), the deliberate use of false border documents, the forging or false drawing up of documents stating weights and of invoices, and the disposal of chemical waste contrary to the regulations. The fact that these offences were allowed to occur may, despite Section 51 of the Criminal Code, to a large extent be attributed to the accused and should, given that he prided himself on the fact that everything at the Zegwaard group was done according to the rules, be deemed all the more reprehensible.

The accused manifestly did not object to the fact that through deception of the authorities permits and exemptions were obtained, such only for the benefit of the Zegwaard group whereas the interests of the environment were ignored. The Court considers these facts worthy of punishment to such an extent that neither the feeble and not very alert policy of those authorities nor the chaotic and deficient appearance of the environmental legislation, could serve as a mitigating circumstance.

The Court is of the opinion that, in view of the nature and seriousness of the proved offence and of the considerations above, the imposition of a non-suspended prison sentence ... is the only fitting reaction. In the determination of this sentence the Court has also had regard to the possible negative effects of all the publicity which the media have devoted to this case ..."

26. As regards the applicant company, the Court of Appeal declared the indictment in respect of the charges under A ( i ) insofar as this concerned the forgery of other documents, (iii) and (iv) and H null and void and acquitted it of the remaining charges under A and the charges under C and G. It convicted the applicant company of the charges under B, D, E and F and imposed on it a fine of 600,000 Dutch guilders. In this respect, it held, inter alia :

"The Court has determined the sentence on the basis of the severity of the criminal offences and the circumstances under which they were committed, and on the basis of the accused's circumstances as these have emerged from the hearings before the Court.

The Court has had particular regard to the following.

The accused has several times committed forgery and has deliberately made use of documents falsely drawn up; it has also attempted to commit fraud. It may be true that the other offences [with which the accused was charged] have not been proved, but it has nevertheless emerged from the hearings on appeal that in the period during which the alleged offences took place a number of facts have occurred at Zegwaard B.V. , each of which may be characterised as a criminal offence.

Thus Zegwaard B.V. has managed to persuade the municipal sanitation departments of The Hague and Voorburg (LVZ) to grant an exemption enabling it to dump 100,000 tons of household refuse in Mellery (Belgium), which exemption was subsequently wrongfully used with the sole purpose of benefiting [ Zegwaard B.V. ] only. Zegwaard B.V. has furthermore many times disposed of different kinds of chemical waste contrary to the regulations and without being in possession of any permit, exemption or professional knowledge. All these actions were manifestly undertaken in order to continue an existing practice, whereas in reality, contrary to what was pretended towards the outside world, [ Zegwaard B.V. ] was indifferent towards the environment, the environmental legislation and the responsible authorities. The Court considers these facts worthy of punishment to such an extent that neither the feeble and not very alert policy of those authorities nor the chaotic and deficient appearance of the environmental legislation, could serve as a mitigating circumstance.

The Court is of the opinion, in view of the seriousness of the proved offences and of the considerations above, and notwithstanding the fact that it has found the accused guilty of fewer offences than the Regional Court, that a fine of the same amount should nevertheless be imposed.

In the determination of this fine the Court has had regard to the accused's financial resources as these have appeared from the hearings, as well as to the possible negative effects of all the publicity which the media have devoted to this case ..."

27. The applicants and the Prosecutions Department both filed appeals in cassation against the judgments of 3 May 1993 with the Supreme Court ( Hoge Raad ). The applicants complained, inter alia , that in its determination of the sentences, the Court of Appeal had had regard to offences in respect of which the indictments had been declared null and void or of which they had been acquitted.

28. On 31 May 1994 the Supreme Court declared the appeals in cassation of the Prosecutions Department inadmissible on the ground that they had been lodged out of time, and rejected the applicants' appeals in cassation . As regards the applicants' complaint of the determination of the sentences, the Supreme Court considered that, in general, a judge, when determining the sentence to be imposed, may take account of facts and circumstances which have emerged from the hearing. In respect of the first applicant, the Supreme Court held furthermore:

"7.2 ... It is true that it does not appear from the minutes of the hearings on appeal that the accused committed the criminal offences with which he had been charged but in respect of which the Court of Appeal had declared the indictment null and void or of which he had been acquitted. However, the fact that the Court of Appeal deduced from what was debated at the hearings ... that within the Zegwaard group a number of criminal offences was committed, such as those mentioned by the Court of Appeal ..., is not inexplicable. The Court of Appeal was further able to deduce from what was debated at the hearings ... that within the Zegwaard group the power of decision and the responsibility for the group lay with the accused.

7.3. The Court of Appeal was entitled to consider the above in correlation. By holding that the commission of criminal offences within the Zegwaard group was to a large extent attributable to the accused, the Court of Appeal obviously and not inexplicably stated that the accused, as the person entrusted with the power to decide within the Zegwaard group, held a position of responsibility and that he did not or not sufficiently exercise this position of responsibility in order to prevent the criminal offences indicated by the Court of Appeal from being committed within these companies. The Court of Appeal was free to take account of these circumstances which concern the person of the accused when it determined the sentence to be imposed. ..."

29. The Supreme Court's judgment concerning the applicant company contained phrases of a similar nature.

B. Relevant domestic law and practice

30. Article 51 of the Criminal Code ( Wetboek van Strafrecht ) provides as follows:

1. Offences may be committed by natural persons and legal persons.

2. If an offence is committed by a legal person criminal proceedings may be instituted and the punishments and other measures provided for by law may be implemented where appropriate:

1 . against the legal person, or alternatively,

2 . against the persons who ordered the commission of the offence as well as the persons who were in actual charge of the prohibited act, or alternatively,

3 . against the persons referred to under 1  and 2  together.

3. (...)

31. In its well-established case-law the Supreme Court further holds that the court dealing with the facts may not impose a sentence which exceeds the maximum sentence provided for in the relevant legal provisions. However, when determining the sentence, there is no legal impediment preventing the court from taking into account, to the detriment of the accused, any aggravating circumstances which have emerged from the trial.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

32. The Commission has declared admissible the applicants' complaint that when it determined the sentences to be imposed on them, the Court of Appeal of The Hague took account of offences of which they had not been convicted.

B. Point at issue

33. The issue to be determined is, accordingly, whether there has been a violation of Article 6 para. 2 of the Convention.

C. As regards Article 6 para. 2 of the Convention

34. Article 6 para. 2 of the Convention provides as follows:

"2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

35. The applicants submit that a court may take into account all conceivable facts and circumstances in passing sentence provided that in doing so it does not violate the principle of presumption of innocence. In their opinion, a court goes beyond what can be accepted in this respect if, as in the present case, when stating its reasons for imposing a particular sentence, it describes as offences matters of which it has previously acquitted the accused, in respect of which it had held the indictment to be null and void or with which the accused had not been charged.

36. They further submit that the first applicant was acquitted of the great majority of the offences with which he was charged precisely because he could not be held responsible in legal terms as the person actually in charge under Section 51 para. 2 of the Criminal Code. Yet in the determination of the sentence the Court of Appeal nevertheless held the first applicant responsible for these offences.

37. The Government argue that the applicants were only convicted of offences with which they had been charged. However, when determining a penalty, a court is not obliged to confine itself to the offences with which an accused has been charged, but it may also bear in mind circumstances as long as these have been raised at the hearing or are generally known. The Government point out that in the present case the Court of Appeal thus also took into account, for example, the possible negative effects on the applicants of the media attention which the case had attracted. Moreover, in passing sentence, the Court of Appeal had regard to aggravating and extenuating circumstances which related to the case and the person and company concerned.

38. With regard to the first applicant, the Government argue that it was established during the proceedings that numerous offences had been committed within the Zegwaard companies. Although the Court of Appeal explicitly did not conclude that these offences had been committed by the first applicant, it was nevertheless able to deduce from what emerged from the hearings that the power of decision and the responsibility for the Zegwaard companies had been his. By holding, therefore, that the commission of these offences was to a large extent attributable to the first applicant, the Court of Appeal was able to conclude that although the first applicant was not criminally liable these circumstances should nevertheless be taken into account in the determination of the sentence to be passed.

39. Similarly, with regard to the applicant company, the Government submit that the Court of Appeal concluded from what emerged at the hearings that numerous activities had taken place within the Zegwaard companies which could be considered to constitute criminal offences. Again, the Court of Appeal did not find that the applicant company had committed these offences itself, but it merely took into account all kinds of facts relating to the circumstances in which the offences of which it convicted the applicant company had taken place.

40. According to the Government, the most important aspect of the principle of presumption of innocence relates to the basis for conviction. They argue in this respect that in the present case the applicants were convicted on the basis of legally recognised evidence submitted during the trial by the prosecuting authorities which the applicants were given every opportunity to refute.

41. The Commission recalls that paragraph 2 of Article 6 only deals with the proof of guilt and not with the kind or level of punishment. It does thus not prevent the national judge, when deciding upon the penalty to be imposed on an accused lawfully convicted of the offence submitted to his adjudication, from having regard to factors relating to the individual's personality (Eur. Court HR, Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 38, para. 90) or to extenuating or aggravating circumstances. However, the presumption of innocence will be violated if, without the accused having previously been found guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty (Eur. Court HR, Minelli v. Switzerland judgment of 25 March 1983, Series A no. 62, p. 18, para. 37).

42. In the present case, the Commission notes that the Court of Appeal convicted the first applicant of one offence, namely having been in charge of attempted fraud committed by the applicant company (charge 2). He was not convicted of any of the other offences included in the indictment, all of which, apart from the first one, contained the allegation that he had either ordered or been in charge of the commission of criminal offences by the applicant company.

43. In its determination of the sentence to be imposed on the first applicant as a penalty for the offence of which it convicted him, the Court of Appeal noted that a number of (other) criminal offences had been committed within the applicant company. The Commission notes that the Court of Appeal had convicted the applicant company of some of these offences, namely the deliberate use of false or forged documents (charge D), and the forging of documents stating weights and invoices (charges E and F). However, the applicant company had not been convicted of defrauding the municipal sanitation departments of The Hague and Voorburg nor of dumping chemical waste - offences with which the applicant company had not been charged but the commission of which had, according to the Court of Appeal, emerged from the hearing.

44. The Court of Appeal then went on to describe the position of the first applicant within the applicant company. It concluded that the fact that these offences had been allowed to be committed was to a large extent attributable to the first applicant as he had been the person who had had the final say and had borne responsibility within the company. The Court of Appeal also considered that the fact that the first applicant had not objected to the deceitful way in which permits and exemptions were obtained was worthy of punishment.

45. The Commission finds that the terms in which the Court of Appeal couched its reasoning concerning the sentence were ambiguous and belied the fact that the first applicant was not convicted of any other offences. The wording used created the impression that although the Court of Appeal could not technically convict the first applicant of having ordered or having been in charge of the commission of other offences within the meaning of Section 51 para. 2 of the Criminal Code, it nevertheless regarded him as guilty. In this respect the Commission finds the distinction which the Government seek to make between 'criminally liable' and 'attributable' artificial.

46. Insofar as the Court of Appeal referred to offences committed by the applicant company with which it had not been charged, the Commission observes, moreover, that the first applicant had not been able to exercise the rights of the defence in respect of these offences (cf. Eur. Court HR, Lutz v. Germany judgment of 25 August 1987, Series A no. 123, pp. 25-26, para. 62).

47. As regards the applicant company, the Commission observes that The Hague Court of Appeal convicted it of having attempted to obtain an unlawful advantage by giving false information under false pretences (charge B), deliberately having used false or forged documents (charge D), and having forged documents stating weights and invoices (charges E and F). It is not in dispute that these offences were found proved on the basis of legally recognised evidence submitted during the trial by the prosecuting authorities. The Court of Appeal stated explicitly that the other offences with which the applicant company had been charged had not been proved.

48. Nevertheless, in its reasoning concerning the determination of the sentence to be imposed, the Court of Appeal held that criminal offences, other than those of which it convicted the applicant company, had been committed at the applicant company. Thus, according to the Court of Appeal, the applicant company had persuaded the municipal sanitation departments of The Hague and Voorburg to grant it an exemption which enabled it to dump household refuse in Mellery (Belgium) which it had wrongfully used with the sole purpose of benefiting itself. The Commission notes that the applicant company had not been charged with this offence.  The Commission further observes that the Court of Appeal had declared the indictment in respect of the charge accusing the applicant company of having participated in a legal person with the intention of committing the offence of dumping chemical waste (charge A sub (iii)) null and void. It had, moreover, acquitted the applicant company of the offence of dumping chemical waste on the dates and places specified in the indictment (charge G). Yet when determining the sentence, the Court of Appeal also found that it had emerged from the hearings that the applicant company had many times illegally disposed of chemical waste.

49. The Commission finds untenable the Government's argument to the effect that the Court of Appeal merely considered the fact that other criminal offences had been committed within the applicant company as an aggravating circumstance but that it had not held that these offences had been committed by the applicant company itself. The Commission considers that the wording used by the Court of Appeal was unambiguous, going beyond a description of a "state of suspicion" but containing a finding of guilt (cf. Lutz v. Germany judgment, loc. cit.)

50. Moreover, although the Court of Appeal found that it had emerged from the hearings that criminal offences other than those of which it convicted the applicant company had been committed, the Commission considers that the applicant company did not have an opportunity to exercise the rights of the defence since it had either not been charged with these offences, it had been acquitted of them or the indictment had been declared null and void in respect of them (cf. Lutz v. Germany judgment, loc. cit.).

51. For these reasons, the Commission considers that the reasoning of the Court of Appeal was incompatible with the presumption of innocence in respect of both applicants.

CONCLUSION

52. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 2 of the Convention.

   M.-T. SCHOEPFER                              J.-C. GEUS

      Secretary                                  President

to the Second Chamber                     of the Second Chamber