Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 21981/93

K.D.B.

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 21 May 1997)

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. 16-41). . . . . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-29). . . . . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 30-41). . . . . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 42-63). . . . . . . . . . . . . . . . . . . . . . . . .7

A. Complaints declared admissible

(para. 42). . . . . . . . . . . . . . . . . . . . . . . .7

B. Points at issue

(para. 43). . . . . . . . . . . . . . . . . . . . . . . .7

C. General considerations

(paras. 44-49). . . . . . . . . . . . . . . . . . . . . .7

D. As regards Article 6 para. 1 of the Convention in respect

of the complaint concerning the date on which the Supreme

Court would examine the appeal in cassation

(paras. 50-52). . . . . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 53). . . . . . . . . . . . . . . . . . . . . . . .8

E. As regards Article 6 para. 1 of the Convention in respect

of the complaint concerning the written observations of the

Advocate General

(paras. 54-60). . . . . . . . . . . . . . . . . . . . . .9

CONCLUSION

(para. 61). . . . . . . . . . . . . . . . . . . . . . . 10

F. Recapitulation

(paras. 62-63). . . . . . . . . . . . . . . . . . . . . 10

TABLE OF CONTENTS

CONCURRING OPINION OF MR I. CABRAL BARRETO . . . . . . . . . . . 11

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . 12

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 applicant is a Dutch citizen, born in 1959 and resident in

Snelrewaard, the Netherlands. He was represented before the Commission

by Mr L.J.L. Heukels, a lawyer practising in Haarlem, the Netherlands.

3. The application is directed against the Netherlands. The

respondent Government were represented by their Agent,

Mr K. de Vey Mestdagh, of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the applicant's complaint of unfair civil

proceedings in that he was not informed of the date on which the

Supreme Court would deal with his appeal in cassation and he had not

been granted the opportunity to respond to the written submissions of

the Advocate General. The applicant invokes Article 6 para. 1 of the

Convention.

B. The proceedings

5. The application was introduced on 23 March 1993 and registered

on 28 May 1993.

6. On 6 April 1995 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 21 July 1995

after one extension of the time-limit fixed for this purpose. The

applicant replied on 24 August 1995.

8. On 17 January 1996 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 24 January 1996 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted observations on 13 March 1996, to which the

applicant replied on 19 June 1996.

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:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 21 May 1997 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.

16.II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant runs a farm where he keeps cattle for slaughter.

On 15 November 1991 his farm was inspected by the General Inspection

Department (Algemene Inspectiedienst) of the Ministry of Agriculture,

Nature Management and Fisheries (Ministerie van Landbouw, Natuurbeheer

en Visserij). The General Inspection Department singled out twelve cows

to which the applicant was suspected of having administered a forbidden

substance, i.e. clenbuterol.

18. On the same day the public prosecutor (officier van justitie)

ordered an interim measure (voorlopige maatregel) pursuant to Section

28 of the Code on Economic Offences (Wet op de Economische Delicten),

in that the applicant should refrain from removing the twelve cows

without the public prosecutor's permission. The applicant furthermore

had to refrain from obstructing the identification of his cattle.

19. After tests had proved that clenbuterol had been administered to

nine of the twelve cows, the General Inspection Department seized these

nine cows on 3 December 1991 pursuant to Section 18 of the Code on

Economic Offences. The statement of receipt of the seized goods (bewijs

van ontvangst van in beslag genomen voorwerpen) indicated that an

objection to the seizure could be filed with the Regional Court

(Arrondissementsrechtbank) of Utrecht pursuant to Section 552a of the

Code of Criminal Procedure (Wetboek van Strafvordering). It appears

that the three other cows were returned to the applicant.

20. On 5 December 1991 the public prosecutor demanded authorisation

from the Regional Court of Utrecht for the destruction of the seized

cows, since their care was very costly and their meat was, in any case,

no longer fit for human consumption.

21. On 9 December 1991 the applicant requested the Regional Court

pursuant to Section 28 para. 3 of the Code on Economic Offences to lift

the interim measure of 15 November 1991. At a hearing in chambers

(raadkamer) of the Regional Court on 10 December 1991 the public

prosecutor stated that the interim measure would be withdrawn.

22. On 21 January 1992 the applicant requested the Regional Court to

order the General Inspection Department to test the cows which had

fallen within the ambit of the interim measure once more on the

presence of forbidden substances and to lift the interim measure if the

tests proved negative. The applicant was of the opinion that the way

in which the samples had been taken did not comply with EEC Directive

86/469/EEC and that therefore it was impossible for the Regional Court

to know whether the residue of the forbidden substance, which had been

found, had in fact exceeded the maximum permissible level.

23. Following a hearing in chambers on 21 January 1992 the Regional

Court issued an order given in chambers (beschikking) on

4 February 1992 to the effect that the applicant's request of

9 December 1991 was inadmissible since the public prosecutor had

announced on 10 December 1991 that the interim measure would be

withdrawn. It therefore also rejected the applicant's request of

21 January 1992.

24. The Regional Court also decided on 4 February 1992 to authorise

the public prosecutor, in accordance with his request, to destroy the

nine cows to which clenbuterol had been administered. Shortly after

this decision, the cows were slaughtered.

25. On 13 February 1992 the applicant lodged an appeal in cassation

with the Supreme Court (Hoge Raad) against the Regional Court's order

given in chambers of 4 February 1992. The applicant did not submit

reasons for the appeal in cassation in writing, as he intended to make

his objections against the Regional Court's decisions known through

counsel at the hearing in the cassation proceedings.

26. In the proceedings before the Supreme Court, the Advocate General

(Advocaat-Generaal) submitted as his opinion that the appeal in

cassation should be rejected since he had found no grounds for

cassation ex officio and no memorial of cassation had been submitted.

The Advocate General's submissions also contained a copy of a

preliminary ruling given by the Court of Justice of the European

Communities at the request of the Breda Regional Court concerning the

interpretation of EEC Directive 86/469/EEC. The applicant's counsel had

referred to this request in the proceedings before the Regional

Court.

27. Neither the applicant nor his counsel was informed about the

submissions of the Advocate General.

28. On 1 March 1993 the applicant was notified by the Department of

the Procurator General with the Supreme Court (Parket van de Procureur-

Generaal bij de Hoge Raad) that the Supreme Court in chambers had

rejected his appeal in cassation in a decision of 19 January 1993. The

decision had been given after an examination in chambers. According to

the applicant he had not been notified of the date of the hearing. The

decision of the Supreme Court stated that the appeal in cassation was

directed against an order given in chambers by the Regional Court of

Utrecht of 4 February 1992 in criminal proceedings against the

applicant. The Supreme Court described this order as follows:

"1. The impugned order

The Regional Court has granted the public prosecutor's request;

the Regional Court:

1. Has authorised the keeper of the cows described in the above-

mentioned order to have them destroyed.

2. Has declared the applicant's request of 10 December 1991

inadmissible.

3. Has rejected the applicant's request of 21 January 1992."

29. Following a hearing on 7 October 1993, the Regional Court of

Utrecht convicted the applicant in criminal proceedings on 21 October

1993 of possession of cattle to which clenbuterol had been administered

and of possession of clenbuterol itself. The Regional Court also

ordered the withdrawal from circulation of the seized cows.

30. The applicant lodged an appeal (hoger beroep) with the Court of

Appeal (Gerechtshof) of Amsterdam against the judgment of

7 October 1993. On 4 July 1995 the Court of Appeal also convicted the

applicant and ordered the withdrawal from circulation of the cows. The

applicant has lodged an appeal in cassation with the Supreme Court

against this judgment. These cassation proceedings are currently still

pending.

B. Relevant domestic law

31. The possession of cattle to which certain chemicals have been

administered is an offence pursuant to Section 2 of the Decree on

chemicals with sympathico mimetic effects (Verordening stoffen met

sympathico mimetische werking).

32. Section 28 para. 1 of the Code on Economic Offences provides for

interim measures to be taken by the public prosecutor in cases where

serious objections (ernstige bezwaren) against the accused have been

raised and where the interests protected by the allegedly violated

provision require immediate action.

33. An interim measure may consist of an order to refrain from

certain acts (Section 28 para. 1 (a)) and of an order to ensure that

certain specified goods, which are liable for seizure, are stored and

kept at a specified place (Section 28 para. 1 (b)).

34. The accused may request the court dealing with the prosecution

to lift an interim measure pursuant to Section 28 para. 3. If the

request is refused, the accused may institute an appeal with the Court

of Appeal (Gerechtshof) and, subsequently, an appeal in cassation with

the Supreme Court (Sections 30 and 30a Code on Economic Offences).

35. Pursuant to Section 18 of the Code on Economic Offences goods may

be seized. Unless expressly ruled out in the Code on Economic Offences,

the provisions of the Code of Criminal Procedure apply to the criminal

investigation of economic offences (Section 25 of the Code on Economic

Offences).

36. Interested parties may file a complaint with a court against a

seizure of goods (Section 552a Code of Criminal Procedure, hereinafter

CCP). Pursuant to Section 552d para. 2 CCP an appeal in cassation lies

against the decision of a court in chambers to reject an objection

filed against the seizure of goods.

37. Seized goods unsuitable for long-term storage can be destroyed

if a court grants the prosecution authorisation thereto (Section 117

para. 3 CCP). If the return of seized goods is impossible because of

their destruction, an amount of money, equal to the price obtained for

the goods if sold, is paid out (Section 119 para. 2 CCP).

38. Where it has not been provided that a judicial decision is to be

taken by a court at the actual trial, the court may decide in chambers

(Section 21 para. 1 CCP). Decisions thus taken by a court are known as

orders given in chambers (Section 138 CCP). No appeal or appeal in

cassation lies against orders given in chambers unless the CCP states

otherwise (Section 445 CCP). Such appeals or appeals in cassation are

also dealt with by either a Court of Appeal (Gerechtshof) or the

Supreme Court in chambers. The legal provisions in force at the

relevant time did not provide that the court in chambers had to hear

the accused. However, it follows from Section 35 paras. 1 and 2 that

the accused would be heard by the court in chambers at his request.

39. Sections 445 - 448a of the CCP deal, inter alia, with the

proceedings before the Supreme Court in cases where an appeal in

cassation has been lodged against an order given in chambers. Contrary

to the provisions concerning an appeal in cassation against a judgment

(vonnis/arrest), Sections 445 - 448a do not stipulate that the

appellant is to be informed of the date on which the Supreme Court will

examine the appeal in cassation.

40. At the time the proceedings at issue were taking place, it was

possible for an appellant to submit his grounds for appeal in cassation

as long as the Supreme Court had not decided on the appeal (Section 447

CCP). At present, the memorial of cassation must be submitted within

a month of cassation proceedings being instituted.

41. Pursuant to Section 99 of the Judicial Organisation Act (Wet op

de Rechterlijke Organisatie) an appeal in cassation is limited to

questions of law and procedural conformity.

42. The Procurator General at the Supreme Court, or the Advocates

General who are also competent to fulfil his functions, submits

observations to the Supreme Court in, inter alia, criminal and civil

cases to advise this Court. These observations are submitted in the

shape of a treatise containing references to case-law and legal

literature relevant to the question of law at issue (G.J.M. Corstens,

Het Nederlandse Strafprocesrecht, Gouda Quint b.v., Arnhem 1993, pages

106 and 110). Neither the Procurator General nor the Advocates General

take part in the deliberations of the Supreme Court.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

43. The Commission has declared admissible the applicant's complaints

that he was not informed of the date on which the Supreme Court would

examine his appeal in cassation and that he was unable to respond to

the written submissions of the Advocate General as these were not made

available to him.

B. Points at issue

44. The Commission must accordingly examine:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that the applicant was not

informed of the date on which the Supreme Court would examine his

appeal in cassation; and

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that the applicant did not have

the opportunity to respond to the written observations of the

Advocate General at the Supreme Court.

C. General considerations

45. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ... by (a)

tribunal ..."

46. The Government and the applicant accept that the proceedings

before the Supreme Court concerned a dispute over "civil rights and

obligations" and that they, accordingly, fall within the scope of

Article 6 para. 1 (Art. 6-1) of the Convention. The Commission, noting

that the proceedings concerned the destruction of the applicant's

property, has already found that Article 6 para. 1 (Art. 6-1) of the

Convention applies (see decision on admissibility; cf. Eur. Court H.R.,

Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52,

para. 79).

47. However, in their further observations on the merits of the

application the Government submit that the Supreme Court must have

interpreted the applicant's appeal in cassation as being directed

against the seizure of the cows rather than the authorisation granted

by the Regional Court to slaughter the cows. In this respect they refer

to the provisions of domestic law according to which no appeal in

cassation lies against the granting of such an authorisation whereas

an appeal in cassation is available in proceedings relating to seizures

(paras. 35, 37).

48. The Government thus contend that the question whether or not

Article 6 para. 1 (Art. 6-1) is applicable to the proceedings at issue

is irrelevant since these proceedings did not concern the matter of

which the applicant complains, namely that his cows were slaughtered

pursuant to proceedings which did not comply with paragraph 1 of

Article 6 (Art. 6), but only their seizure.

49. Having regard to the particular circumstances of the case,

however, this argument is unable to convince the Commission. It appears

clearly from the wording of the decision of the Supreme Court of

19 January 1993 that the applicant's appeal in cassation was directed

against the Regional Court's order given in chambers to authorise the

slaughter of the cows, to declare inadmissible the applicant's request

of 10 December 1991 to lift the interim measure and to reject his

request of 21 January 1992 for the cows to be tested again. The Supreme

Court did not declare the appeal in cassation, even partially,

inadmissible, but, no grounds having been submitted by the applicant,

examined the case ex officio.

50. Accordingly, the Commission finds that, regardless of the fact

whether or not pursuant to domestic law an appeal in cassation against

the decision to authorise the destruction of his cattle was available

to the applicant, he did institute such an appeal and the Supreme Court

considered itself competent to examine the appeal on its merits.

D. As regards Article 6 para. 1 (Art. 6-1) of the Convention in

respect of the complaint concerning the date on which the Supreme

Court would examine the appeal in cassation

51. The applicant, basing himself on a provision of the Code of

Criminal Procedure which concerns an appeal in cassation against a

judgment, takes the view that he should have been informed of the date

on which the Supreme Court would examine his appeal. If the applicant

had been informed of this date, counsel would have notified the Supreme

Court in good time that he was acting on behalf of the applicant in

order to submit a memorial in cassation and/or to request an oral

hearing.

52. The Government, pointing out that there had been a public hearing

at first instance, contend that the applicant's lawyer at no time

informed the Supreme Court that he wished to set out the applicant's

objections to the order given in chambers by the Regional Court in

person. Therefore, no date was fixed for oral proceedings.

53. The Commission observes in the first place that the applicant

could have requested the Supreme Court to hold a hearing and that he

could have been expected to ask for a hearing if he considered it

important for him to be heard orally by the Supreme Court

(cf. para. 37). Noting, moreover, that a hearing had taken place before

the Regional Court in chambers and that the Supreme Court does not

review the case on the facts but only considers questions of law and

compliance with procedural requirements (cf. Eur. Court HR, Ekbatani

judgment of 26 May 1988, Series A no. 134, p. 14, para. 31; and Jan-Ã…ke

Andersson judgment of 29 October 1991, Series A no. 212-B, p. 45,

para. 27), the Commission considers that in the circumstances of the

present case the applicant was not deprived of the possibility of

putting his case, or having his case put, to the Supreme Court in a

concrete and effective manner.

CONCLUSION

54. The Commission concludes, unanimously, that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant was not informed of the date on which the Supreme Court would

deal with his appeal in cassation.

E. As regards Article 6 para. 1 (Art. 6-1) of the Convention in

respect of the complaint concerning the written observations of

the Advocate General

55. The applicant submits that if he had received the Advocate

General's submissions, his lawyer would have indicated to the Supreme

Court that there were grounds for cassation owing to the fact that the

proceedings before and the decision of the Utrecht Regional Court did

not satisfy the provisions contained in EEC Directive 86/469/EEC.

56. The Government argue that it was not possible to transmit the

submissions of the Advocate General to the applicant's counsel since

the latter had failed to notify the Supreme Court that he was acting

on the applicant's behalf. Neither had counsel requested the forwarding

of the Advocate General's submissions, contrary to existing practice

with which he should have been familiar. Such requests are always

granted. In the opinion of the Government, the submissions of the

Advocate General did in any event not contain any arguments of

substance and the applicant's defence rights were therefore not harmed.

57. The Commission has had regard to the Court's judgments in the

cases of Borgers v. Belgium (Eur. Court HR, judgment of 30 October

1991, Series A no. 214-B) and Vermeulen v. Belgium (judgment of

20 February 1996, Reports 1996-I, No. 3, p. 224). The Commission notes

furthermore that the function of the Department of the Procurator

General at the Supreme Court is comparable to that of the procureur

général at the Belgian Cour de Cassation.

58. However, contrary to the facts in the Borgers case, the

Procurator General or the Advocate General in the Netherlands does not

take part in the deliberations of the Supreme Court (see para. 41). The

Commission notes that the Court attached considerable relevance to this

aspect in its Borgers judgment since it found above all that the

participation of the avocat général in the deliberations of the Cour

de Cassation had increased the inequality of arms. However, in its

Vermeulen v. Belgium judgment, the Court found that the impossibility

to reply to the submissions of the avocat général in itself amounted

to a violation of Article 6 para. 1 (Art. 6-1) of the Convention and

that this breach in question was aggravated by the avocat général's

participation in the deliberations of the Cour de Cassation (op. cit.,

paras. 33, 34).

59. The Commission notes in the present case that in his written

observations the Advocate General, having found no lacunae in the

impugned decision, expressed as his opinion that the appeal in

cassation should be dismissed. His written observations were

accompanied by a copy of a preliminary ruling given by the Court of

Justice of the European Communities at the request of the

Breda Regional Court concerning the interpretation of EEC Directive

86/469/EEC. The applicant's counsel had referred to this request in the

proceedings before the Regional Court.

60. Despite the fact that the Advocate General's submissions did not

contain any substantive legal arguments, by recommending the Supreme

Court to reject the appeal in cassation he became objectively speaking

the applicant's opponent (cf. the above-mentioned Borgers judgment,

op. cit., p. 32, para. 26). However, the applicant was not provided

with a copy of the Advocate General's submissions and was thus unable

to submit observations in reply.

61. The Commission cannot see the justification for such a

restriction on the rights of the defence in the present case. Once the

Advocate General had made submissions unfavourable to the applicant,

the latter had a clear interest in being able to submit his

observations before argument was closed. Consequently, the Commission

finds that the proceedings at issue did not comply with the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

62. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant did not have the opportunity to respond to the written

observations of the Advocate General at the Supreme Court.

F. Recapitulation

63. The Commission concludes, unanimously, that there had been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant was not informed of the date on which the Supreme Court would

deal with his appeal in cassation (para. 53).

64. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant did not have the opportunity to respond to the written

observations of the Advocate General at the Supreme Court (para. 61).

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

(Or. français)

OPINION CONCORDANTE DE M. I. CABRAL BARRETO

En dépit des arrêts rendus par la Cour européenne des Droits de

l'Homme dans les affaires Lobo Machado c. Portugal et Vermeulen

c. Belgique (arrêts du 20 février 1996, Recueil 1996-I, N° 3), je

souhaite rester fidèle à l'opinion dissidente que j'ai exprimée dans

chacun des deux rapports de la Commission concernant ces affaires.

De mon point de vue, considérer, dans le cadre d'une procédure

civile qui se déroule entre deux parties, l'intervention, et ce en

toute objectivité et impartialité, du ministère public comme celle d'un

"allié" ou d'un "adversaire objectif" d'une quelconque partie, c'est

méconnaître la véritable raison d'être de cette intervention qui est

de veiller à l'interprétation correcte de la loi et à assurer l'unité

et la cohérence de la jurisprudence comme un auxiliaire et conseiller

de la Cour, ainsi que comme défenseur de l'ordre public.

Toutefois, dans le cas présent, le ministère public tenait

lui-même le rôle de partie adversaire du requérant dans la procédure

interne; dès lors et compte tenu des apparences, l'intervention de

l'avocat général ne peut être considérée que comme la suite de celle

du ministère public.

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K.D.B. v. THE NETHERLANDS

K.D.B. v. THE NETHERLANDS

LEXI