Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 14216/88

R. R. and G. R. against the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 14 October 1991)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18) ......................................... 1-2

A. The application

(paras. 2-5) .................................. 1

B. The proceedings

(paras. 6-13) ................................. 1

C. The present Report

(paras. 14-18) ................................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-35) ........................................ 3-5

A. The particular circumstances of the case

(paras. 19-32) ................................ 3

B. Relevant domestic law

(paras. 33-35) ................................ 4

III. OPINION OF THE COMMISSION

(paras. 36-47) ....................................... 6-7

A. Complaint declared admissible

(para. 36) .................................... 6

B. Point at issue

(para. 37) .................................... 6

C. The alleged violation of Article 6

para. 1 of the Convention

(paras. 38-46) ................................ 6

Conclusion (para. 47) ................................. 7

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 8

APPENDIX II : DECISION ON THE ADMISSIBILITY

OF THE APPLICATION .......................... 9-14

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 applicants, R. R. and G. R., are both Dutch citizens, born

in 1942 and 1912 and residing in Naarden and Tilburg, the Netherlands,

respectively. Before the Commission the applicants are represented by

Mr. Jaap Groen, a lawyer practising in The Hague.

3. The application is directed against the Netherlands. The

respondent Government are represented by their Agent, Mr. Karel de Vey

Mestdagh of the Netherlands Ministry of Foreign Affairs.

4. The application concerns the proceedings related to the

withdrawal from circulation of shirts belonging to the private company

with limited liability "A. B.V.", which the applicants jointly own and

manage. These proceedings started on 2 October 1981 with the seizure

of the shirts and ended on 8 September 1987 with the Supreme Court's

decision to reject the applicant's appeal against the withdrawal order.

5. Before the Commission the applicants complain of the length of

the proceedings and allege a violation of Article 6 para. 1 of the

Convention.

B. The proceedings

6. The application was introduced on 29 February 1988 and

registered on 14 September 1988 under file No. 14216/88. On 4

September 1989, the Commission decided to give notice of the

application to the respondent Government, inviting them to submit

observations in writing on the admissibility and merits of the

application.

7. The Government submitted their observations on 16 November 1989

and the applicants replied on 1 March 1990.

8. On 7 March 1991 the Commission declared the applicants'

complaint under Article 6 para. 1 of the Convention as to the length

of the proceedings admissible and the remainder of the application

inadmissible.

9. On 12 March 1991 the parties were invited, should they so

desire, to submit further observations regarding the merits of the

application.

10. The applicants submitted such observations on 27 March 1991.

The respondent Government's supplementary observations were submitted

on 23 April 1991.

11. The Government maintained their view that domestic remedies

were not exhausted, but the Commission found no basis for applying

Article 29 of the Convention.

12. After having consulted the parties, the Commission decided on

9 April 1991 to refer the case to the First Chamber.

13. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. In the light of the parties' reactions, the

Commission finds that there is no basis on which a friendly settlement

can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

B. MARXER

15. The text of the Report was adopted by the Commission on 14

October 1991 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

(1) to establish the facts, and

(2) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

17. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application forms Appendix II.

18. 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

19. The applicants jointly own a private company with limited

liability called "A. B.V.", hereinafter called A.

20. In the summer of 1981, the late husband of the second

applicant, the owner-manager of A., bought a stock of shirts from Mr.

T. in Zurich, Switzerland. The book value, as stated on the invoice

of these (approximately 99,000) shirts, was NLG 543,907. The shirts

represented a market value to A. of NLG 1,400,000.

21. On 30 September 1981, the shirts, packaged in 1673 boxes, were

presented for importation to the Dutch customs. They were accompanied,

inter alia, by three statements of origin, issued by the Zurich Chamber

of Commerce, specifying Japan as the country of origin, and by an

import licence for 99,000 shirts to be imported from Switzerland and

originating in Japan.

22. On 2 October 1981, the shirts were seized and the authorities

initiated an investigation into their origin, apparently on the

suspicion that the shirts were too inexpensive for them to have been

made in Japan.

23. By letter of 13 January 1982, the competent division of the

Commission of the European Communities in Brussels confirmed that the

shirts had not originated in Japan. Subsequent investigation revealed

that the shirts had been manufactured in South Korea. Textiles from

that country must be accompanied by a South Korean export licence which

must conform to an EEC import quota.

24. On 2 February 1983, the Public Prosecutor requested that the

shirts be withdrawn from circulation (onttrokken aan het verkeer).

Criminal proceedings had been instituted against A. on 12 October 1981.

However, the owner-manager died on 19 May 1983.

25. By decision of 22 June 1983, the Regional Court

(Arrondissementsrechtbank) of Amsterdam, after having adjourned the

case on 19 May 1983 upon request of A., ordered the withdrawal from

circulation of the shirts, but following A.'s appeal on points of law

this order was quashed by the Supreme Court (Hoge Raad) on 10 January

1984.

26. By letter of 26 March 1984, the Public Prosecutor informed A.'s

lawyer that he had conditionally dropped the criminal charges (sepot)

against A.

27. Also on 26 March 1984, the Public Prosecutor made a renewed

request for withdrawal from circulation of the shirts. This request

was dealt with in chambers by the Regional Court of Amsterdam on 5

April 1984, when the case was adjourned indefinitely. The record of

this hearing does not indicate why the case was adjourned.

28. The case was again heard in chambers on 9 November 1984, on

which occasion the Public Prosecutor informed A.'s lawyer he would

unconditionally drop the criminal charges against A., and on 4 January

1985. On 19 February 1985 the Court ordered the withdrawal from

circulation of the shirts. The Court based this decision on the

consideration that the shirts were illegally imported with the

ostensible purpose of circumventing the import quota by means of false

declarations of origin, and that, if they were returned to A., they

would very likely end up on the EEC market after all. Apparently, A.

had repeatedly requested the return of the shirts, so that it could

recoup some of its investment by selling the shirts to a non-EEC

country.

29. The Court considered that A. was not entitled to any

compensation, because A. ought to have known that the shirts were

undervalued for Japanese shirts of their type and fashion. Furthermore,

the Court stated that A. had failed to take action against Mr. T. of

Zurich when it was discovered that the declarations of origin were

false, while A. did make provision for the loss in its accounts in 1981

of NLG 621,150. Since then, A. had nevertheless apparently been

profitable, and it had to be considered that the shirts no longer had

the same value as they did in 1981 because they had gone out of

fashion. Therefore, the Court considered that the applicants did not

suffer disproportionately by the confiscation.

30. Before the Regional Court, A. had complained that the procedure

in chambers violated Article 6 para. 1 of the Convention because the

hearings were not public and the decision was not pronounced publicly.

31. A. appealed on 22 February 1985 to the Supreme Court, inter

alia, on the ground that the procedure leading to the withdrawal from

circulation of their property had exceeded a reasonable time, contrary

to Article 6 para. 1 of the Convention. They did not raise the

non-public character of the proceedings.

32. By decision of 8 September 1987, the Supreme Court rejected the

appeal. It considered, inter alia, that, according to the record of

the hearing, A. had not objected to the indefinite adjournment of the

case on 5 April 1984, nor had A. at any time requested a speedier

treatment of the case or claimed that the procedure had exceeded a

reasonable time.

B. Relevant domestic law

33. The withdrawal from circulation is provided for in Articles 36

b and c of the Penal Code, which read, insofar as relevant, as follows:

"Art. 36b. 1. Onttrekking aan het verkeer van in beslag

genomen voorwerpen kan worden uitgesproken :

[...]

4°. bij een afzonderlijke rechterlijke beschikking op

vordering van het openbaar ministerie.

[...]

Art. 36c. Vatbaar voor onttrekking aan het verkeer zijn

alle voorwerpen:

[...]

5°. [...] voorzover zij van zodanige aard zijn, dat

het ongecontroleerde bezit daarvan in strijd is met de wet

of met het algemeen belang."

"Art. 36b. 1. Withdrawal from circulation of seized

objects can be pronounced :

[...]

4°. by a separate judicial order upon request of the

Public Prosecutor.

[...]

Art. 36c. Liable to withdrawal from circulation are all

objects:

[...]

5°. [...] insofar as they are of such a nature that the

uncontrolled possession thereof is contrary to the law

or the public interest."

34. This provision applies to seized goods which in this way can

be withdrawn from circulation. It implies that the legal ownership of

such goods passes to the State which can then dispose of them. This

can result in, for instance, the destruction of the goods.

35. In its decision of 8 September 1987, the Supreme Court held

that the present case concerned the determination of civil rights and

obligations as the decision on the Public Prosecutor's application for

a withdrawal from circulation of goods immediately determined the

applicants' company's right, as the owner, to dispose of these goods.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

36. The Commission has declared admissible the applicants'

complaint under Article 6 para. 1 (Art. 6-1) of the Convention as to

the length of the proceedings.

B. Point at issue

37. The point at issue is accordingly whether there has been a

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

C. The alleged violation of Article 6 para. 1

(Art. 6-1) of the Convention

1. General considerations

38. Under the terms of Article 6 para. 1 (Art. 6-1) of the

Convention, "in the determination of his civil rights and obligations

a ... tribunal ...".

39. It is not disputed that the proceedings in question, relating

to the withdrawal from circulation of goods belonging to the

applicants' company, concerned a determination of the applicants'

company's "civil rights and obligations" within the meaning of Article

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

40. The Commission recalls that the reasonableness of the length

of proceedings must be assessed according to the circumstances of the

case and with reference to the following criteria: the complexity of

the case and the conduct of the applicant and of the authorities

dealing with the case (see Eur. Court H.R., Zimmermann and Steiner

judgment of 13 July 1983, Series A no. 66, p. 11, para. 24).

2. Determination and assessment of the length of the proceedings

41. Regarding the period to be considered, the Commission notes

that the proceedings at issue in the present case started on 2 October

1981 when the shirts were seized and ended on 8 September 1987 with the

Supreme Court's decision to reject the applicants' company's appeal in

cassation. The relevant period is therefore five years, eleven months

and six days.

42. According to the applicants, this lapse of time cannot be

regarded as "reasonable" within the meaning of Article 6 para. 1 (Art.

6-1) of the Convention.

43. The Government note that the Public Prosecutor applied for the

withdrawal from circulation pending the criminal investigation on 2

February 1983 whereas the Court decided the case on 22 June 1983. The

Supreme Court determined the appeal on 10 January 1984. In the

Government's opinion this initial period was not unreasonably long.

44. The Government further note that on 26 March 1984, the Public

Prosecutor again applied for an order to withdraw the goods from

circulation. The application was dealt with by the Amsterdam Regional

Court for the first time on 5 April 1984 and was determined on 19

February 1985. On 22 February 1985 the applicants' company appealed

to the Supreme Court. On 8 September 1987 the Supreme Court dismissed

the appeal. The Government are again of the opinion that the decisions

of the Regional Court and the Supreme Court on the Public Prosecutor's

second application were given within a reasonable time.

45. The Commission notes that the reasonableness of the length of

courts proceedings should be determined in each case on the basis of

the consideration of the complexity of the case, the conduct of the

applicant and that of the judicial authorities.

In the present case, there may have been a certain complexity in

determining the origin of the shirts, but during the period which is

now at issue the proceedings cannot be said to have been particularly

complex. It does not appear that the proceedings were delayed as a

result of the conduct of the applicants. As regards the conduct of the

judicial authorities, the Commission notes that on 5 April 1984 the

examination of the case by the Regional Court was adjourned

indefinitely and not resumed until 9 November 1984. The reason for

this adjournment has not been explained. Of particular significance

is, however, the delay in the proceedings before the Supreme Court

where the applicants' company's appeal was lodged on 22 February 1985

but the case was not decided until 8 September 1987. No explanation

has been given of why more than two and a half years elapsed before the

Supreme Court decided on the appeal.

46. The Commission therefore considers that the length of the

disputed proceedings was not "reasonable" within the meaning of Article

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

Conclusion

47. The Commission concludes unanimously that there has been a

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

Secretary to the First Chamber President of the First Chamber

(M. de Salvia) (J.A. Frowein)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_______________________________________________________________________

29 February 1988 Introduction of application

14 September 1988 Registration of application

(a) Examination of admissibility

4 September 1989 Commission's decision to

invite the respondent

Government to submit

their observations on the

admissibility and merits of

the application

16 November 1989 Government's observations

1 March 1990 Applicant's observations in

reply

7 March 1991 Commission's decision to

declare the complaint under

Article 6 para. 1 admissible

and the remainder of the

application inadmissible.

Commission's decision to

invite the parties, should

they so desire, to submit

further observations on the

merits of the application

(b) Examination of the merits

27 March 1991 Further observations by the

applicants on the merits of

the application

23 April 1991 Further observations by the

respondent Government on the

merits of the application

9 April 1991 Commission's decision to refer

the case to the First Chamber

14 October 1991 Commission's deliberations on

the merits, final vote and

adoption of the Report

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R.R. AND G.R. v. THE NETHERLANDS

R.R. AND G.R. v. THE NETHERLANDS

LEXI