Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31467/96

by Willem Arend SPIELE

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, 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

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 February 1996

by Willem Arend SPIELE against the Netherlands and registered on

13 May 1996 under file No. 31467/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1948, and resides in

De Lutte, the Netherlands. Together with his brother, the applicant

exploits a cattle farm. In the proceedings before the Commission he is

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

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 28 August 1991, a preliminary judicial investigation

(gerechtelijk vooronderzoek) was opened against the applicant and his

brother on suspicions that on their farm substances with sympathico

mimetic effects were present and/or were administered to cattle.

On 5 September 1991, the public prosecutor at the Regional Court

(Arrondissementsrechtbank) of Almelo issued an interim measure

(voorlopige maatregel) within the meaning of Article 28 of the Act on

Economic Offences. The public prosecutor ordered the applicant and his

brother to refrain from removing from their farm cattle registered by

the General Inspection Department (Algemene Inspectiedienst,

hereinafter referred to as "AID") of the Ministry of Agriculture,

Nature Management and Fisheries (Ministerie van Landbouw, Natuurbeheer

en Visserij) unless prior permission had been given by the public

prosecutor and to refrain from preventing the identification of cattle

on their farm.

On 6 September 1991 the public prosecution department of the

Regional Court of Almelo issued a press-release stating that in the

context of preliminary judicial investigations (gerechtelijke

vooronderzoeken) into suspected trafficking in and use of prohibited

growth inducing veterinarian drugs and related offences house searches

had taken place on 45 places in both the Netherlands and abroad. The

press-release further stated that the investigation concerned a

pharmaceutical company, several veterinaries in the Netherlands, cattle

traders and cattle farmers.

On the same day, the farm exploited by the applicant and his

brother was searched by AID officials. They took a sample of the

contents of a bucket found on the premises, a urine sample of a young

bull found in the direct vicinity of the bucket and seized a number of

veterinarian drugs found on the premises.

On 17 September 1991, the Netherlands State Institute for the

Quality of Agricultural and Horticultural Products

(Rijkskwaliteitsinstituut voor Land- en Tuinbouwproducten) reported

that the urine sample taken had been tested and found positive for

clenbuterol.

The applicant's objection (bezwaar) against the interim measure

of 5 September 1991 was rejected by the Regional Court of Almelo on

30 September 1991. The court noted that the samples taken on the

applicant's farm had been tested and found positive for clenbuterol.

On 25 October 1991, the public prosecutor seized (inbeslagname)

the young bull of which a urine sample had been taken on

6 September 1991.

On 1 November 1991, the public prosecutor seized 45 bulls on the

applicant's farm. The animals were identified by numbers and

subsequently removed from the farm.

The applicant's objection (beklag) against the seizure was

rejected on 18 November 1991 by the Regional Court of Almelo. The

Regional Court noted that the applicant had stated before two judicial

officers, a police officer and his lawyer that he had administered

Ventipulmin, a veterinarian drug containing clenbuterol, to the

45 seized animals, who were older than 14 weeks whereas, pursuant to

the Decree on chemicals with sympathico mimetic effects of

9 January 1991 (Verordening stoffen met sympathico mimetische werking,

hereinafter referred to as "Decree"), it is prohibited to administer

clenbuterol to cattle older than 14 weeks or to hold, buy or sell such

cattle.

On 6 January 1992, pursuant to Article 117 of the Code of

Criminal Procedure (Wetboek van Strafvordering), the public prosecutor

sought permission for the destruction of the young bull seized on

25 October 1991 as it would never be suitable for human or animal

consumption purposes. Following a hearing held on 15 January 1992, the

Regional Court meeting in Chambers (Raadkamer) granted the request on

23 January 1992. It found that the animal was older than 14 weeks, had

been administered a clenbuterol containing drug shortly before

6 September 1991 and that consequently the animal was unsuitable for

consumption purposes.

The applicant was subsequently summoned to appear before the

Regional Court of Almelo on charges of offences under the Decree and

the Act on veterinarian drugs (Diergeneesmiddelenwet, hereinafter

referred to as "DGW").

By judgment of 5 November 1992, the Regional Court convicted the

applicant of offences under the Decree and the DGW and sentenced him

to payment of four fines amounting to a total of 3,500 Dutch guilders.

It further ordered the withdrawal from circulation (onttrekking aan het

verkeer) of the 45 bulls seized on 1 November 1991, the bull seized on

25 October 1991 and a total of 470 veterinarian drug doses.

On 19 November 1992, both the prosecution and the applicant filed

an appeal with the Court of Appeal (Gerechtshof) of Arnhem.

On 6 May 1993, pursuant to Article 117 of the Code of Criminal

Procedure, the public prosecutor requested the Court of Appeal of

Arnhem to order the destruction of the 45 bulls seized on

1 November 1991.

Following a hearing held in chambers on 17 May 1993, the Court

of Appeal granted the prosecution's request by decision of 25 May 1993.

In its judgment of 2 May 1994, following adversarial proceedings

in which hearings were held on 7 February 1994 and 18 April 1994, the

Court of Appeal quashed the judgment of 5 November 1992, convicted the

applicant of offences under the Industrial Organisation Act (Wet op de

Bedrijfsorganisatie) and the DGW and ordered the confiscation

(verbeurdverklaring) of the 45 bulls seized on 1 November 1991, the

bull seized on 25 October 1991 and a total of 470 veterinarian drug

doses. Given the value of the confiscated animals and items, the Court

of Appeal did not find it necessary to impose any additional sanctions.

The Court of Appeal based its conviction on, inter alia, the

applicant's statement made before the court on 7 February 1994

confirming the administration of Ventipulmin to the 46 animals seized

on his farm. The Court of Appeal did not accept the applicant's

argument that the animals had been administered Ventipulmin on medical

grounds upon advice of the veterinarian Mr. Z.

Insofar as the applicant has argued that the Dutch prohibition

against administering, for medical treatment, the clenbuterol

containing drug Ventipulmin to calves older than 14 weeks is contrary

to the EC Directives 81/602, 88/146 and 86/469 and in this connection

referred to the judgment of the Court of Justice of the European

Communities of 8 October 1992 in the case C-143/91, the Court of Appeal

held that the respective scopes of the first two Directives differed

from that of the Decree and that it did not find that the prohibition

contained in the Decree was contrary to any provision of the third

Directive. It noted in this respect that the applicant had failed to

indicate with which provision of this third Directive the Decree was

incompatible. As it found that no interpretation of the Directives was

necessary for deciding the applicant's case, the Court of Appeal did

not find it necessary to seek a preliminary ruling from the Court of

Justice on the points raised by the applicant.

The applicant filed an appeal in cassation with the Supreme Court

(Hoge Raad).

In its judgment of 24 October 1995, the Supreme Court rejected

the applicant's argument that the prohibition in Dutch law against the

administration of the clenbuterol containing veterinarian drug

Ventipulmin to calves older than 14 weeks is contrary to the specific

EEC Directives. The Supreme Court accepted the reasons given by the

Court of Appeal for rejecting the applicant's arguments on this point.

As to the failure of the Court of Appeal to respond to the

applicant's argument that, on the basis of the EC Directive 81/602 and

the Further Rules on Veterinarian Drugs Containing Clenbuterol (Nadere

regeling diergeneesmiddelen die clenbuterol bevatten) he was allowed

to administer Ventipulmin to his cattle, the Supreme Court held that

this failure could not lead to cassation as the Court of Appeal could

only have rejected this argument. The Supreme Court noted on this point

that, in the cassation proceedings, the applicant had not or

insufficiently contested the Court of Appeal's factual finding that

clenbuterol was not a substance covered by the EC Directives 81/602 and

88/146. According to the Supreme Court, the applicant had unjustly

relied on EC Directive 81/602. It further noted that both the Decree

and the Further Rules on Veterinarian Drugs Containing Clenbuterol

prohibit the administration of clenbuterol containing drugs to calves

older than 14 weeks.

After an ex officio examination of the judgment of the Court of

Appeal, the Supreme Court found that the Court of Appeal had

incorrectly qualified one of the offences of which it had convicted the

applicant. Consequently, it quashed the judgment of 2 May 1994 as

regards this qualification and corrected the qualification itself. It

rejected the appeal in cassation for the remainder.

COMPLAINTS

1. The applicant complains under Article 6 and Article 10 of the

Convention that the Court of Appeal and the Supreme Court rejected his

argument that he should have been acquitted (vrijspraak) or discharged

(ontslag van rechtsvervolging) as a conviction would be contrary to a

judgment of the Court of Justice of the European Communities and that

this question should, at least, have been put to the Court of Justice

for a preliminary ruling.

2. The applicant complains under Article 7 of the Convention that,

since the drugs at issue had been administered for medical purposes on

the conditions referred to in the judgment of the Court of Justice of

the European Communities of 8 October 1992 in the case C-143/91, this

treatment was not a punishable offence under EC rules and thus

international law.

THE LAW

1. The applicant complains under Article 6 and Article 10

(Art. 6, 10) of the Convention that he has been unjustly convicted and

that the courts involved failed to seek a preliminary ruling on a

relevant point from the Court of Justice of the European Communities.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by a ...

tribunal...."

The Commission recalls its constant case-law that it is not

competent to examine alleged errors of fact or law committed by

national courts, except where it considers that such errors might have

involved a possible violation of the rights and freedoms set forth in

the Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).

The Commission further recalls that the Convention does not

guarantee as such any right to have a case referred to the Court of

Justice of the European Communities for a preliminary ruling under

Article 177 (3) of the EEC Treaty. Nevertheless, a refusal of a request

for such a referral may infringe the fairness of proceedings if it

appeared to be arbitrary (cf. No. 20631/92, Dec. 12.5.93, D.R. 74,

p. 274; and No. 15669/89, Dec. 28.6.93, D.R. 75, p. 39).

The Commission notes that the domestic courts have considered and

rejected the applicant's arguments relating to the compatibility of the

prohibition at issue with the EC rules relied on by the applicant. The

domestic courts rejected these arguments on the basis of reasons stated

in the relevant judgments.

The Commission cannot find that the reasons given for refusing

to seek a preliminary ruling from the Court of Justice of the European

Communities can be regarded as unreasonable or arbitrary.

The Commission further notes that the applicant was convicted

following adversarial proceedings in which he was given ample

opportunity to state his case and to submit whatever he found relevant

to the outcome of these proceedings.

In these circumstances, the Commission finds no indication that

the proceedings against the applicant fell short of the requirements

of Article 6 (Art. 6) of the Convention as regards the fairness of

proceedings.

The applicant also complains that his conviction and the refusal

to seek a preliminary ruling violate his rights under Article 10

(Art. 10) of the Convention, which guarantees the freedom of

expression.

The Commission considers that the facts of the present case do

not disclose an issue under Article 10 (Art. 10) of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains under Article 7 (Art. 7) of the

Convention that the facts he was charged with cannot be regarded as

constituting a criminal offence.

Article 7 (Art. 7) of the Convention reads as follows:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the time

when it was committed. Nor shall a heavier penalty be imposed

than the one that was applicable at the time the criminal offence

was committed.

2. This Article shall not prejudice the trial and punishment

of any person for any act or omission which, at the time when it

was committed, was criminal according to the general principles

of law recognised by civilised nations."

The Commission recalls that Article 7 (Art. 7) of the Convention

confirms the principle that legal provisions which interfere with

individual rights must be adequately accessible and formulated with

sufficient precision to enable individuals to regulate their conduct.

It prohibits in particular the extension of existing offences to cover

facts which previously clearly did not constitute a criminal offence

(cf. No. 18892/91, Dec. 3.12.93, D.R. 76, p. 51).

The Commission notes that the applicant does not contest that the

facts of which he was convicted by the domestic courts constituted a

punishable offence under Dutch law at the relevant time. He did,

however, unsuccessfully challenge the compatibility of the relevant

Dutch rules with EC rules on the basis of the argument that the drugs

at issue had been administered for medical purposes, an argument which

was rejected by the domestic courts.

In these circumstances and recalling that it cannot entertain

complaints to the effect that national courts reached incorrect

findings as to the facts and law, the Commission considers that the

applicant's conviction does not disclose an issue under Article 7

(Art. 7) of the Convention.

It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SPIELE v. THE NETHERLANDS

SPIELE v. THE NETHERLANDS

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