Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31463/96

by Maatschap E.C. Dortmans & H.J.A. Dortmans

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 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 16 October 1995

by Maatschap E.C. Dortmans & H.J.A. Dortmans against the Netherlands

and registered on 13 May 1996 under file No. 31463/96;

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 legal person (maatschap), formed by two Dutch

citizens, and established at Son, the Netherlands. The applicant

exploits a pig and cattle farm. Before the Commission it is represented

by Th.J.H.M. Linssen, a lawyer practising in Tilburg.

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

summarised as follows.

1. Particular circumstances of the case

In the course of an inspection by officials of the General

Inspection Service of the Ministry of Agriculture, Nature Conservancy

and Fisheries (Algemene Inspectiedienst van het Ministerie van

Landbouw, Natuurbeheer and Visserij) it was found that, contrary to the

Manure Act, the applicant had transferred a part of the "reference

quantity" of cattle (manure) to the "reference quantity" of pigs

(manure), which had resulted, according to the applicable calculation

system on the basis of flat rates (forfaitaire vaststelling), in an

increase in manure production, equally contrary to the Manure Act.

By judgment of 16 September 1993, the Magistrate for economic

offences (economische politierechter) of the Regional Court (Arrondis-

sementsrechtbank) of 's-Hertogenbosch acquitted the applicant of

offences under the Manure Act (Meststoffenwet) for lack of evidence.

The prosecution filed an appeal with the Court of Appeal (Gerechtshof)

of 's-Hertogenbosch.

On 17 December 1993, the Court of Appeal quashed the judgment of

16 September 1993, acquitted the applicant of one charge, convicted it

of having breached the Manure Act by having unlawfully increased its

production of manure between 1 January and 31 December 1991 and imposed

a NLG. 10.000 fine.

The Court of Appeal rejected the argument of the defence that the

applicant, by using low phosphate feeding, had not exceeded the

permissible manure production under the Manure Act and that the

calculation of the applicant's manure production on the basis of the

statutory flat rates (forfaitaire bepalingen) was incompatible with

Article 6 para. 2 of the Convention in that it constituted an

unacceptable way of establishing evidence in criminal proceedings. The

Court of Appeal held that the relevant rules constituted a material

norm of conduct and that, even assuming that the applicant would be

able to prove that in reality less manure had been produced, the

prohibition of livestock extension would remain linked to a phosphate

production per animal fixed by flat rates.

The applicant's appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 18 April 1995. The Supreme Court rejected the

applicant's complaint of the use of flat rates in the calculation of

manure production, this being directly determined in the relevant

statutory rules. The Supreme Court further upheld the Court of Appeal's

finding that the statutory flat rates constituted a material norm of

conduct and were not contrary to rules on evidence in criminal

proceedings.

The Supreme Court further rejected the argument that the term

"production" in paragraphs 1 and 5 of the Manure Act were to be

interpreted as actual manure production as opposed to assessed

production on the basis of flat rates and upheld the finding of the

Court of Appeal that, even assuming that the applicant would be able

to prove that in reality less manure had been produced, it would still

be bound by the assessment of its production on the basis of the

statutory flat rates.

2. Relevant domestic law

Pending the adoption of the Manure Act, the Dutch Parliament

adopted the Interim Act on Restrictions on Pig and Poultry Farms

(Interimwet Beperking varkens- en pluimveehouderijen - hereinafter

referred to as the "Interim Act"). The Interim Bill had been submitted

to Parliament on 2 November 1984 and the Interim Act entered into force

on 10 January 1985. Parliament found it necessary to adopt an Interim

Act in view of the urgent need to control the production of manure by

livestock farms given its undesired environmental effects. Under the

Interim Act it was prohibited, as from 3 November 1984, to increase the

livestock of pig and poultry farms and thus the output of manure.

On 27 November 1986 the Dutch Parliament adopted the Manure Act

replacing the Interim Act. The Manure Act entered into force on

1 January 1987. Pursuant to Articles 6 and 8 of the Manure Act, further

rules in respect of the application of the Manure Act were set by Order

in Council (Algemene Maatregel van Bestuur), i.e. the Manure

Registration Order (Registratiebesluit Dierlijke Meststoffen) and the

Rules indicating animal species and their manure production (Regeling

aanwijzing diersoorten en hun mestproductie).

The Manure Act thus established certain norms on the basis of

which the permitted quantity of manure produced can be determined for

each individual farm. The quantity thus determined is, in practice,

referred to as the "reference quantity of manure" (referentie-

hoeveelheid dierlijke meststoffen). The reference quantity for a farm

is determined on the basis of flat rates, which differ for each animal

species, and on the basis of the situation of this farm on

31 December 1986.

Pursuant to Article 14 of the Manure Act it is prohibited to

increase the production of manure, insofar as this increase would

result in a situation where the total production of manure, calculated

on the basis of flat rates per animal species, is or exceeds

125 kilogrammes of phosphate per hectare per year of the exploitable

surface of the farm. Article 14 of the Manure Act also prohibits

transfer of a reference quantity from one animal species to another.

A violation of Section 14 of the Manure Act may result in

criminal proceedings pursuant to the Act on Economic Offences (Wet op

de Economische Delicten).

COMPLAINTS

The applicant complains under Article 6 para. 2 of the Convention

that the use of flat rates for the calculation of manure production,

which constitutes an irrefutable presumption against which no evidence

is allowed, is contrary to the principle of presumption of innocence.

The applicant further complains that, given their extreme

complexity, the rules on manure production are incompatible with

Article 7 para. 1 of the Convention.

THE LAW

1. The applicant complains that the use of flat rates for the

calculation of permissible manure production is contrary to Article 6

para. 2 (Art. 6-2) of the Convention.

Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

Insofar as the applicant can be understood as complaining that

the domestic courts erred in their assessment of the evidence by

failing to accept the argument of the defence that regard should be had

to the actual production of manure on the farm it exploits, the

Commission recalls in the first place its constant case-law that it

cannot examine alleged errors of fact or law committed by national

courts, unless it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

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

Secondly, the Commission recalls that Article 6 para. 2

(Art. 6-2) of the Convention does not prohibit presumptions of fact or

law in principle. Rather, it requires States to confine presumptions

within reasonable limits which take into account the importance of what

is at stake and maintain the rights of the defence (cf. Eur. Court HR,

Salabiaku v. France judgment of 7 October 1988, Series A no. 141, p.

16, para. 29; and Pham Hoang v. France judgment of 25 September 1992,

Series A no. 243, p. 21, para. 33).

The Commission notes that, pursuant to Article 14 of the Manure

Act, it is prohibited to transfer reference quantities from one animal

species to another. The Commission further notes that the calculation

of manure production per animal species has been determined in

statutory and secondary legislation, according to which this

calculation is to be made on the basis of flat rates.

Having regard to the aim and purpose of the environmental

legislation and the obvious technical difficulties in determining

manure production in individual cases, the Commission cannot find that

the presumption at issue, i.e. the calculation of manure production

based on flat rates per animal species, oversteps reasonable limits for

the purposes of Article 6 para. 2 (Art. 6-2) of the Convention.

Moreover, noting that in the proceedings against it the applicant

has not disputed the facts underlying the charges at issue and has not

been restricted in the exercise of its defence rights guaranteed by

Article 6 (Art. 6) of the Convention, the Commission does not find that

the applicant's rights under Article 6 para. 2 (Art. 6-2) of the

Convention have been infringed in the proceedings at issue.

It follows that this complaint must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains that, given their extreme

complexity, the rules on manure production are incompatible with

Article 7 para. 1 (Art. 7-1) of the Convention.

Article 7 para. 1 (Art. 7-1) of the Convention provides as

follows:

"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."

The Commission notes in the first place that this complaint has

not been raised in the domestic proceedings. The question thus arises

whether the applicant has complied with the requirement of exhaustion

of domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention (cf. No. 19601/92, Dec. 19.1.95, D.R. 80, p. 46).

However, the Commission does not find it necessary to determine

this issue as the present complaint is in any event inadmissible for

the following reasons.

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

embodies, inter alia, the principle that only the law can define a

crime and prescribe a penalty and the principle that criminal law must

not be extensively construed to an accused's detriment, for instance

by analogy. From these principles it follows that an offence must be

clearly defined in the law. This requirement is satisfied where the

individual concerned can reasonably foresee from the wording of the

relevant provision and, if need be, with the assistance of the courts'

interpretation of it, what acts and omissions will make him criminally

liable.

When referring to "law", Article 7 (Art. 7) of the Convention

alludes to the very same concept as that to which the Convention refers

elsewhere when using that term, a concept which comprises statutory law

as well as case-law and implies qualitative requirements, notably those

of accessibility and foreseeability. The scope of the notion of

foreseeability depends to a considerable degree on the content of the

text at issue, the field it is designed to cover and the number and

status of those to whom it is addressed.

A law may still satisfy the requirement of foreseeability even

if the person concerned has to take appropriate legal advice to assess,

to a degree that is reasonable in the circumstances, the consequences

which a given action may entail. This is particularly true in relation

to persons carrying on a professional activity, who are used to having

to proceed with a high degree of caution when pursuing their

occupation. They can on this account be expected to take special care

in assessing the risks that such activity entails (Eur. Court HR,

Cantoni v. France judgment of 15 November 1996, to be published in

Reports 1996, paras. 29, 31 and 35).

The Commission notes that the applicant exploits a pig and cattle

farm and that the relevant rules had been adopted already a number of

years prior to the events at issue. In these circumstances and in the

light of the principles set out above, the Commission is of the opinion

that the detailed and explicit rules at issue were sufficiently clear

to enable the applicant, if need be with appropriate advice, to foresee

the possible consequences under the legislation on manure production

of its choices in its professional activities.

It follows that this complaint must also be rejected as

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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MAATSCHAP DORTMANS & DORTMANS v. THE NETHERLANDS

MAATSCHAP DORTMANS & DORTMANS v. THE NETHERLANDS

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