Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34970/97

by Willem Hendrik KLEIN POELHUIS

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 Willem Hendrik KLEIN POELHUIS against the Netherlands and registered

on 18 February 1997 under file No. 34970/97;

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 1955, and exploits a

pig farm in Haaksbergen, the Netherlands. Before the Commission he is

represented by Mr R.L.H Boas, a lawyer practising in Bergen op Zoom.

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

applicable rules on manure production, the applicant had increased the

number of pigs on his farm in the years 1989, 1990 and 1991, which had

resulted, according to the applicable calculation system on the basis

of flat rates (forfaitaire normen), in an unlawful increase in manure

production.

By judgment of 27 May 1993, the Magistrate for economic offences

(economische politierechter) of the Regional Court (Arrondis-

sementsrechtbank) of Almelo 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 Arnhem. In its interlocutory judgment of

6 December 1993, the Court of Appeal held that the investigation had

not been complete. It decided to hear witnesses and ordered the

summoning of the applicant, a representative of the Ministry of

Agriculture, Nature Conservancy and Fisheries as an expert-witness and

one of the officials of the General Inspection Service of the Ministry

of Agriculture, Nature Conservancy and Fisheries who had inspected the

applicant's farm in order to hear them.

Hearings were held before the Court of Appeal on 22 November 1993

and 14 March 1994, in the course of which the persons summoned were

heard before the Court of Appeal.

On 28 March 1994, the Court of Appeal quashed the judgment of

27 May 1993, convicted the applicant of having unlawfully increased the

production of manure in 1989, 1990 and 1991 and imposed a NLG. 15.000

fine, suspending the payment of NLG. 10.000 of this fine pending a

probation period of two years.

The Court of Appeal only partially accepted the argument of the

defence that the number of pigs he was allowed to keep under the

relevant rules had to be increased. It rejected the argument of the

defence that the determination of the applicant's manure production on

the basis of the statutory flat rates and not on the basis of the real

production was incompatible with Article 6 para. 2 of the Convention.

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

Court (Hoge Raad) on 18 April 1995. It rejected the applicant's

complaint on the use of flat rates in the calculation of manure

production, as this was directly determined in the relevant statutory

and secondary rules. The Supreme Court further held that the statutory

flat rates constituted a material norm of conduct compatible with the

requirements of Article 7 of the Convention.

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.

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 of the Convention that

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

resulting in a situation where the determination of manure production

is being reduced to a counting of pigs' tails, is contrary to the

principle of presumption of innocence.

The applicant further complains that, given their complexity, the

rules on manure production are incompatible with the requirements of

Article 7 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 the

presumption of innocence referred to in Article 6 (Art. 6) of the

Convention.

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

as follows:

"1. ...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

3. ..."

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 he 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 the Manure Act, it is

prohibited to exceed a fixed level of production of manure. 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 real

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 the applicant,

the Court of Appeal has heard a number of witnesses and has provided

the defence with ample opportunity to state its case and to submit

whatever it found relevant, the Commission does not find that the

applicant's defence rights under Article 6 (Art. 6) of the Convention

have been infringed.

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 complexity, the

rules on manure production are incompatible with Article 7 (Art. 7) of

the Convention.

Article 7 (Art. 7) of the Convention provides 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

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 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 his choices in his 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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KLEIN POELHUIS v. THE NETHERLANDS

KLEIN POELHUIS v. THE NETHERLANDS

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