Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23908/94

by M.F.B.V.

against the Netherlands

The European Commission of Human Rights sitting in private on

7 March 1996, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 March 1994 by

M.F.B.V. against the Netherlands and registered on 18 April 1994 under

file No. 23908/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

16 December 1994 and the observations in reply submitted by the

applicant on 28 February 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch company with limited liability having

its registered seat at Barendrecht, the Netherlands. It is represented

by Mr. J.M. Sjöcrona, a lawyer practising in The Hague.

The facts as presented by the parties may be summarised as

follows.

a. Particular circumstances of the case

On 2 and 4 December 1992 the Economic Control Service

(Economische Controle Dienst) seized deep-frozen cherries and

blackberries belonging to the applicant company, the reason being that

they were believed to have been imported in violation of the 1992

Serbia and Montenegro Sanctions Order (Sanctiebeschikking Servië en

Montenegro), such importation constituting an offence against the Act

on Economic Offences (Wet op de Economische Delicten).

On 10 December 1992 the applicant company filed an objection

(beklag) within the meaning of Section 552a of the Code of Criminal

Procedure (Wetboek van Strafvordering, hereinafter referred to as

"CCP"), requesting that the seizure be lifted and that its goods be

returned. Following adversarial proceedings in which the applicant

company was represented by the lawyer Mr. F.L., the Regional Court

(Arrondissementsrechtbank) of Arnhem rejected the objection in its

decision (beschikking) of 1 February 1993.

On 11 February 1993 the applicant company lodged an appeal in

cassation with the Supreme Court (Hoge Raad) against the decision of

the Regional Court.

On 15 February 1993 the Regional Court transmitted the case-file,

including the full text of the decision of 1 February 1993, to the

Supreme Court.

In his letter of 22 February 1993, Mr. J.M. Sjöcrona informed the

Registrar of the Supreme Court that he would represent the applicant

company in the cassation proceedings. Mr. Sjöcrona further requested

to be provided with the customary copies of the relevant documents of

the case-file as soon as possible. He also informed the Registrar that

the applicant company's previous lawyer had, by letter of

10 February 1993, requested the Regional Court to transmit the case-

file as soon as possible to the Supreme Court. A copy of that letter

was submitted for information. Mr. Sjöcrona finally requested the

Supreme Court to deal with the case expeditiously given the perishable

nature of the seized goods.

On 1 March 1993, the time-limit contained in Section 447 para.

3 CCP for the submission of the applicant company's grounds of

cassation (middelen van cassatie) expired. At that point in time no

such grounds had been submitted.

On 18 March 1993 Mr. Sjöcrona's secretary contacted the Registry

of the Supreme Court by telephone and was informed that the case-file

had arrived in the meantime, that the case would be dealt with

expeditiously, but that no specific information could be given as

regards the question as to when copies of the relevant documents in the

case-file would be provided to Mr. Sjöcrona or when the case would be

dealt with as the responsible person was absent until 22 March 1993.

On 23 March 1993 the Registry of the Supreme Court sent the

copies of the case-file to Mr. Sjöcrona, who submitted the applicant

company's grounds of cassation in a memorial dated 8 April 1993.

On 26 July 1993 the Procurator-General (Procureur-Generaal) to

the Supreme Court, in his advisory opinion to the Supreme Court, noted

that the applicant company's memorial had not been submitted within the

time-limit provided for in Section 447 para. 3 CCP and that the Supreme

Court, therefore, could not to take it into account. The Procurator-

General stated that, therefore, the appeal could not lead to cassation.

He further found no grounds for cassation ex officio.

On 5 October 1993 the Supreme Court rejected the appeal. It held

that, as the grounds of cassation had not been submitted within one

month from the date on which the appeal in cassation had been lodged,

it could, therefore, not examine these grounds. The Supreme Court

further found no reason to quash the appealed decision ex officio. The

Supreme Court's decision was received by the applicant company on

8 November 1993.

By letter of 10 November 1993 addressed to the President of the

Criminal Law Section of the Supreme Court, Mr. Sjöcrona complained that

he has only received the relevant copies of the case-file after the

expiry of the time-limit. He further submitted a copy of his letter of

22 February 1993 and informed the President of what the Supreme Court

Registry had stated by telephone on 18 March 1993. He finally informed

the President that he had not received a copy of the Procurator-

General's opinion of 26 July 1993 together with the Supreme Court's

decision of 5 October 1993 until on 8 November 1993.

By letter of 19 November 1993, the President of the Criminal Law

Section of the Supreme Court informed Mr. Sjöcrona that unfortunately

the Supreme Court had not been aware of this state of affairs, but that

the Supreme Court had examined the contested decision ex officio.

The parties have not stated whether or not criminal proceedings

have been brought against the applicant company.

b. Relevant domestic law

According to Section 94 CCP, items which may serve to establish

the truth or whose confiscation (verbeurdverklaring) or withdrawal from

circulation (onttrekking aan het verkeer) can be ordered are liable to

be seized (inbeslagneming).

Under Section 18 of the Act on Economic Offences the competent

investigating officers (opsporingsambtenaren) may seize goods liable

for seizure.

Pursuant to Section 6 para. 2 of the Act on Economic Offences,

apart from prison sentences and/or fines, certain additional

punishments may also be imposed for offences against the Act on

Economic Offences. These additional punishments are, inter alia,

confiscation of goods and claims referred to in Section 33a of the

Criminal Code (Wetboek van Strafrecht, hereinafter referred to as

"CC").

Section 33a CC defines what is liable for confiscation. This

includes, inter alia, items and/or claims partially or wholly obtained

by criminal offences or through the proceeds thereof and items with

which such offences have been committed.

According to Section 33 CC, confiscation may be pronounced

following a conviction of any criminal offence.

Withdrawal from circulation is provided for in Section 36b,

Section 36c and Section 36d CC. Withdrawal from circulation entails

that the ownership of (already seized) items passes to the State, which

can then dispose of them. Under Section 36b CC withdrawal from

circulation can be pronounced either by a judgment or, in the absence

of criminal proceedings, by a separate judicial order upon the request

of the public prosecutor when it is found that the items concerned are

of such a nature that their uncontrolled possession is contrary to the

law or the public interest. Consequently, a conviction is no

prerequisite for an order for withdrawal from circulation.

Under Section 552b CCP, interested parties other than the

convicted person may file an objection against the confiscation or

withdrawal from circulation of items belonging to such parties. If the

objection is held to be founded, the competent court may order the

revocation of the confiscation or withdrawal from circulation. If the

court revokes a confiscation, it can nevertheless order the withdrawal

from circulation if the items concerned are eligible for such an order.

Pursuant to Section 552a para. 1 CCP interested parties including

the suspect may file an objection against, inter alia, a seizure, the

use of seized items and the delay in ordering their return. If the

competent court finds the objection well-founded, it will issue a

corresponding order. The proceedings under Section 552a CCP have been

recently amended to the effect that they are no longer held in the

judges' chambers (raadkamer) but in public.

It is for the public prosecution authorities to decide whether

or not a person who is suspected of a criminal offence shall be

prosecuted (Sections 167 and 242 CCP).

When a suspect seeks clarification as to whether or not criminal

proceedings will be instituted, it is possible to request the competent

court to issue a formal declaration that the case is terminated

(verklaring dat de zaak geëindigd is).

If the interests of criminal proceedings no longer require

seizure, seized goods are returned to, in principle, the person from

whom they have been seized (Section 118 CCP). Such a situation arises,

inter alia, when no criminal proceedings have been brought and no final

order for withdrawal from circulation has been issued.

If an order to return seized items cannot be executed because the

items have been lawfully alienated, destructed or otherwise disposed

of, the person to whom the goods should be returned shall receive an

amount of money equivalent to the sum these goods would reasonably have

attracted if sold (Section 119 CCP).

COMPLAINTS

1. The applicant company complains of a violation of Article 6 para.

1 of the Convention in that the Supreme Court did not examine its

grounds of cassation. This, in its view, violated its right to a fair

hearing, since the reason for the late submission of these grounds was

that the applicant company did not receive the decision of the Regional

Court before the expiry of the one month time-limit, which was an

element outside the control of the defence, and the Supreme Court did

not even look into the reasons why the time-limit had not been

respected. Moreover, the applicant company points out that there was

also inequality of arms since the Supreme Court, in its practice, does

not disregard memorials by a public prosecutor which are submitted

after the expiry of the corresponding time-limit when the delay is due

to the fact that the public prosecutor had not yet received the

documents necessary to formulate the grounds of cassation.

The applicant company points out that the reason for the late

communication of the case-file in the present case was apparently to

be found in the practice of Dutch courts to give so-called head and

tail judgments (kop-staartvonnissen), i. e. judgments which contain no

reasons, and to draft the reasons only after an appeal has been lodged.

In support of his complaint in this regard, the applicant company

refers to the judgment of the European Court of Human Rights in the

Hadjianastassiou case (Eur. Court H.R., judgment of 16 December 1992,

Series A no. 252).

2. The applicant company alleges a further violation of its right

under Article 6 para. 1 of the Convention to a fair trial in that it

was not given the opportunity of replying to the Procurator-General's

conclusions of 26 July 1993 and thus to explain the reasons for its

delay in submitting the grounds of appeal. These conclusions were not

communicated to the company until after the Supreme Court had given its

judgment and together with that judgment. The applicant company refers

in this respect to the European Court's judgment in the Borgers case

(Eur. Court H.R., judgment of 30 October 1991, Series A no. 214-B).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 March 1994 and registered

on 18 April 1994.

On 2 September 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 16

December 1994, after an extension of the time-limit fixed for that

purpose. The applicant company replied on 28 February 1995.

THE LAW

The applicant company complains under Article 6 para. 1

(Art. 6-1) of the Convention that it did not receive a fair trial in

the proceedings at issue in that, due to the judicial authorities'

failure to provide the applicant's cassation lawyer with copies of the

relevant documents, it could not submit its grounds of cassation within

the statutory time-limit whilst the failure to respect this time-limit

was subsequently held against it by the Supreme Court. It further

complains that it was not provided with an opportunity to respond to

the Procurator-General's advisory opinion.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

... hearing ... by a ... tribunal ... "

The Government submit that the proceedings at issue fall outside

the scope of Article 6 para. 1 (Art. 6-1) of the Convention. The aim

of these proceedings was not to reach a finding as regards the question

whether the applicant company was guilty of a criminal offence and thus

did not involve the determination of a "criminal charge" within the

meaning of this provision.

The Government further submit that it also did not involve a

determination of the applicant company's "civil rights and obligations"

within the meaning of the Article 6 para. 1 (Art. 6-1) of the

Convention as no final judgment concerning the fate of the seized goods

is given during the seizure proceedings. Any decision, in response to

a complaint, about whether or not to uphold the seizure is of a purely

provisional nature. On this point the Government also refer to a

Supreme Court judgment of 16 February 1993 (Nederlandse Jurisprudentie

1993, no. 647) in which it was held that proceedings pursuant to

Section 552a CCP do not involve a determination of "civil rights and

obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention as a decision on a request to return seized items does not

determine the merits of the alleged right to the items concerned.

The applicant company submits that it may be concluded from an

amendment to the procedure pursuant to Section 552a CCP, which entered

into force on 1 January 1994, that the legislator considers that such

proceedings are covered by Article 6 para. 1 (Art. 6-1) of the

Convention in that, contrary to the situation at the relevant time,

such proceedings are now public, the publicity of proceedings being one

of the requirements of this provision.

As regards the question whether the proceedings at issue fall

within the scope of Article 6 para. 1 (Art. 6-1) of the Convention, the

Commission is of the opinion that these proceedings cannot be regarded

as determining a "criminal charge" within the meaning of Article 6

para. 1 (Art. 6-1), as they did not concern the question whether or not

the applicant company was guilty of a criminal offence.

In respect of the question whether the proceedings involved the

determination of "civil rights and obligations" the Commission recalls

that for Article 6 para. 1 (Art. 6-1) of the Convention to be

applicable under its "civil" head, there must be a dispute over civil

rights and obligations and the outcome of the proceedings in question

must be directly decisive for such a right or obligation, mere tenuous

connections or remote consequences not being sufficient to bring

Article 6 para. 1 (Art. 6-1) into operation (cf. Eur. Court H.R., Fayed

judgment of 21 September 1994, Series A no. 294-B, p. 46, para. 56).

The Commission notes that the proceedings at issue did not

deprive the applicant company of its ownership of the seized deep-

frozen fruits. The outcome of the proceedings merely prevented the

applicant company from freely disposing of these goods pending the

outcome of the investigation by the prosecution authorities and,

possibly, the subsequent proceedings before the trial courts.

It follows that these proceedings were merely of a conservatory

and provisional character and concerned an interim measure taken in the

interest of the investigation regarding possible offences against the

Act on Economic Offences. These proceedings are thus to be

distinguished from proceedings which involve deprivation of property,

which is the case when confiscation or withdrawal from circulation is

at issue.

Consequently, the Commission finds that the proceedings of which

the applicant company complains did not involve a determination of

civil rights and obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (cf., mutatis mutandis, No. 12446/86, Dec.

5.5.88, D.R. 56, p. 229).

It follows that the application must be rejected as being

incompatible ratione materiae with the provisions of the Convention

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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M.F.B.V. v. THE NETHERLANDS

M.F.B.V. v. THE NETHERLANDS

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