Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21981/93

by K.D.B.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 23 March 1993 by

K.D.B. against the Netherlands and registered on 28 May 1993 under file

No. 21981/93;

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

21 July 1995 and the observations in reply submitted by the

applicant on 24 August 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1959, and resides in

Snelrewaard, the Netherlands. Before the Commission he is represented

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

The facts of the present case, as submitted by the parties, may

be summarised as follows.

A. The particular circumstances of the case

The applicant runs a farm where he keeps cattle for slaughter.

On 15 November 1991 his farm was inspected by the General Inspection

Department (Algemene Inspectiedienst) of the Ministry of Agriculture,

Nature Management and Fisheries (Ministerie van Landbouw, Natuurbeheer

en Visserij). The General Inspection Department singled out twelve cows

to which the applicant was suspected of having administered a forbidden

substance, i.e. clenbuterol.

On the same day the public prosecutor (officier van justitie)

ordered an interim measure (voorlopige maatregel) pursuant to Section

28 of the Code on Economic Offences (Wet op de Economische Delicten),

in that the applicant should refrain from removing the twelve cows

without the public prosecutor's permission. The applicant furthermore

had to refrain from obstructing the identification of his cattle.

After tests had proved that clenbuterol had been administered to

nine of the twelve cows, the General Inspection Department seized these

nine cows on 3 December 1991 pursuant to Section 18 of the Code on

Economic Offences. The statement of receipt of the seized goods (bewijs

van ontvangst van in beslag genomen voorwerpen) mentioned that an

objection to the seizure could be filed with the Regional Court

(Arrondissementsrechtbank) of Utrecht pursuant to Section 552a of the

Code of Criminal Procedure (Wetboek van Strafvordering). It appears

that the three other cows were returned to the applicant.

On 5 December 1991 the public prosecutor demanded authorisation

from the Regional Court of Utrecht for the destruction of the seized

cows, since their care was very costly and their meat was, in any case,

no longer fit for human consumption.

On 9 December 1991 the applicant requested the Regional Court

pursuant to Section 28 para. 3 of the Code on Economic Offences to lift

the interim measure of 15 November 1991. At a hearing in chambers

(raadkamer) of the Regional Court on 10 December 1991 the public

prosecutor stated that the interim measure would be withdrawn.

On 21 January 1992 the applicant requested the Regional Court to

order the General Inspection Department to test the cows which had

fallen within the ambit of the interim measure once more on the

presence of forbidden substances and to lift the interim measure if the

tests proved negative. The applicant was of the opinion that the way

in which the samples had been taken did not comply with EEC Directive

86/469/EEC and that therefore it was impossible for the Regional Court

to know whether the residue of the forbidden substance, which had been

found, had in fact exceeded the maximum permissible level.

Following a hearing in chambers on 21 January 1992 the Regional

Court decided on 4 February 1992 that the applicant's request of

9 December 1991 was inadmissible since the public prosecutor had

announced on 10 December 1991 that the interim measure would be

withdrawn. It therefore also rejected the applicant's request of

21 January 1992.

The Regional Court also decided on 4 February 1992 to authorise

the public prosecutor, in accordance with his request, to destroy the

nine cows to which clenbuterol had been administered.

On 13 February 1992 the applicant lodged an appeal in cassation

with the Supreme Court (Hoge Raad) against the Regional Court's

decision of 4 February 1992. The applicant did not submit reasons for

the appeal in cassation in writing, as he intended to make his

objections against the Regional Court's decisions known at the hearing

in the cassation proceedings.

In the proceedings before the Supreme Court, the Advocate General

submitted as his opinion that the appeal in cassation should be

rejected since he had found no grounds for cassation ex proprio motu

and no memorial of cassation had been submitted. The Advocate General's

submissions also contained a copy of a preliminary ruling given by the

Court of Justice of the European Communities at the request of the

Breda Regional Court concerning the interpretation of EEC Directive

86/469/EEC. The applicant's counsel had referred to this request in the

proceedings before the Regional Court.

Neither the applicant nor his counsel was informed about the

submissions of the Advocate General.

On 1 March 1993 the applicant was notified by the Department of

the Procurator General with the Supreme Court (Parket van de Procureur-

Generaal bij de Hoge Raad) that the Supreme Court had rejected his

appeal in cassation in a decision of 19 January 1993. The decision had

been given after an examination in chambers. According to the applicant

he had not been notified of the date of the hearing.

Following a hearing on 7 October 1993, the Regional Court of

Utrecht convicted the applicant in criminal proceedings on

21 October 1993 of possession of cattle to which clenbuterol had been

administered and of possession of clenbuterol itself. The Regional

Court also ordered the withdrawal from circulation of the seized cows.

The applicant lodged an appeal (hoger beroep) with the Court of

Appeal (Gerechtshof) of Amsterdam against the judgment of

7 October 1993. On 4 July 1995 the Court of Appeal also convicted the

applicant and ordered the withdrawal from circulation of the cows. The

applicant has lodged an appeal in cassation with the Supreme Court

against this judgment. These cassation proceedings are currently still

pending.

B. Relevant domestic law

The possession of cattle to which certain chemicals have been

administered is an offence pursuant to Section 2 of the Decree on

chemicals with sympathico mimetic effects (Verordening stoffen met

sympathico mimetische werking).

Section 28 para. 1 of the Code on Economic Offences provides for

interim measures to be taken by the public prosecutor in cases where

serious objections (ernstige bezwaren) against the accused have been

raised and where the interests protected by the allegedly violated

provision require immediate action.

An interim measure may consist of an order to refrain from

certain acts (Section 28 para. 1 (a)) and of an order to ensure that

certain specified goods, which are liable for seizure, are stored and

kept at a specified place (Section 28 para. 1 (b)).

The accused may request the court dealing with the prosecution

to lift an interim measure pursuant to Section 28 para. 3.

Pursuant to Section 18 of the Code on Economic Offences goods may

be seized. Unless expressly ruled out in the Code on Economic Offences,

the provisions of the Code of Criminal Procedure apply to the criminal

investigation of economic offences (Section 25 of the Code on Economic

Offences).

Interested parties may file a complaint with a court against a

seizure of goods (Section 552a Code of Criminal Procedure).

Seized goods unsuitable for long-term storage can be destroyed

if a court grants the prosecution authorisation thereto (Section 117

para. 3 Code of Criminal Procedure). If the return of seized goods is

impossible because of their destruction, an amount of money, equal to

the price obtained for the goods if sold, is paid out (Section 119

para. 2 Code of Criminal Procedure).

Sections 445 - 448 of the Code of Criminal Procedure deal, inter

alia, with the proceedings before the Supreme Court in cases where an

appeal in cassation has been lodged against a decision (beschikking).

Contrary to the provisions concerning an appeal in cassation against

a judgment (vonnis/arrest), Sections 445 - 448 do not stipulate that

the appellant is to be informed of the date on which the Supreme Court

will examine the appeal in cassation.

At the time the proceedings at issue were taking place, it was

possible for an appellant to submit his grounds for appeal in cassation

as long as the Supreme Court had not decided on the appeal (Section 447

Code of Criminal Procedure). At present, the memorial of cassation must

be submitted within a month of cassation proceedings being instituted.

COMPLAINT

The applicant alleges that in the cassation proceedings his civil

rights were determined in a manner contrary to Article 6 para. 1 of the

Convention as he was not informed of the submissions of the Advocate

General to the Supreme Court and was therefore not able to reply to

these submissions. He further complains that he was not informed of the

date the Supreme Court would examine the appeal in cassation and that

the Supreme Court gave its decision without a public hearing.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 March 1993 and registered

on 28 May 1993.

On 6 April 1995 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 21 July

1995, after an extension of the time-limit fixed for that purpose. The

applicant replied on 24 August 1995.

THE LAW

The applicant complains that the cassation proceedings did not

comply with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention.

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

relevant, provides as follows:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law. Judgment

shall be pronounced publicly ..."

1. The Government agree with the applicant that the proceedings at

issue concerned the determination of his civil rights within the

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

The Commission, noting that the proceedings concerned the

destruction of the applicant's property, also finds that Article 6

para. 1 (Art. 6-1) of the Convention was applicable (cf. Eur. Court

H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no.

52, para. 79).

2. The Government submit, in the first place, that the applicant

cannot be considered a victim of a violation of the Convention within

the meaning of Article 25 (Art. 25). In their opinion the question of

whether the cows were rightfully seized will be determined in the

criminal proceedings against the applicant which are still pending.

Should the courts in these criminal proceedings decide that the cows

are to be returned, the applicant will receive compensation equal to

the amount which might reasonably be expected to have been obtained if

the cows had been sold. The applicant has thus suffered no damage in

the proceedings to which his application relates. Furthermore, if the

courts conclude that an offence has been committed and the cows should

be withdrawn from circulation, the applicant has not suffered any extra

damage through the alleged violation of the Convention.

The Commission notes that the applicant did not file a complaint

pursuant to Section 552a of the Code of Criminal Procedure but that he

lodged an appeal in cassation against the Regional Court's decision to

authorise the public prosecutor to have the cows slaughtered.

Accordingly, what was at stake in the proceedings at issue was not the

lawfulness of the seizure but the destruction of the cows, which the

applicant attempted to prevent. The Commission considers that in this

respect the applicant may claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention.

3. As regards the substance of the complaints, the Government argue

that it was not possible to transmit the submissions of the Advocate

General to the applicant's counsel or to inform the applicant of the

date on which the Supreme Court would deal with his appeal in cassation

since the applicant's counsel had failed to notify the Supreme Court

that he was acting on the applicant's behalf. Contrary to existing

practice with which the applicant's counsel should have been familiar,

he had also not requested the forwarding of the Advocate General's

submissions nor had he made a request for an oral hearing. Such

requests are always granted. In the opinion of the Government, the

submissions of the Advocate General did not in any event contain any

arguments of substance and the applicant's defence rights were

therefore not harmed.

The applicant, basing himself on a provision of the Code of

Criminal Procedure which concerns an appeal in cassation against a

judgment, takes the view that he should have been informed of the date

on which the Supreme Court would examine his appeal. If the applicant

had been informed of this date, counsel would have notified the Supreme

Court in good time that he was acting on behalf of the applicant in

order to submit a memorial in cassation and/or to request an oral

hearing.

Furthermore, if the applicant had received the Advocate General's

submissions, counsel would have indicated to the Supreme Court that

there were grounds for cassation ex proprio motu owing to the fact that

the proceedings before and the decision of the Utrecht Regional Court

did not satisfy the provisions contained in EEC Directive 86/469/EEC.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The Commission

concludes, therefore, that the application is not manifestly ill-

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

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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K.D.B. v. THE NETHERLANDS

K.D.B. v. THE NETHERLANDS

LEXI