Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18477/91

by E.G.

against Switzerland

The European Commission of Human Rights sitting in private on

1 December 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

Mrs. M.F. BUQUICCHIO, 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 28 May 1991 by

E.G. against Switzerland and registered on 9 July 1991 under file No.

18477/91;

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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1943, is a Swiss national and resident in

St. Gallen. He is a businessman by profession. Before the Commission

he is represented by Mr. L.R. Gehrer, a lawyer practising in St.

Gallen.

A. The particular circumstances of the case

On 28 August 1989 the Gossau District Office (Bezirksamt) issued

a penalty order (Strafbescheid) against the applicant for having

negligently contravened S. 38 para. 1 of the Food Act (Lebensmittel-

gesetz), and imposed a fine of SFR 2,000.

The Office found that the applicant, in his position as a manager

of the Swiss trading company B., had failed to act with the due

diligence to the effect that contaminated figs imported from Turkey had

been on sale. The Office considered that the fact that the company's

Turkish suppliers had been bound by contract to exercise such a control

could not exculpate the applicant. The company B. should have carried

out own controls.

The Office noted in particular that, already in September 1986,

the Federal Health Office (Bundesamt für Gesundheitswesen) had

informed, inter alia, the company B. about the contamination of Turkish

figs with aflatoxin (highly carcinogenic poison produced by mildew) and

about a simple method to sort out highly contaminated figs. In November

1986 the Gossau Health Office (Gesundheitsamt) had taken samples of

seven lots of Turkish figs imported by the company B. whereby only two

had an aflatoxin content below the maximum permissible. In December

1986 the Federal Health Office had again informed all companies

importing figs, amongst them the company B., about the problems

relating to aflatoxin and had prescribed maximum values regarding the

aflatoxin content of single figs. Nevertheless, the company B. had

continued to sell highly contaminated figs. Thus, in January and

February 1987 figs delivered by the company B. had been seized which

were highly contaminated. Subsequently, the company B. had failed to

comply with a request by the Gossau Health Office dated 5 March 1987

to take figs of the same lots as the ones examined in January and

February 1987 off the market.

In these and the following proceedings, the applicant was

assisted by defence counsel.

Upon the applicant's objection (Einsprache) against the penalty

order, the criminal proceedings against him were continued before the

Gossau Judicial Commission (Gerichtskommission). A hearing was held on

8 December 1989, and the Judicial Commission subsequently took further

evidence, in particular as to the standard of due diligence in

controlling the figs.

On 19 January 1990 the Gossau Judicial Commission found the

applicant guilty of having negligently contravened S. 38 para. 1 of the

Food Act in that he had negligently imported Turkish figs which were

injurious to health.

The Judicial Commission had in particular regard to the

applicant's defence that a maximum value regarding the aflatoxin

content of food in general had only been prescribed in the Directive

on Hygienic and Microbiological Standards concerning Food and

Commodities (Verordnung über die hygienisch-mikrobiologischen

Anforderungen an Lebensmittel, Gebrauchs- und Verbrauchsgegenstände)

of July 1987, i.e. subsequent to the facts charged. The Judicial

Commission considered that S. 38 of the Food Act was a general

provision and did not presuppose the existence of maximum values

prescribed by statute. In this respect, the Judicial Commission noted

that the Federal Health Office, in its letter of December 1986, had

informed, inter alia, the applicant about maximum aflatoxin contents

concerning figs and had prohibited the sale of figs with a higher

content because they were injurious to health.

On 20 August 1990 the St. Gallen Cantonal Court (Kantonsgericht)

dismissed the applicant's appeal (Berufung). The Cantonal Court noted

in particular that the Directive on Hygienic and Microbiological

Standards concerning Food and Commodities of 1981, as amended in 1983,

which had been in force at the time of the facts charged, only

prescribed a maximum value regarding the aflatoxin content for some

particular food product without referring to figs. Only the Directive

of 1987 had extended this maximum value to all kind of food. The

Cantonal Court considered that the figs had previously not been

mentioned on the ground that a contamination of figs with aflatoxin had

not yet been established. However, the Cantonal Court confirmed the

reasoning of the lower instances according to which the factual element

whether food was injurious to health, as laid down in S. 38 para. 1 of

the Food Act, was not necessarily linked to a maximum aflatoxin content

prescribed by statute or directives. Following the information on the

aflatoxin content of figs given by Swiss health authorities to, inter

alia, the company B., the applicant, as responsible manager, did not

act with the due diligence in controlling the Turkish imports of figs.

On 19 February 1991 the Federal Court (Bundesgericht) dismissed

the applicant's application for a declaration of nullity (Nichtigkeits-

beschwerde).

According to the Federal Court, an aflatoxin content exceeding

a particular maximum value was injurious to health irrespective of the

kind of food concerned. The Directive on Hygienic and Microbiological

Standards of 1981, as amended in 1983, had not mentioned figs for the

sole reason that at the time in question it had not been known that

figs could also contain aflatoxin. However, the question of whether

food or its contents was injurious to health within the meaning of

S. 38 para. 1 of the Food Act did not depend upon statutes or

directives, but could only be answered in accordance with the rules of

nature. Legal provisions on the basis of scientific findings, which

were commonly known to be wrong at the time of the facts charged or of

the judgment concerned, were irrelevant under S. 38 para. 1 of the Food

Act. The Federal Court further considered that the applicant, following

the repeated official information, could no longer proceed on the

assumption that there was no aflatoxin problem in respect of figs.

B. Relevant domestic law

According to S. 38 para. 1 of the Swiss Food Act (Lebensmittel-

gesetz), anybody who sells, or otherwise puts into circulation,food or

commodities which are injurious to health or dangerous to life and limb

shall be punished, in case of negligence, by imprisonment for a term

not to exceed six months and a fine not to exceed SFR 1,000, or only

by imprisonment or a fine.

The Federal Council (Bundesrat), in accordance with SS. 54 to 57

of the Food Act, issued a Regulation on Food (Lebensmittelverordnung).

S. 8 a of this Regulation relates to hygienic and microbiological

standards. S. 8 a para. 1 provides that food, substances to produce or

treat food as well as commodities may contain microorganisms and

metabolic produces of microorganisms only of such a quantity which is

not injurious to human health. Pursuant to S. 8 a para. 2, the Federal

Ministry of the Interior (Eidgenössisches Departement des Inneren) is

entitled to issue a directive on hygienic and microbiological standards

concerning food and commodities.

The Directive on Hygienic and Microbiological Standards

concerning Food and Commodities (Verordnung über die hygienisch-mikro-

biologischen Anforderungen an Lebensmittel, Gebrauchs- und Verbrauchs-

gegenstände), issued by the Federal Ministry of the Interior in 1981,

as amended in 1983, prescribed a maximum value regarding the aflatoxin

content for some particular food products without referring to figs.

The Directive on Hygienic and Microbiological Standards concerning Food

and Commodities of 1 July 1987 extended this maximum value regarding

the aflatoxin content to all kind of food.

COMPLAINTS

The applicant complains under Article 7 para. 1 of the Convention

about his conviction by the Swiss Courts of having contravened S. 38

para. 1 of the Swiss Food Act. He submits that he was found guilty of

having imported figs highly contaminated with aflatoxin although, at

the time of the facts charged, figs had not been mentioned in the

Directive on Hygienic and Microbiological Standards concerning Food and

Commodities, issued by the Federal Ministry of the Interior, which

prescribed a maximum aflatoxin content only for other particular food

products.

THE LAW

The applicant complains under Article 7 para. 1 (Art. 7-1) of the

Convention about his conviction by Swiss courts, under S. 38 para. 1

of the Swiss Food Act, of having put into circulation figs which were

injurious to health.

Article 7 para. 1 (Art. 7-1) 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."

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

principle that only the law can define a crime and prescribe a penalty

and that the criminal law must not be extensively construed to an

accused's detriment, for instance by analogy; it follows from this that

an offence must be clearly defined in law. This condition is satisfied

where the individual can know 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 liable

(Eur. Court H.R., Kokkinakis judgment of 25 May 1993, Series A

no. 260-A, para. 52). This implies that constituent elements of an

offence may not be essentially changed by the case-law of the domestic

courts. However, it is not objectionable that the existing elements of

a criminal offence are clarified and adapted to new circumstances which

can reasonably be brought under the original concept of the offence

(cf. No. 13079/87, Dec. 6.3.89, D.R. 60 p. 256).

The applicant was convicted by the Gossau Judicial Commission,

as confirmed by the St. Gallen Cantonal Court and the Federal Court,

of an offence under S. 38 para. 1 of the Swiss Food Act, namely of

having put into circulation figs, which were highly contaminated with

aflatoxin and, therefore, injurious to human health. The St. Gallen

Cantonal Court and the Federal Court had in particular regard to the

applicant's defence that, at the time of the facts charged, figs could

not be regarded as injurious to health within the meaning of S. 38

para. 1 of the Food Act on the ground that they were not mentioned in

the Directive on Hygienic and Microbiological Standards concerning Food

and Commodities of 1981, as amended in 1983, which prescribed a maximum

aflatoxin content for particular food products. They found that the

term "injurious to health" in S. 38 para. 1 of the Food Act had to be

interpreted independently and was not linked to legal provisions which

were based on scientific findings commonly accepted to be wrong at the

time of the facts charged or the passing of the judgment.

The Commission finds no indication that, in the present case, the

Swiss courts interpreted and applied S. 38 para. 1 of the Food Act, in

particular the notion of "injurious to health", in a manner which was

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

this respect the Commission notes that S. 38 para. 1 of the Food Act

mentions the fact that food or commodities were "injurious to health"

as one constituent element of the offence in question without referring

to any further provisions laying down standards for the application of

this notion, such as the Regulation on Food or the Directive on

Hygienic and Microbiological Standards concerning Food and Commodities.

The Commission also had regard to the findings of the Swiss

courts that the said Directive on Hygienic and Microbiological

Standards concerning Food and Commodities, in its version in force at

the time of the facts charged, contained maximum values regarding the

aflatoxin content in particular food products though it did not mention

figs. At the relevant time, the applicant, a responsible manager of the

company B. and in his position acquainted with the relevant rules, had

been repeatedly informed by Swiss health authorities on the general

problem of an aflatoxin contamination of figs, and about the results

of hygienic examinations which had established the contamination of

some lots of Turkish figs imported by the company B., of which he was

a responsible manager. The Commission, therefore, considers that the

applicant could reasonably foresee the risk of punishment under S. 38

para. 1 of the Food Act for putting highly contaminated figs into

circulation.

Consequently, the Commission finds no appearance of a violation

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

application is 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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E.G. v. SWITZERLAND

E.G. v. SWITZERLAND

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