Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14216/88

by R.R. and G.R.

against the Netherlands

The European Commission of Human Rights sitting in private

on 7 March 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 29 February

1988 by R.R. and G.R. against the Netherlands and registered on 14

September 1988 under file No. 14216/88;

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 applicants are both Dutch nationals born in respectively

1942 and 1912. They jointly own and manage a private company with

limited liability called "ADAMEX B.V." - hereinafter called ADAMEX -

and live in Laren, the Netherlands. Before the Commission they are

represented by Mr. J. Groen, a lawyer practising in The Hague.

The facts as submitted by the applicants may be summarised as

follows:

In the summer of 1981, the late husband of the second

applicant, the owner-manager of ADAMEX, bought a stock of shirts from

Mr. T. in Zurich, Switzerland.

The book value, as stated on the invoice of these shirts

(approximately 99,000), was NLG. 543,907. The shirts represented a

market value to ADAMEX of NLG 1,400,000.

On 30 September 1981, the shirts, packaged in 1673 boxes,

were presented for importation to the Dutch customs. They were

accompanied, inter alia, by three statements of origin, issued by the

Zurich Chamber of Commerce, specifying Japan as the country of origin,

and by an import licence for 99,000 shirts to be imported from

Switzerland and originating in Japan.

On 2 October 1981, the shirts were seized and the authorities

initiated an investigation into their origin, apparently on the

suspicion that the shirts were too inexpensive for them to have been

made in Japan.

By letter of 13 January 1982, the competent division of the

Commission of the European Communities in Brussels confirmed that the

shirts had not originated in Japan. Subsequent investigation revealed

that the shirts had been manufactured in South Korea. Textiles from

that country must be accompanied by a South Korean export licence

which must conform to an EEC import quota.

On 2 February 1983, the Public Prosecutor requested that the

shirts be withdrawn from circulation (onttrokken aan het verkeer).

Criminal proceedings had been instituted against ADAMEX on 12 October

1981. However, the owner died on 19 May 1983. On 9 November 1984 the

Public Prosecutor informed the applicants' lawyer that he had dropped

the charges (sepot) against ADAMEX.

By decision of 22 June 1983, the Regional Court

(Arrondissementsrechtbank) of Amsterdam, after having adjourned the

case on 19 May 1983 upon request of the applicants, ordered the

withdrawal from circulation of the shirts, but this order was quashed

by the Supreme Court (Hoge Raad) on 10 January 1984.

On 26 March 1984, the Public Prosecutor made a renewed request

for withdrawal from circulation of the shirts. This request was dealt

with in chambers by the Regional Court of Amsterdam on 5 April 1984,

when the case was adjourned indefinitely. The record of this hearing

does not indicate why the case was adjourned.

The case was again heard in chambers on 9 November 1984 and

4 January 1985. On 19 February 1985 the Court ordered the withdrawal

from circulation of the shirts. The Court based this decision on the

consideration that the shirts were illegally imported with the

ostensible purpose of circumventing the import quota by means of false

declarations of origin, and that, if they were returned to ADAMEX,

they would very likely end up on the EEC market after all.

Apparently, ADAMEX had repeatedly requested the return of the shirts,

so that it could recoup some of its investment by selling the shirts

to a non-EEC country.

The Court considered that ADAMEX was not entitled to any

compensation, because ADAMEX ought to have known that the shirts were

undervalued for Japanese shirts of their type and fashion.

Furthermore, ADAMEX had failed to take action against Mr. T. of Zurich

when it was discovered that the declarations of origin were false,

while ADAMEX did make provision for the loss in its accounts in 1981

of NLG. 621,150. Since then, ADAMEX had nevertheless apparently

been profitable, and it had to be considered that the shirts no longer

had the same value as they did in 1981 because they had gone out of

fashion. Therefore, the Court considered that the applicants did not

suffer disproportionately by the confiscation.

Before the Regional Court, the applicants had complained that

the procedure in chambers violated Article 6 para. 1 of the Convention

because the hearings were not public and the decision was not

pronounced publicly.

The applicants appealed on 22 February 1985 to the Supreme

Court, inter alia, on the ground that the procedure leading to the

withdrawal from circulation of their property had exceeded a

reasonable time, contrary to Article 6 para. 1 of the Convention.

They did not raise the non-public character of the proceedings.

By decision of 8 September 1987 the Supreme Court rejected the

appeal. It considered, inter alia, that, according to the record of

the hearing, the applicants had not objected to the indefinite

adjournment of the case on 5 April 1984, nor had the applicants at

any time requested a speedier treatment of the case or claimed that

the procedure had exceeded a reasonable time.

RELEVANT DOMESTIC LAW AND PRACTICE

The withdrawal from circulation is provided for in Article 36

(b) of the Penal Code, which reads, insofar as relevant, as follows :

"Art. 36b. 1. Onttrekking aan het verkeer van in beslag

genomen voorwerpen kan worden uitgesproken :

...

4°. bij een afzonderlijke rechterlijke beschikking op

vordering van het openbaar ministerie."

"Art. 36b. 1. Withdrawal from circulation of seized

objects can be pronounced :

...

4°. by a separate judicial order upon request of the

Public Prosecutor."

This Article applies to seized goods which in this way can be

withdrawn from circulation. It implies that the legal ownership of

such goods passes to the State which can then dispose of them. This

can result in the destruction of the goods, for instance.

COMPLAINTS

The applicants complain that, although neither they nor their

company were convicted of a criminal offence, the punitive measure of

withdrawal from circulation of property was nevertheless applied

against them in a procedure which was not held in public and leading

to a decision which was not pronounced publicly.

Furthermore, the applicants complain that the procedure on the

withdrawal from circulation, which began on 2 October 1981, when their

property was seized, and ended on 8 September 1987 with the decision

of the Supreme Court, exceeded a reasonable time. The withdrawn

property represented a considerable commercial value to the

applicants' company and the withdrawal from circulation brought

their company to the brink of bankruptcy.

The applicants invoke Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 February 1988 and

registered on 14 September 1988.

On 4 September 1989 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former

version) to submit observations on its admissibility and merits, in

respect of the complaints under Article 6 para. 1 of the Convention

relating to confiscation proceedings.

The respondent Government's observations were submitted on

16 November 1989 and the reply thereto by the applicants on 1 March

1990.THE LAW

1. The applicants complain under Article 6 (Art. 6) of the

Convention that, although neither they nor their company were

convicted of a criminal offence, the measure of withdrawal from

circulation of their property was applied in a procedure which was not

held in public and ending in a decision which was not pronounced

publicly.

Article 6 (Art. 6), 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 within a reasonable time by an independent and

impartial tribunal established by law. Judgment shall

be pronounced publicly [...]".

The Government submit that withdrawing goods from circulation

is a non-punitive public order measure of a precautionary nature.

According to the Government, it is not a substitute for punishment,

nor does it imply any establishment of guilt. The Government are of

the opinion that the applicants' complaint should be declared

inadmissible, as the applicants had not raised before the Supreme

Court their complaint regarding the non-public character of the

proceedings and had not, therefore, exhausted the national remedies

available to them. The Government recognise, however, that the

proceedings as such do not meet the requirements as set out in Article

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

The Commission has first examined whether Article 6 para. 1

(Art. 6-1) of the Convention is applicable to the proceedings at

issue. The Commission notes that the Supreme Court, in its decision

of 8 September 1987, found that Article 6 para. 1 (Art. 6-1) of the

Convention applies to proceedings concerning withdrawal of goods from

circulation as it immediately determines the applicants' right as

owners to dispose of the goods. The Commission shares this opinion.

It follows that the procedure in which the applicants were

involved concerned the determination of their civil rights and

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

Convention. This provision is therefore applicable to the proceedings

in the present case.

In order to have exhausted domestic remedies, an applicant

must have raised, at least in substance, before the national

authorities the complaint brought before the Commission (cf. No.

10027/82, Dec. 5.12.84, D.R. 40 p. 100). The Commission notes that

in their appeal to the Supreme Court the applicants did not complain

that the proceedings before the Regional Court had not been held in

public and that the decision to withdraw their goods from circulation

had not been pronounced publicly. The applicants have, therefore, not

exhausted the remedies available to them under Dutch law.

Consequently, the complaint on the non-public character of these

proceedings must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

2. The applicants further complain under Article 6 para. 1

(Art. 6-1) of the Convention of the length of the proceedings in which

they were involved.

The applicants contend that the total length of the proceedings

exceeded a reasonable time within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, as the proceedings started on 2 October

1981 with the seizure of the applicants' goods and ended on 8

September 1987 with the Supreme Court's decision. The applicants also

state that their counsel had indicated the applicants' company's right

to and interest in a speedy and definite decision already in his

pleadings of 9 June 1983.

The Government submit that the Public Prosecutor had applied

for the withdrawal from circulation pending the criminal investigation

on 2 February 1983 whereas the Court had decided the case on 22 June

1983. The Supreme Court had decided on the appeal on 10 January 1984.

In the Government's opinion this period could not be deemed

unreasonably long.

The Government submit that on 26 March 1984, the Public

Prosecutor again applied for an order to withdraw the goods from

circulation. The application was dealt with by the Amsterdam Regional

Court for the first time on 5 April 1984 and was decided on 19

February 1985. On 22 February 1985 the applicants' company appealed

to the Supreme Court. On 8 September 1987 the Supreme Court dismissed

the appeal. The Government are of the opinion that the decisions of

the Regional Court and the Supreme Court on the Public Prosecutor's

second application were given within a reasonable time.

The Government furthermore submit that neither at the court

hearings nor in the intervening period did the applicants or their

counsel lodge an appeal concerning the duration of the proceedings or

request that the case be heard promptly. They therefore consider that

this part of the application should be rejected for failure to exhaust

domestic remedies.

The Commission, having regard to the parties' submissions

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

length of the proceedings, first notes that the length of the

proceedings was raised before the Supreme Court in the applicants'

appeal of 22 February 1985. In these circumstances, the complaint

cannot be rejected for failure to exhaust domestic remedies. The

Commission further considers that the complaint relating to this issue

raises complex issues of fact and law which can only be resolved by an

examination of the merits. This part of the application, therefore,

cannot be declared manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds

for inadmissibility have been established.

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the applicants' complaint under Article 6 para. 1

(Art. 6-1) of the Convention as to the length of the

proceedings, and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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R.R. ; G.R. v. THE NETHERLANDS

R.R. ; G.R. v. THE NETHERLANDS

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