SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42323/98

by Hendrik Mathijs SNIEKERS

against the Netherlands

The European Court of Human Rights (Second Section), sitting on 23 September 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr M. Ugrekhelidze, judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 10 June 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court’s partial decision of 22 January 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS [AVS1]

The applicant, Mr Hendrik Mathijs Sniekers, is a Netherlands national, who was born in 1955 and lives in The Hague. He is represented before the Court by Mr R.J. Baumgardt, a lawyer practising in Spijkenisse.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In criminal proceedings against the applicant he was charged with the offences of trafficking in persons ( mensenhandel ), committing indecent acts with four named persons who were under the age of 16 ( ontucht ) and supplying cocaine to Messrs A, B and C (all of whom were under age) as well as to Ms D, who was born in 1952. The applicant admitted having committed indecent acts with the minors in question and having supplied cocaine to Ms D. He denied having supplied cocaine to youngsters.

On 6 October 1995 the Regional Court ( arrondissementsrechtbank ) of Rotterdam convicted the applicant of all the offences of which he stood accused and sentenced him to five years’ imprisonment, less the time spent in pre-trial detention. The applicant filed an appeal with the Court of Appeal ( gerechtshof ) of The Hague.

At a hearing on 4 February 1997 before the Court of Appeal, the chairperson read out a summary of the documents contained in the preliminary investigation file. These included a statement by a Mr G to the effect that he had seen the applicant supplying cocaine to the boys in his club.

On 18 February 1997 the Court of Appeal quashed the judgment of the Regional Court. It convicted the applicant of trafficking in persons, of two offences involving the commission of indecent acts with minors under the age of 16, and of supplying Ms D with cocaine. The Court of Appeal did not consider it proved that the applicant had supplied cocaine to Messrs A, B and C, and he was therefore acquitted of those charges. The applicant was sentenced to a term of imprisonment of five years and six months, less the time spent in pre-trial detention. In its reasoning relating to the determination of the sentence, the Court of Appeal held, inter alia , as follows:

“The defendant ... has on a large scale, and in a revolting manner, taken advantage of the vulnerable position of these minors who were generally from a disadvantaged social background, and he has systematically and commercially abused and exploited them for substantial financial gain. The defendant further abused these young boys in order to indulge his own sexual desires. Through these shameful acts the defendant demonstrated his complete lack of respect for these boys. He has thus systematically, and in an offensive and extremely reprehensible manner, violated the physical and psychological integrity of these young children and it can by no means be excluded that they will suffer the detrimental effects for a long time to come, possibly for the rest of their lives. They have been – or so it may be feared – seriously damaged both in their sexual and their social development. The defendant has also supplied cocaine to a vulnerable youngster.”

The applicant lodged an appeal on points of law ( beroep in cassatie ) with the Supreme Court ( Hoge Raad ), arguing that the Court of Appeal had partially based the sentence on his having supplied cocaine to a vulnerable youngster despite the fact that he had been acquitted of that charge and that he had always vehemently denied having supplied cocaine to youngsters.

In his advisory opinion, the advocate general at the Supreme Court opined that it seemed likely that the Court of Appeal had not realised that Ms D was not a minor. However, this mistake did not have to lead to the quashing of the judgment of the Court of Appeal, given that at the hearing before that court on 4 February 1997 documents from the preliminary investigation file were read out to the applicant and that it appeared from those documents that the applicant had supplied cocaine to a vulnerable youngster. The Court of Appeal had been entitled to take this into account in the determination of the sentence.

On 7 April 1998 the Supreme Court rejected the applicant’s appeal on points of law. It considered that the Court of Appeal had not based its judicial finding of fact ( bewezenverklaring ) on the supply of cocaine to a youngster but had merely seen this element as a circumstance to be taken into account in the determination of the sentence. The Court of Appeal had been allowed to proceed in this manner in view of the fact that at the Court of Appeal’s hearing on 4 February 1997 the chairperson had summarised, inter alia , the statement made by Mr G to the police, to the effect that the applicant had supplied cocaine to the boys working in his club.

B. Relevant domestic law and practice

Article 359 of the Code of Criminal Procedure ( Wetboek van Strafvordering ), in so far as relevant, provides as follows:

“1. The judgment shall contain the charges and the substance of the evidence in so far as it serves to prove the charges.   ...

3. The decision that a defendant committed the offence in question must be supported by facts or circumstances that are referred to as such in the judgment.   ...

5. The judgment shall specify the reasons that have determined the sentence or non-punitive order.

6. In imposing a sentence or non-punitive order involving deprivation of liberty, the judgment shall specify the reasons that led to the choice of penalty or order. It shall also describe, as far as possible, the circumstances that were taken into account in determining the length of the sentence.   ...”

In determining the type and severity of the sentence to be imposed in cases where defendants are found guilty, Netherlands courts have a considerable degree of latitude. The Criminal Code ( Wetboek van Strafrecht ) lays down a general minimum sentence (of one day as far as imprisonment is concerned, Article 10 § 2) and, depending on the offence in question, a maximum sentence. Within these limits the court is free to decide what sentence it deems appropriate in the light of the defendant’s character and the circumstances of the case.

According to Article 57 of the Criminal Code, where two or more separate, indictable offences are committed, the maximum penalty which may be imposed is the combined total of the maximum penalties for each offence. However, in so far as a term of imprisonment is concerned, the penalty may not exceed the most severe maximum penalty by more than one third. In the present case, three of the four offences of which the applicant was convicted carried a maximum prison sentence of eight years, the fourth offence carrying a maximum prison sentence of six years. The maximum prison sentence that could have been imposed on the applicant was therefore ten years and eight months.

Intentionally supplying cocaine to a person – regardless of that person’s age – is an offence pursuant to Article 10 para. 3 in conjunction with Article 2 para. 1 of the Opium Act ( Opiumwet ), carrying a maximum sentence of eight years. The fact that the person being supplied is a minor does not constitute an aggravating circumstance. According to the Guidelines on the Investigation and Criminal-Proceedings Policy Relating to Offences under the Opium Act ( Richtlijnen opsporings- en strafvorderingsbeleid strafbare feiten Opiumwet ), issued by the Board of Procurators General ( College van procureurs-generaal ) of the public prosecution service and published in the Official Gazette ( Staatscourant ; 1996, nr. 187), the public prosecutor should call for a more severe penalty to be imposed by the trial court in cases where sales have been made to members of vulnerable groups, such as minors, than in cases where such a sale has been made to adults.

COMPLAINT

The applicant complained under Article 6 § 2 of the Convention that the reasoning adopted by the Court of Appeal relating to the determination of the sentence reflected the opinion that he was guilty of an offence of which he had been acquitted.

THE LAW

The applicant complained of an infringement of the presumption of innocence as laid down in Article 6 § 2 of the Convention:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Government submitted that the Court of Appeal’s observation that the applicant had supplied cocaine to a youngster was factually inaccurate with respect to the age of the person supplied. However, it was irrelevant to the punishability of the act given that supplying cocaine to a minor is the same offence as supplying it to anyone and given that the age of the person supplied cannot be counted as an aggravating circumstance. The applicant had been found guilty of supplying cocaine to Ms D and he had been sentenced for this offence, and not for supplying it to a minor. There was thus no judicial finding that the applicant was guilty of an offence of which he had been acquitted. In particular, there was no judicial decision regarding a charge against which the defendant had not had the opportunity to defend himself: he had been charged with supplying cocaine and he had entered a defence to that charge.

The fact that the Court of Appeal imposed a heavier sentence than the Regional Court could not, in the Government’s view, be linked to the supply of cocaine but was due to the Court of Appeal attaching greater weight to the sexual offences.

Finally, the Government argued that it was clear from the ruling of the Supreme Court that only the fact that the applicant had supplied cocaine to –the adult – Ms A had been found proved. Even if the Court of Appeal’s judgment gave the impression that the applicant had been found guilty of supplying cocaine to a youngster, this impression had therefore been corrected by the Supreme Court.

The applicant acknowledged that the Opium Act itself does not lay down a more severe penalty for supplying cocaine to a minor than for supplying it to an adult. However, he asserted that the age of the person supplied may nevertheless play a role in the determination of the sentence since, according to the Guidelines on the Investigation and Criminal-Proceedings Policy Relating to Offences under the Opium Act, the public prosecutor will call for a more severe sentence to be imposed by the trial court where cocaine has been sold to a minor.

The applicant further submitted that, in its judgment, the Court of Appeal did not indicate to what extent the sentence was determined by each of the circumstances it took into account. Given that the Court of Appeal explicitly mentioned that the applicant had supplied cocaine to a vulnerable youngster, the only conclusion that could be drawn was that this circumstance was relevant in the eyes of the Court of Appeal, and that it thus had the effect of increasing the severity of the penalty. Therefore, the judgment contained a value judgment about the applicant’s guilt, despite the fact that he had been acquitted in respect of this circumstance.

The applicant disputed that the impression that he had been found guilty of supplying cocaine to a youngster was corrected by the Supreme Court, since that court’s judgment stated that it was clear from a witness statement that the applicant had supplied cocaine to young persons.

The Court reiterates that according to its established case-law, the general aim of the presumption of innocence is to protect the accused against any judicial decision or other statements by State officials amounting to an assessment of the applicant’s guilt without him having previously been proved guilty according to law (see, amongst other authorities, Allenet de Ribemont v. France , judgment of 10 February 1995, Series A no. 308, p. 16, § 35). Once an accused has properly been proved guilty of a particular criminal offence, Article 6 § 2 can have no application in relation to allegations made about an accused’s character and conduct as part of the sentencing process, unless they are of such a nature and degree as to amount to the bringing of a new charge within the autonomous meaning of the Convention (see Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22, pp. 37-38, § 90, and Phillips v. the United Kingdom , no. 41087/98, § 35, ECHR 2001-VII).

The Court observes that the applicant does not dispute that he was lawfully convicted of the offences of trafficking in persons, committing indecent acts with minors under the age of 16 and of supplying Ms D with cocaine. There can thus be no doubt that the Court of Appeal was entitled to determine a sentence to be imposed on him. Furthermore, it is clear that the sentence of five and a half years’ imprisonment fell within the sentence range on the charges of which the applicant was convicted.

It is the applicant’s contention that the reasoning provided by the Court of Appeal for the sentence it imposed expressed the opinion that he was guilty of an offence of which he had been acquitted. The Court notes first of all that it is clear from the judgment of the Court of Appeal that the applicant was acquitted of the charge of supplying cocaine to Messrs A, B and C. The Supreme Court confirmed this as it held in its judgment that no judicial finding of fact had been made to the effect that the applicant had supplied cocaine to a youngster.

The Court further observes that according to the Government, the Court of Appeal made an error by referring to Ms D as a youngster in its reasoning relating to the determination of the sentence. In his advisory opinion, the advocate general to the Supreme Court also expressed the view that the Court of Appeal had overlooked the fact that Ms D was not a youngster. In this context it is reiterated that the Court cannot examine alleged errors of fact or law committed by national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 45).

In the present case, the Court considers that the factors leading the Court of Appeal to impose the particular sentence, which are set out in that court’s judgment, must be read as a whole and in their proper context. It is to be observed that the Court of Appeal focused on the sexual offences of which the applicant was convicted, and in particular on the effects of these offences on the victims and on the way in which the applicant had abused and exploited the boys in question. One short sentence only was devoted to the applicant having supplied cocaine to a vulnerable youngster, which served mainly to illustrate further the manner in which the applicant had treated his victims.

In these circumstances, the Court cannot find that a sentence was imposed on the applicant in respect of an offence of which he had been acquitted. Neither is the Court persuaded that the impugned observation in the Court of Appeal’s judgment was of such a nature or degree as to amount to the bringing of a new charge.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

T.L. Early J.-P. Costa                           Deputy Registrar President

[AVS1] Update the text as necessary. Add any further introductory information (e.g. representatives of parties at a hearing, third party). Where the parties’ description of the facts differ, their respective versions should be set out separately.