FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37826/97

by Karel DE BRUYN

against the Netherlands

The European Court of Human Rights ( First Section) sitting on 2 February 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall,

Mr L. Ferrari Bravo,

Mr C. Bîrsan,

Mr B. Zupančič,

Mrs W. Thomassen,

Mr T. Pantiru, Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 August 1977 by Karel de Bruyn against the Netherlands and registered on 18 September 1997 under file no. 37826/97;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1959, and resides in Oudewater. He is represented by Mr L.J.L. Heukels, a lawyer practising in Haarlem, the Netherlands.

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

a. Particular circumstances of the present case

On 15 November 1991, in the context of an inspection by the General Inspection Service ( Algemene Inspectie Dienst ) of the Ministry of Agriculture, Nature Conservancy and Fisheries ( Ministerie van Landbouw, Natuurbeheer en Visserij ), urine samples were taken from cattle on the applicant’s farm and two plastic bottles containing a suspect liquid found on the farm were seized. Subsequent tests of the urine samples indicated that nine cows had been administered the illegal substance clenbuterol. The two plastic bottles seized were found to contain clenbuterol.

The applicant was summoned to appear before the single-judge chamber for economic offences ( economische politierechter ) of the Regional Court ( Arrondissementsrechtbank ) of Utrecht to answer charges of possession of beef cattle to which clenbuterol had been administered, of illegal possession of clenbuterol and of illegally administering that substance to animals. A hearing was held on 7 October 1993 in the course of which the applicant gave evidence.

By judgment of 21 October 1993, the applicant was convicted of the first two charges and sentenced to payment of a fine of NLG. 600. The nine cows and the two plastic bottles were declared forfeit. The applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of Amsterdam.

On 23 June 1995, a hearing was held before the Court of Appeal. According to the formal record ( proces-verbaal ) of this hearing, the applicant’s lawyer submitted his memorandum of oral pleading ( pleitnota ) to the Court of Appeal and this document was added to the case-file.

In its judgment of 4 July 1995, the Court of Appeal quashed the judgment of 21 October 1993, convicted the applicant of the first two charges and sentenced him to payment of a fine of NLG. 4,500 in respect of the first charge and a fine of NLG. 500 in respect of the second charge. The nine cows and the two plastic bottles were declared forfeit.

Insofar as the applicant complained that the technical manner in which the samples at issue had been taken, packed, sealed, transported and tested was contrary to his rights under Article 8 of the Convention in that this provision is aimed at protecting individuals against arbitrary acts by public authorities, the Court of Appeal held that no concrete doubts had arisen as regards the taking, packing, sealing, transporting and the testing of these samples. The Court of Appeal added that it did failed to see the connection between Article 8 of the Convention and the manner in which these samples were obtained and subsequently handled.

It considered that the mere speculations expressed by the applicant’s lawyer at the hearing on appeal were insufficient to invoke the unreliability of the taking and subsequent handling of the samples at issue. It accepted the method used by the General Inspection Service as containing sufficient guarantees.

The Court of Appeal further rejected arguments raised by the applicant in relation to the findings of the Court of Justice of the European Communities in its judgment in case No. C - 143/91 and the EEC Council Directive 86/469 of 16 September 1986. It held that these arguments did not alter the fact that the first charge against the applicant constituted a punishable offence.

The Court of Appeal further rejected a request by the defence to seek a preliminary ruling from the Court of Justice of the European Communities as regards the alleged incompatibility of the Dutch rules in respect of growth inducing hormones with the EEC Council Directive 86/469 of 16 September 1986. It held that no necessity to do so had appeared, as Member States of the European Communities are at liberty to issue stricter rules than those set by the Directive concerned.

The applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ) and, by letter of 26 February 1996, his lawyer submitted the applicant’s complaints in cassation to the Supreme Court. On 11 June 1996 a hearing was held before the Supreme Court in the course of which it considered the applicant’s complaints in cassation and the advisory opinion of the Procurator-General ( Procureur-Generaal ) to the Supreme Court.

By letter of 18 June 1996 to the Supreme Court, the applicant’s lawyer reacted to the advisory opinion of the Procurator-General.

At some unspecified point in time, the Procurator-General submitted an additional advisory opinion to the Supreme Court, to which the applicant’ lawyer reacted in his letter of 13 March 1997 to the Supreme Court. In this letter, the applicant’s lawyer further requested to be informed of the hearing date in order to submit further oral explanations. He did not substantiate this request.

In its judgment of 6 May 1997, the Supreme Court stated that it had noted the contents of the applicant’s letters of 18 June 1996 and 13 March 1997, which had been submitted after the hearing on which the Procurator-General had submitted his advisory opinion and additional advisory opinion respectively.

The Supreme Court rejected the applicant’s complaints in cassation, but following an ex officio examination of the case, quashed the judgment of 4 July 1995 as regards the qualification of the first charge of which the applicant had been convicted and the pertaining part of the sentence, corrected this qualification itself and determined the sentence for this charge at payment of nine separate fines of NLG. 500 each, the payment of NLG. 250 of each fine being suspended pending a probation period of two years.

Referring to Article 101a of the Judicial Organisation Act ( Wet op de Rechterlijke Organisatie , "RO"), the Supreme Court rejected as not prompting a determination of legal issues in the interest of legal unity and legal development without stating any further reasons the applicant’s complaints that certain arguments raised in connection with the application of EEC Directive 86/469 and which were stated in his memorandum of oral pleadings submitted to the Court of Appeal in the course of the hearing held on 23 June 1995 were incorrectly reproduced in the formal record of this hearing and that as a result thereof the Court of Appeal had not dealt with these arguments in its judgment of 4 July 1995.

Insofar as the applicant complained that the Dutch rules at issue, i.e. the complete prohibition of possession of cattle treated with growth inducing hormones, are incompatible with the EEC Council Directive 86/469 of 16 September 1986 and that the Court of Appeal should have sought a preliminary ruling on the matter from the Court of Justice of the European Communities, the Supreme Court noted that this Directive had in the meantime been replaced by Directive 96/23 of 23 April 1996. It rejected this complaint, holding that, according to the judgment of the Court of Justice of the European Communities of 8 October 1992 (No. C - 143/91) invoked by the applicant, one may possess animals to which - in strict compliance with the Directives concerned - substances have been administered for the purpose of therapeutic treatment. However, in the present case it had not been submitted or established before the trial courts that the substance at issue had been administered for that specific purpose.

The Supreme Court also rejected the applicant’s complaints under Article 8 of the Convention in respect of the manner in which the inspection was carried out on 15 November 1991, including that the officials involved had started to take samples in the applicant’s absence and without prior notification, holding that in cassation proceedings no complaints can be raised concerning facts and circumstances which have not been established and which have not been invoked before the trial courts.

b. Relevant domestic law and practice

The 1991 Ordinance on substances with a sympathomimetic effect ( Verordening stoffen met sympathico mimetische werking ) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle older than 14 weeks.

Pursuant to Article 3 para. 1 of that Ordinance it is illegal to have in stock, sell or purchase beef cattle to which such substances have been administered, and Article 4 para. 1 makes it illegal to have in stock, sell or purchase their meat.

Clenbuterol is, moreover, an unregistered animal medicine the use or possession of which is prohibited by Article 2 of the Animal Medicines Act ( Diergeneesmiddelenwet ).

The offences here described are economic offences for the purposes of the Economic Offences Act ( Wet op de Economische Delicten ), which Act lays down particular rules for the prosecution and punishment of economic offences. Insofar as procedure is concerned, it is a lex specialis in relation to the Code of Criminal Procedure ( Wetboek van Strafvordering , "CCP"), the provisions of the latter remaining applicable in so far as the Economic Offences Act does not provide otherwise.

A person convicted by the highest competent trial court may file an appeal in cassation with the Supreme Court (Article 427 CCP). An appeal in cassation is limited to points of law and procedural conformity (Article 99 RO).

An appellant in cassation has the right to submit written grounds of appeal within one month of lodging his appeal on points of law (Article 447 para. 3 CCP), but an appeal in cassation is not automatically declared inadmissible if this has not been done. An appellant in cassation may further submit at the hearing before the Supreme Court grounds of appeal not filed at an earlier stage (Article 433 CCP).

Following the Court’s judgment in the case of Borgers v. Belgium (Eur. Court HR, judgment of 30 October 1991, Series A no. 214 - B), the Supreme Court takes note, before determining an appeal in cassation, of the contents of any reaction from the side of the appellant in cassation to the advisory opinion of the Procurator-General or Advocate-General to the Supreme Court.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that arguments he had raised in connection with the application of EEC Directive 86/469 and Article 8 of the Convention and which were stated in his written pleadings submitted to the Court of Appeal in the course of the hearing held on 23 June 1995 were incorrectly reproduced in the formal record of this hearing. He submits that as a resulted of this the Court of Appeal did not respond to these arguments in its judgment of 4 July 1995, thus barring him from successfully raising these arguments before the Supreme Court.

2. The applicant complains under Article 6 §§ 1 and 3 (b) of the Convention that the Court of Appeal failed to seek a preliminary ruling from the Court of Justice of the European Communities.

3. The applicant complains under Article 6 of the Convention that, although he had requested this in his letter of 13 March 1997 to the Supreme Court, he was not given the opportunity to have the last word in the cassation proceedings.

4. The applicant complains under Article 8 of the Convention that the evidence against him has been unlawfully obtained. He submits that certain samples have been taken not only in the absence of any judicial control but also in his own absence and without his permission in that the officials of the General Inspection Service had arrived on his premises without the applicant having been informed of their arrival. He further complains that there are no adequate safeguards as regards the taking of samples and their subsequent handling.

5. The applicant complains under Article 10 of the Convention that he has been convicted on the basis of an unlawful Ordinance. He submits that, after the date of introduction of the present application, it has become known that the Netherlands Government have failed to seek approval from the European Commission of the European Union of a large number of legal rules of a technical nature, as required according to the Securitel judgment of 30 April 1996 of the Court of Justice of the European Communities (No. C - 194/94).

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that, as certain arguments raised on appeal had not been correctly recorded, the Court of Appeal did not respond to these arguments in its judgment of 4 July 1995. He further complains under Article 6 §§ 1 and 3 (b) of the Convention that the Court of Appeal failed to seek a preliminary ruling from the Court of Justice of the European Communities.

Article 6 of the Convention, insofar as relevant, reads:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal established by law. ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

b. to have adequate time and facilities for the preparation of his                           defence;

..."

As regards the applicant’s complaint that, in its judgment of 4 July 1995, the Court of Appeal failed to respond to certain arguments raised in his memorandum of oral pleading, the Court considers at the outset that the questions whether or not the arguments set out in the memorandum of oral pleading submitted by the defence were correctly included in the formal record of the hearing held on 23 June 1995 is not a matter which the Court, as such, can review under the terms of Article 19 of the Convention ( cf. Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45 ).

The Court observes that the memorandum of oral pleading by the defence was submitted by the applicant’s lawyer to the Court of Appeal on 23 June 1995 and that it was added to the applicant’s case-file. The Court further observes that both the Court of Appeal and the Supreme Court did in fact examine and reject the applicant’s arguments relating to EEC Directive 86/469 and Article 8 of the Convention. In these circumstances, the Court considers that, on this point, it cannot be held that the applicant did not receive a fair hearing of his case.

2. As to the applicant’s complaint that no preliminary ruling was sought from the Court of Justice of the European Communities, the Court considers that the Convention does not guarantee, as such, any right to have a case referred to the Court of Justice of the European Communities for a preliminary ruling. Nevertheless, a refusal of a request for such a referral may infringe the fairness of proceedings if it appeared to be arbitrary.

The Court cannot find that the reasons given by the Court of Appeal and the Supreme Court respectively for not seeking such a preliminary ruling can be regarded as unreasonable or arbitrary. Moreover, it does not appear that the applicant was unable or was insufficiently able to submit arguments based on rules emanating from the European Union which he considered relevant to the outcome of his case.

The Court is, therefore, of the opinion that also on this point it cannot be held that the applicant was deprived of a fair hearing of his case.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant further complains under Article 6 of the Convention that, although he had requested this in his letter of 13 March 1997 to the Supreme Court, he was not given the opportunity to have the last word in the cassation proceedings.

The Court notes that the applicant’s lawyer, by letter of 26 February 1996, submitted the applicant’s written complaints in cassation to the Supreme Court, which, together with the advisory opinion submitted by the Procurator-General, were considered by the Supreme Court in the course of its hearing held on 11 June 1996. In his subsequent letters of 18 June 1996 and 13 March 1997 to the Supreme Court, the applicant’s lawyer reacted to the advisory opinion and subsequent additional advisory opinion submitted to the Supreme Court by the Procurator-General.

In its judgment of 6 May 1997, the Supreme Court stated that it had noted the contents of the letters of 18 June 1996 and 13 March 1997. In these circumstances, the Supreme Court must have noted the request by the applicant’s lawyer to submit further oral explanations. The Supreme Court did, however, not respond to this request. The Court finds that the Supreme Court’s silence as to the lawyer’s unsubstantiated request to be allowed to make further oral submissions can reasonably be construed as an implied rejection of this request.

Considering that the applicant’s lawyer did in fact have the last word in the cassation proceedings, it follows that this part of the application must also be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicant complains under Article 8 of the Convention that the evidence against him has been unlawfully obtained. He submits that certain samples have been taken not only in the absence of any judicial control but also in his own absence and without his permission in that the officials of the General Inspection Service had arrived on his premises without the applicant having been informed of their arrival. He further complains that there are no adequate safeguards as regards the taking of samples and their subsequent handling.

Article 8 of the Convention provides as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Court notes that this complaint contains two distinct elements, namely the entry and search of the applicant’s premises, and the working methods used in obtaining the samples at issue and their subsequent handling .

a.) Insofar as the applicant appears to complain that the entry and search of his premises on 15 November 1991 violated his rights under Article 8 of the Convention, the Court notes that it does not appear that this complaint, as such, has been raised before the trial courts in the domestic proceedings. In the proceedings before the Court of Appeal, the applicant, relying on case-law of the Court in respect of Article 8 of the Convention, raised complaints which were all related to the working methods applied in obtaining samples and their subsequent handling.

In these circumstances, the Court considers that, as regards the compatibility of the entry and search as such with Article 8 of the Convention, the applicant has failed to duly exhaust domestic remedies as required by Article 35 § 1 of the Convention (cf. Eur. Court HR, Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV No. 15, p. 1210, § 66 ).

It follows that this part of the present complaint must, therefore, be rejected under Article 35 § 1 of the Convention.

b.) Insofar as the applicant complains under Article 8 of the Convention of the working methods used in obtaining the samples at issue and their subsequent handling, the Court considers that questions relating to the admissibility, reliability and credibility of evidence in criminal proceedings are matters to be considered under Article 6 of the Convention as relating to fairness of criminal proceedings (cf. Eur. Court HR, Delta v. France judgment of 19 December 1990, Series A no. 190). These are no matters which, as such, fall within the scope of Article 8 of the Convention.

The Court finds no indication in the case-file that the technical manner in which the samples were obtained in the present case or the way in which they were subsequently handled constituted an interference with the applicant’s rights under Article 8 of the Convention.

It follows that this part of the present complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

5. The applicant complains under Article 10 of the Convention that he has been convicted on the basis of an unlawful Ordinance. He submits that, after the date of introduction of the present application, it has become known that the Netherlands Government have failed to seek approval from the European Commission of the European Union of a large number of legal rules of a technical nature, as required according to the Securitel judgment of 30 April 1996 of the Court of Justice of the European Communities (No. C - 194/94).

Article 10 of the Convention provides as follows:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The Court is of the opinion that the facts of the case do not disclose an issue under Article 10 of the Convention.

It follows that this complaint must also be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Michael O’Boyle Elisabeth Palm

Registrar President