AS TO THE ADMISSIBILITY OF
Application No. 34970/97
by Willem Hendrik KLEIN POELHUIS
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 16 October 1995
by Willem Hendrik KLEIN POELHUIS against the Netherlands and registered
on 18 February 1997 under file No. 34970/97;
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 applicant is a Dutch national, born in 1955, and exploits a
pig farm in Haaksbergen, the Netherlands. Before the Commission he is
represented by Mr R.L.H Boas, a lawyer practising in Bergen op Zoom.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
1. Particular circumstances of the case
In the course of an inspection by officials of the General
Inspection Service of the Ministry of Agriculture, Nature Conservancy
and Fisheries (Algemene Inspectiedienst van het Ministerie van
Landbouw, Natuurbeheer and Visserij) it was found that, contrary to the
applicable rules on manure production, the applicant had increased the
number of pigs on his farm in the years 1989, 1990 and 1991, which had
resulted, according to the applicable calculation system on the basis
of flat rates (forfaitaire normen), in an unlawful increase in manure
production.
By judgment of 27 May 1993, the Magistrate for economic offences
(economische politierechter) of the Regional Court (Arrondis-
sementsrechtbank) of Almelo acquitted the applicant of offences under
the Manure Act (Meststoffenwet) for lack of evidence.
The prosecution filed an appeal with the Court of Appeal
(Gerechtshof) of Arnhem. In its interlocutory judgment of
6 December 1993, the Court of Appeal held that the investigation had
not been complete. It decided to hear witnesses and ordered the
summoning of the applicant, a representative of the Ministry of
Agriculture, Nature Conservancy and Fisheries as an expert-witness and
one of the officials of the General Inspection Service of the Ministry
of Agriculture, Nature Conservancy and Fisheries who had inspected the
applicant's farm in order to hear them.
Hearings were held before the Court of Appeal on 22 November 1993
and 14 March 1994, in the course of which the persons summoned were
heard before the Court of Appeal.
On 28 March 1994, the Court of Appeal quashed the judgment of
27 May 1993, convicted the applicant of having unlawfully increased the
production of manure in 1989, 1990 and 1991 and imposed a NLG. 15.000
fine, suspending the payment of NLG. 10.000 of this fine pending a
probation period of two years.
The Court of Appeal only partially accepted the argument of the
defence that the number of pigs he was allowed to keep under the
relevant rules had to be increased. It rejected the argument of the
defence that the determination of the applicant's manure production on
the basis of the statutory flat rates and not on the basis of the real
production was incompatible with Article 6 para. 2 of the Convention.
The applicant's appeal in cassation was rejected by the Supreme
Court (Hoge Raad) on 18 April 1995. It rejected the applicant's
complaint on the use of flat rates in the calculation of manure
production, as this was directly determined in the relevant statutory
and secondary rules. The Supreme Court further held that the statutory
flat rates constituted a material norm of conduct compatible with the
requirements of Article 7 of the Convention.
2. Relevant domestic law
Pending the adoption of the Manure Act, the Dutch Parliament
adopted the Interim Act on Restrictions on Pig and Poultry Farms
(Interimwet Beperking varkens- en pluimveehouderijen - hereinafter
referred to as the "Interim Act"). The Interim Bill had been submitted
to Parliament on 2 November 1984 and the Interim Act entered into force
on 10 January 1985. Parliament found it necessary to adopt an Interim
Act in view of the urgent need to control the production of manure by
livestock farms given its undesired environmental effects. Under the
Interim Act it was prohibited, as from 3 November 1984, to increase the
livestock of pig and poultry farms and thus the output of manure.
On 27 November 1986 the Dutch Parliament adopted the Manure Act
replacing the Interim Act. The Manure Act entered into force on
1 January 1987. Pursuant to Articles 6 and 8 of the Manure Act, further
rules in respect of the application of the Manure Act were set by Order
in Council (Algemene Maatregel van Bestuur), i.e. the Manure
Registration Order (Registratiebesluit Dierlijke Meststoffen) and the
Rules indicating animal species and their manure production (Regeling
aanwijzing diersoorten en hun mestproductie).
The Manure Act thus established certain norms on the basis of
which the permitted quantity of manure produced can be determined for
each individual farm. The quantity thus determined is, in practice,
referred to as the "reference quantity of manure" (referentie-
hoeveelheid dierlijke meststoffen). The reference quantity for a farm
is determined on the basis of flat rates, which differ for each animal
species, and on the basis of the situation of this farm on
31 December 1986.
Pursuant to Article 14 of the Manure Act it is prohibited to
increase the production of manure, insofar as this increase would
result in a situation where the total production of manure, calculated
on the basis of flat rates per animal species, is or exceeds
125 kilogrammes of phosphate per hectare per year of the exploitable
surface of the farm.
A violation of Section 14 of the Manure Act may result in
criminal proceedings pursuant to the Act on Economic Offences (Wet op
de Economische Delicten).
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the use of flat rates for the calculation of manure production,
resulting in a situation where the determination of manure production
is being reduced to a counting of pigs' tails, is contrary to the
principle of presumption of innocence.
The applicant further complains that, given their complexity, the
rules on manure production are incompatible with the requirements of
Article 7 of the Convention.
THE LAW
1. The applicant complains that the use of flat rates for the
calculation of permissible manure production is contrary to the
presumption of innocence referred to in Article 6 (Art. 6) of the
Convention.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads
as follows:
"1. ...
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. ..."
Insofar as the applicant can be understood as complaining that
the domestic courts erred in their assessment of the evidence by
failing to accept the argument of the defence that regard should be had
to the actual production of manure on the farm he exploits, the
Commission recalls in the first place its constant case-law that it
cannot examine alleged errors of fact or law committed by national
courts, unless it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).
Secondly, the Commission recalls that Article 6 para. 2
(Art. 6-2) of the Convention does not prohibit presumptions of fact or
law in principle. Rather, it requires States to confine presumptions
within reasonable limits which take into account the importance of what
is at stake and maintain the rights of the defence (cf. Eur. Court HR,
Salabiaku v. France judgment of 7 October 1988, Series A no. 141, p.
16, para. 29; and Pham Hoang v. France judgment of 25 September 1992,
Series A no. 243, p. 21, para. 33).
The Commission notes that, pursuant to the Manure Act, it is
prohibited to exceed a fixed level of production of manure. The
Commission further notes that the calculation of manure production per
animal species has been determined in statutory and secondary
legislation, according to which this calculation is to be made on the
basis of flat rates.
Having regard to the aim and purpose of the environmental
legislation and the obvious technical difficulties in determining real
manure production in individual cases, the Commission cannot find that
the presumption at issue, i.e. the calculation of manure production
based on flat rates per animal species, oversteps reasonable limits for
the purposes of Article 6 para. 2 (Art. 6-2) of the Convention.
Moreover, noting that, in the proceedings against the applicant,
the Court of Appeal has heard a number of witnesses and has provided
the defence with ample opportunity to state its case and to submit
whatever it found relevant, the Commission does not find that the
applicant's defence rights under Article 6 (Art. 6) of the Convention
have been infringed.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that, given their complexity, the
rules on manure production are incompatible with Article 7 (Art. 7) of
the Convention.
Article 7 (Art. 7) of the Convention provides as follows:
"1. 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.
2. This Article shall not prejudice the trial and punishment
of any person for any act or omission which, at the time when it
was committed, was criminal according to the general principles
of law recognised by civilised nations."
The Commission recalls that Article 7 (Art. 7) of the Convention
embodies, inter alia, the principle that only the law can define a
crime and prescribe a penalty and the principle that criminal law must
not be extensively construed to an accused's detriment, for instance
by analogy. From these principles it follows that an offence must be
clearly defined in the law. This requirement is satisfied where the
individual concerned can reasonably foresee 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 criminally
liable.
When referring to "law", Article 7 (Art. 7) of the Convention
alludes to the very same concept as that to which the Convention refers
elsewhere when using that term, a concept which comprises statutory law
as well as case-law and implies qualitative requirements, notably those
of accessibility and foreseeability. The scope of the notion of
foreseeability depends to a considerable degree on the content of the
text at issue, the field it is designed to cover and the number and
status of those to whom it is addressed.
A law may still satisfy the requirement of foreseeability even
if the person concerned has to take appropriate legal advice to assess,
to a degree that is reasonable in the circumstances, the consequences
which a given action may entail. This is particularly true in relation
to persons carrying on a professional activity, who are used to having
to proceed with a high degree of caution when pursuing their
occupation. They can on this account be expected to take special care
in assessing the risks that such activity entails (Eur. Court HR,
Cantoni v. France judgment of 15 November 1996, to be published in
Reports 1996, paras. 29, 31 and 35).
The Commission notes that the applicant exploits a pig farm and
that the relevant rules had been adopted already a number of years
prior to the events at issue. In these circumstances and in the light
of the principles set out above, the Commission is of the opinion that
the detailed and explicit rules at issue were sufficiently clear to
enable the applicant, if need be with appropriate advice, to foresee
the possible consequences under the legislation on manure production
of his choices in his professional activities.
It follows that this complaint must also be rejected as
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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy