AS TO THE ADMISSIBILITY OF
Application No. 31463/96
by Maatschap E.C. Dortmans & H.J.A. Dortmans
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 Maatschap E.C. Dortmans & H.J.A. Dortmans against the Netherlands
and registered on 13 May 1996 under file No. 31463/96;
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 legal person (maatschap), formed by two Dutch
citizens, and established at Son, the Netherlands. The applicant
exploits a pig and cattle farm. Before the Commission it is represented
by Th.J.H.M. Linssen, a lawyer practising in Tilburg.
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
Manure Act, the applicant had transferred a part of the "reference
quantity" of cattle (manure) to the "reference quantity" of pigs
(manure), which had resulted, according to the applicable calculation
system on the basis of flat rates (forfaitaire vaststelling), in an
increase in manure production, equally contrary to the Manure Act.
By judgment of 16 September 1993, the Magistrate for economic
offences (economische politierechter) of the Regional Court (Arrondis-
sementsrechtbank) of 's-Hertogenbosch 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 's-Hertogenbosch.
On 17 December 1993, the Court of Appeal quashed the judgment of
16 September 1993, acquitted the applicant of one charge, convicted it
of having breached the Manure Act by having unlawfully increased its
production of manure between 1 January and 31 December 1991 and imposed
a NLG. 10.000 fine.
The Court of Appeal rejected the argument of the defence that the
applicant, by using low phosphate feeding, had not exceeded the
permissible manure production under the Manure Act and that the
calculation of the applicant's manure production on the basis of the
statutory flat rates (forfaitaire bepalingen) was incompatible with
Article 6 para. 2 of the Convention in that it constituted an
unacceptable way of establishing evidence in criminal proceedings. The
Court of Appeal held that the relevant rules constituted a material
norm of conduct and that, even assuming that the applicant would be
able to prove that in reality less manure had been produced, the
prohibition of livestock extension would remain linked to a phosphate
production per animal fixed by flat rates.
The applicant's appeal in cassation was rejected by the Supreme
Court (Hoge Raad) on 18 April 1995. The Supreme Court rejected the
applicant's complaint of the use of flat rates in the calculation of
manure production, this being directly determined in the relevant
statutory rules. The Supreme Court further upheld the Court of Appeal's
finding that the statutory flat rates constituted a material norm of
conduct and were not contrary to rules on evidence in criminal
proceedings.
The Supreme Court further rejected the argument that the term
"production" in paragraphs 1 and 5 of the Manure Act were to be
interpreted as actual manure production as opposed to assessed
production on the basis of flat rates and upheld the finding of the
Court of Appeal that, even assuming that the applicant would be able
to prove that in reality less manure had been produced, it would still
be bound by the assessment of its production on the basis of the
statutory flat rates.
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. Article 14 of the Manure Act also prohibits
transfer of a reference quantity from one animal species to another.
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 para. 2 of the Convention
that the use of flat rates for the calculation of manure production,
which constitutes an irrefutable presumption against which no evidence
is allowed, is contrary to the principle of presumption of innocence.
The applicant further complains that, given their extreme
complexity, the rules on manure production are incompatible with
Article 7 para. 1 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 Article 6
para. 2 (Art. 6-2) of the Convention.
Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
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 it 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 Article 14 of the Manure
Act, it is prohibited to transfer reference quantities from one animal
species to another. 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
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 it the applicant
has not disputed the facts underlying the charges at issue and has not
been restricted in the exercise of its defence rights guaranteed by
Article 6 (Art. 6) of the Convention, the Commission does not find that
the applicant's rights under Article 6 para. 2 (Art. 6-2) of the
Convention have been infringed in the proceedings at issue.
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 extreme
complexity, the rules on manure production are incompatible with
Article 7 para. 1 (Art. 7-1) of the Convention.
Article 7 para. 1 (Art. 7-1) of the Convention 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."
The Commission notes in the first place that this complaint has
not been raised in the domestic proceedings. The question thus arises
whether the applicant has complied with the requirement of exhaustion
of domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention (cf. No. 19601/92, Dec. 19.1.95, D.R. 80, p. 46).
However, the Commission does not find it necessary to determine
this issue as the present complaint is in any event inadmissible for
the following reasons.
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 and cattle
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 its choices in its 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