AS TO THE ADMISSIBILITY OF
Application No. 23908/94
by M.F.B.V.
against the Netherlands
The European Commission of Human Rights sitting in private on
7 March 1996, the following members being present:
MM. S. TRECHSEL, President
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
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 31 March 1994 by
M.F.B.V. against the Netherlands and registered on 18 April 1994 under
file No. 23908/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 December 1994 and the observations in reply submitted by the
applicant on 28 February 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch company with limited liability having
its registered seat at Barendrecht, the Netherlands. It is represented
by Mr. J.M. Sjöcrona, a lawyer practising in The Hague.
The facts as presented by the parties may be summarised as
follows.
a. Particular circumstances of the case
On 2 and 4 December 1992 the Economic Control Service
(Economische Controle Dienst) seized deep-frozen cherries and
blackberries belonging to the applicant company, the reason being that
they were believed to have been imported in violation of the 1992
Serbia and Montenegro Sanctions Order (Sanctiebeschikking Servië en
Montenegro), such importation constituting an offence against the Act
on Economic Offences (Wet op de Economische Delicten).
On 10 December 1992 the applicant company filed an objection
(beklag) within the meaning of Section 552a of the Code of Criminal
Procedure (Wetboek van Strafvordering, hereinafter referred to as
"CCP"), requesting that the seizure be lifted and that its goods be
returned. Following adversarial proceedings in which the applicant
company was represented by the lawyer Mr. F.L., the Regional Court
(Arrondissementsrechtbank) of Arnhem rejected the objection in its
decision (beschikking) of 1 February 1993.
On 11 February 1993 the applicant company lodged an appeal in
cassation with the Supreme Court (Hoge Raad) against the decision of
the Regional Court.
On 15 February 1993 the Regional Court transmitted the case-file,
including the full text of the decision of 1 February 1993, to the
Supreme Court.
In his letter of 22 February 1993, Mr. J.M. Sjöcrona informed the
Registrar of the Supreme Court that he would represent the applicant
company in the cassation proceedings. Mr. Sjöcrona further requested
to be provided with the customary copies of the relevant documents of
the case-file as soon as possible. He also informed the Registrar that
the applicant company's previous lawyer had, by letter of
10 February 1993, requested the Regional Court to transmit the case-
file as soon as possible to the Supreme Court. A copy of that letter
was submitted for information. Mr. Sjöcrona finally requested the
Supreme Court to deal with the case expeditiously given the perishable
nature of the seized goods.
On 1 March 1993, the time-limit contained in Section 447 para.
3 CCP for the submission of the applicant company's grounds of
cassation (middelen van cassatie) expired. At that point in time no
such grounds had been submitted.
On 18 March 1993 Mr. Sjöcrona's secretary contacted the Registry
of the Supreme Court by telephone and was informed that the case-file
had arrived in the meantime, that the case would be dealt with
expeditiously, but that no specific information could be given as
regards the question as to when copies of the relevant documents in the
case-file would be provided to Mr. Sjöcrona or when the case would be
dealt with as the responsible person was absent until 22 March 1993.
On 23 March 1993 the Registry of the Supreme Court sent the
copies of the case-file to Mr. Sjöcrona, who submitted the applicant
company's grounds of cassation in a memorial dated 8 April 1993.
On 26 July 1993 the Procurator-General (Procureur-Generaal) to
the Supreme Court, in his advisory opinion to the Supreme Court, noted
that the applicant company's memorial had not been submitted within the
time-limit provided for in Section 447 para. 3 CCP and that the Supreme
Court, therefore, could not to take it into account. The Procurator-
General stated that, therefore, the appeal could not lead to cassation.
He further found no grounds for cassation ex officio.
On 5 October 1993 the Supreme Court rejected the appeal. It held
that, as the grounds of cassation had not been submitted within one
month from the date on which the appeal in cassation had been lodged,
it could, therefore, not examine these grounds. The Supreme Court
further found no reason to quash the appealed decision ex officio. The
Supreme Court's decision was received by the applicant company on
8 November 1993.
By letter of 10 November 1993 addressed to the President of the
Criminal Law Section of the Supreme Court, Mr. Sjöcrona complained that
he has only received the relevant copies of the case-file after the
expiry of the time-limit. He further submitted a copy of his letter of
22 February 1993 and informed the President of what the Supreme Court
Registry had stated by telephone on 18 March 1993. He finally informed
the President that he had not received a copy of the Procurator-
General's opinion of 26 July 1993 together with the Supreme Court's
decision of 5 October 1993 until on 8 November 1993.
By letter of 19 November 1993, the President of the Criminal Law
Section of the Supreme Court informed Mr. Sjöcrona that unfortunately
the Supreme Court had not been aware of this state of affairs, but that
the Supreme Court had examined the contested decision ex officio.
The parties have not stated whether or not criminal proceedings
have been brought against the applicant company.
b. Relevant domestic law
According to Section 94 CCP, items which may serve to establish
the truth or whose confiscation (verbeurdverklaring) or withdrawal from
circulation (onttrekking aan het verkeer) can be ordered are liable to
be seized (inbeslagneming).
Under Section 18 of the Act on Economic Offences the competent
investigating officers (opsporingsambtenaren) may seize goods liable
for seizure.
Pursuant to Section 6 para. 2 of the Act on Economic Offences,
apart from prison sentences and/or fines, certain additional
punishments may also be imposed for offences against the Act on
Economic Offences. These additional punishments are, inter alia,
confiscation of goods and claims referred to in Section 33a of the
Criminal Code (Wetboek van Strafrecht, hereinafter referred to as
"CC").
Section 33a CC defines what is liable for confiscation. This
includes, inter alia, items and/or claims partially or wholly obtained
by criminal offences or through the proceeds thereof and items with
which such offences have been committed.
According to Section 33 CC, confiscation may be pronounced
following a conviction of any criminal offence.
Withdrawal from circulation is provided for in Section 36b,
Section 36c and Section 36d CC. Withdrawal from circulation entails
that the ownership of (already seized) items passes to the State, which
can then dispose of them. Under Section 36b CC withdrawal from
circulation can be pronounced either by a judgment or, in the absence
of criminal proceedings, by a separate judicial order upon the request
of the public prosecutor when it is found that the items concerned are
of such a nature that their uncontrolled possession is contrary to the
law or the public interest. Consequently, a conviction is no
prerequisite for an order for withdrawal from circulation.
Under Section 552b CCP, interested parties other than the
convicted person may file an objection against the confiscation or
withdrawal from circulation of items belonging to such parties. If the
objection is held to be founded, the competent court may order the
revocation of the confiscation or withdrawal from circulation. If the
court revokes a confiscation, it can nevertheless order the withdrawal
from circulation if the items concerned are eligible for such an order.
Pursuant to Section 552a para. 1 CCP interested parties including
the suspect may file an objection against, inter alia, a seizure, the
use of seized items and the delay in ordering their return. If the
competent court finds the objection well-founded, it will issue a
corresponding order. The proceedings under Section 552a CCP have been
recently amended to the effect that they are no longer held in the
judges' chambers (raadkamer) but in public.
It is for the public prosecution authorities to decide whether
or not a person who is suspected of a criminal offence shall be
prosecuted (Sections 167 and 242 CCP).
When a suspect seeks clarification as to whether or not criminal
proceedings will be instituted, it is possible to request the competent
court to issue a formal declaration that the case is terminated
(verklaring dat de zaak geëindigd is).
If the interests of criminal proceedings no longer require
seizure, seized goods are returned to, in principle, the person from
whom they have been seized (Section 118 CCP). Such a situation arises,
inter alia, when no criminal proceedings have been brought and no final
order for withdrawal from circulation has been issued.
If an order to return seized items cannot be executed because the
items have been lawfully alienated, destructed or otherwise disposed
of, the person to whom the goods should be returned shall receive an
amount of money equivalent to the sum these goods would reasonably have
attracted if sold (Section 119 CCP).
COMPLAINTS
1. The applicant company complains of a violation of Article 6 para.
1 of the Convention in that the Supreme Court did not examine its
grounds of cassation. This, in its view, violated its right to a fair
hearing, since the reason for the late submission of these grounds was
that the applicant company did not receive the decision of the Regional
Court before the expiry of the one month time-limit, which was an
element outside the control of the defence, and the Supreme Court did
not even look into the reasons why the time-limit had not been
respected. Moreover, the applicant company points out that there was
also inequality of arms since the Supreme Court, in its practice, does
not disregard memorials by a public prosecutor which are submitted
after the expiry of the corresponding time-limit when the delay is due
to the fact that the public prosecutor had not yet received the
documents necessary to formulate the grounds of cassation.
The applicant company points out that the reason for the late
communication of the case-file in the present case was apparently to
be found in the practice of Dutch courts to give so-called head and
tail judgments (kop-staartvonnissen), i. e. judgments which contain no
reasons, and to draft the reasons only after an appeal has been lodged.
In support of his complaint in this regard, the applicant company
refers to the judgment of the European Court of Human Rights in the
Hadjianastassiou case (Eur. Court H.R., judgment of 16 December 1992,
Series A no. 252).
2. The applicant company alleges a further violation of its right
under Article 6 para. 1 of the Convention to a fair trial in that it
was not given the opportunity of replying to the Procurator-General's
conclusions of 26 July 1993 and thus to explain the reasons for its
delay in submitting the grounds of appeal. These conclusions were not
communicated to the company until after the Supreme Court had given its
judgment and together with that judgment. The applicant company refers
in this respect to the European Court's judgment in the Borgers case
(Eur. Court H.R., judgment of 30 October 1991, Series A no. 214-B).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 March 1994 and registered
on 18 April 1994.
On 2 September 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 16
December 1994, after an extension of the time-limit fixed for that
purpose. The applicant company replied on 28 February 1995.
THE LAW
The applicant company complains under Article 6 para. 1
(Art. 6-1) of the Convention that it did not receive a fair trial in
the proceedings at issue in that, due to the judicial authorities'
failure to provide the applicant's cassation lawyer with copies of the
relevant documents, it could not submit its grounds of cassation within
the statutory time-limit whilst the failure to respect this time-limit
was subsequently held against it by the Supreme Court. It further
complains that it was not provided with an opportunity to respond to
the Procurator-General's advisory opinion.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
... hearing ... by a ... tribunal ... "
The Government submit that the proceedings at issue fall outside
the scope of Article 6 para. 1 (Art. 6-1) of the Convention. The aim
of these proceedings was not to reach a finding as regards the question
whether the applicant company was guilty of a criminal offence and thus
did not involve the determination of a "criminal charge" within the
meaning of this provision.
The Government further submit that it also did not involve a
determination of the applicant company's "civil rights and obligations"
within the meaning of the Article 6 para. 1 (Art. 6-1) of the
Convention as no final judgment concerning the fate of the seized goods
is given during the seizure proceedings. Any decision, in response to
a complaint, about whether or not to uphold the seizure is of a purely
provisional nature. On this point the Government also refer to a
Supreme Court judgment of 16 February 1993 (Nederlandse Jurisprudentie
1993, no. 647) in which it was held that proceedings pursuant to
Section 552a CCP do not involve a determination of "civil rights and
obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention as a decision on a request to return seized items does not
determine the merits of the alleged right to the items concerned.
The applicant company submits that it may be concluded from an
amendment to the procedure pursuant to Section 552a CCP, which entered
into force on 1 January 1994, that the legislator considers that such
proceedings are covered by Article 6 para. 1 (Art. 6-1) of the
Convention in that, contrary to the situation at the relevant time,
such proceedings are now public, the publicity of proceedings being one
of the requirements of this provision.
As regards the question whether the proceedings at issue fall
within the scope of Article 6 para. 1 (Art. 6-1) of the Convention, the
Commission is of the opinion that these proceedings cannot be regarded
as determining a "criminal charge" within the meaning of Article 6
para. 1 (Art. 6-1), as they did not concern the question whether or not
the applicant company was guilty of a criminal offence.
In respect of the question whether the proceedings involved the
determination of "civil rights and obligations" the Commission recalls
that for Article 6 para. 1 (Art. 6-1) of the Convention to be
applicable under its "civil" head, there must be a dispute over civil
rights and obligations and the outcome of the proceedings in question
must be directly decisive for such a right or obligation, mere tenuous
connections or remote consequences not being sufficient to bring
Article 6 para. 1 (Art. 6-1) into operation (cf. Eur. Court H.R., Fayed
judgment of 21 September 1994, Series A no. 294-B, p. 46, para. 56).
The Commission notes that the proceedings at issue did not
deprive the applicant company of its ownership of the seized deep-
frozen fruits. The outcome of the proceedings merely prevented the
applicant company from freely disposing of these goods pending the
outcome of the investigation by the prosecution authorities and,
possibly, the subsequent proceedings before the trial courts.
It follows that these proceedings were merely of a conservatory
and provisional character and concerned an interim measure taken in the
interest of the investigation regarding possible offences against the
Act on Economic Offences. These proceedings are thus to be
distinguished from proceedings which involve deprivation of property,
which is the case when confiscation or withdrawal from circulation is
at issue.
Consequently, the Commission finds that the proceedings of which
the applicant company complains did not involve a determination of
civil rights and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention (cf., mutatis mutandis, No. 12446/86, Dec.
5.5.88, D.R. 56, p. 229).
It follows that the application must be rejected as being
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy