EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 14216/88
R. R. and G. R. against the NETHERLANDS
REPORT OF THE COMMISSION
(adopted on 14 October 1991)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-18) ......................................... 1-2
A. The application
(paras. 2-5) .................................. 1
B. The proceedings
(paras. 6-13) ................................. 1
C. The present Report
(paras. 14-18) ................................ 2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-35) ........................................ 3-5
A. The particular circumstances of the case
(paras. 19-32) ................................ 3
B. Relevant domestic law
(paras. 33-35) ................................ 4
III. OPINION OF THE COMMISSION
(paras. 36-47) ....................................... 6-7
A. Complaint declared admissible
(para. 36) .................................... 6
B. Point at issue
(para. 37) .................................... 6
C. The alleged violation of Article 6
para. 1 of the Convention
(paras. 38-46) ................................ 6
Conclusion (para. 47) ................................. 7
APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 8
APPENDIX II : DECISION ON THE ADMISSIBILITY
OF THE APPLICATION .......................... 9-14
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants, R. R. and G. R., are both Dutch citizens, born
in 1942 and 1912 and residing in Naarden and Tilburg, the Netherlands,
respectively. Before the Commission the applicants are represented by
Mr. Jaap Groen, a lawyer practising in The Hague.
3. The application is directed against the Netherlands. The
respondent Government are represented by their Agent, Mr. Karel de Vey
Mestdagh of the Netherlands Ministry of Foreign Affairs.
4. The application concerns the proceedings related to the
withdrawal from circulation of shirts belonging to the private company
with limited liability "A. B.V.", which the applicants jointly own and
manage. These proceedings started on 2 October 1981 with the seizure
of the shirts and ended on 8 September 1987 with the Supreme Court's
decision to reject the applicant's appeal against the withdrawal order.
5. Before the Commission the applicants complain of the length of
the proceedings and allege a violation of Article 6 para. 1 of the
Convention.
B. The proceedings
6. The application was introduced on 29 February 1988 and
registered on 14 September 1988 under file No. 14216/88. On 4
September 1989, the Commission decided to give notice of the
application to the respondent Government, inviting them to submit
observations in writing on the admissibility and merits of the
application.
7. The Government submitted their observations on 16 November 1989
and the applicants replied on 1 March 1990.
8. On 7 March 1991 the Commission declared the applicants'
complaint under Article 6 para. 1 of the Convention as to the length
of the proceedings admissible and the remainder of the application
inadmissible.
9. On 12 March 1991 the parties were invited, should they so
desire, to submit further observations regarding the merits of the
application.
10. The applicants submitted such observations on 27 March 1991.
The respondent Government's supplementary observations were submitted
on 23 April 1991.
11. The Government maintained their view that domestic remedies
were not exhausted, but the Commission found no basis for applying
Article 29 of the Convention.
12. After having consulted the parties, the Commission decided on
9 April 1991 to refer the case to the First Chamber.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions, the
Commission finds that there is no basis on which a friendly settlement
can be effected.
C. The present Report
14. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
C.L. ROZAKIS
L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
B. MARXER
15. The text of the Report was adopted by the Commission on 14
October 1991 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
16. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
17. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
19. The applicants jointly own a private company with limited
liability called "A. B.V.", hereinafter called A.
20. In the summer of 1981, the late husband of the second
applicant, the owner-manager of A., bought a stock of shirts from Mr.
T. in Zurich, Switzerland. The book value, as stated on the invoice
of these (approximately 99,000) shirts, was NLG 543,907. The shirts
represented a market value to A. of NLG 1,400,000.
21. On 30 September 1981, the shirts, packaged in 1673 boxes, were
presented for importation to the Dutch customs. They were accompanied,
inter alia, by three statements of origin, issued by the Zurich Chamber
of Commerce, specifying Japan as the country of origin, and by an
import licence for 99,000 shirts to be imported from Switzerland and
originating in Japan.
22. On 2 October 1981, the shirts were seized and the authorities
initiated an investigation into their origin, apparently on the
suspicion that the shirts were too inexpensive for them to have been
made in Japan.
23. By letter of 13 January 1982, the competent division of the
Commission of the European Communities in Brussels confirmed that the
shirts had not originated in Japan. Subsequent investigation revealed
that the shirts had been manufactured in South Korea. Textiles from
that country must be accompanied by a South Korean export licence which
must conform to an EEC import quota.
24. On 2 February 1983, the Public Prosecutor requested that the
shirts be withdrawn from circulation (onttrokken aan het verkeer).
Criminal proceedings had been instituted against A. on 12 October 1981.
However, the owner-manager died on 19 May 1983.
25. By decision of 22 June 1983, the Regional Court
(Arrondissementsrechtbank) of Amsterdam, after having adjourned the
case on 19 May 1983 upon request of A., ordered the withdrawal from
circulation of the shirts, but following A.'s appeal on points of law
this order was quashed by the Supreme Court (Hoge Raad) on 10 January
1984.
26. By letter of 26 March 1984, the Public Prosecutor informed A.'s
lawyer that he had conditionally dropped the criminal charges (sepot)
against A.
27. Also on 26 March 1984, the Public Prosecutor made a renewed
request for withdrawal from circulation of the shirts. This request
was dealt with in chambers by the Regional Court of Amsterdam on 5
April 1984, when the case was adjourned indefinitely. The record of
this hearing does not indicate why the case was adjourned.
28. The case was again heard in chambers on 9 November 1984, on
which occasion the Public Prosecutor informed A.'s lawyer he would
unconditionally drop the criminal charges against A., and on 4 January
1985. On 19 February 1985 the Court ordered the withdrawal from
circulation of the shirts. The Court based this decision on the
consideration that the shirts were illegally imported with the
ostensible purpose of circumventing the import quota by means of false
declarations of origin, and that, if they were returned to A., they
would very likely end up on the EEC market after all. Apparently, A.
had repeatedly requested the return of the shirts, so that it could
recoup some of its investment by selling the shirts to a non-EEC
country.
29. The Court considered that A. was not entitled to any
compensation, because A. ought to have known that the shirts were
undervalued for Japanese shirts of their type and fashion. Furthermore,
the Court stated that A. had failed to take action against Mr. T. of
Zurich when it was discovered that the declarations of origin were
false, while A. did make provision for the loss in its accounts in 1981
of NLG 621,150. Since then, A. had nevertheless apparently been
profitable, and it had to be considered that the shirts no longer had
the same value as they did in 1981 because they had gone out of
fashion. Therefore, the Court considered that the applicants did not
suffer disproportionately by the confiscation.
30. Before the Regional Court, A. had complained that the procedure
in chambers violated Article 6 para. 1 of the Convention because the
hearings were not public and the decision was not pronounced publicly.
31. A. appealed on 22 February 1985 to the Supreme Court, inter
alia, on the ground that the procedure leading to the withdrawal from
circulation of their property had exceeded a reasonable time, contrary
to Article 6 para. 1 of the Convention. They did not raise the
non-public character of the proceedings.
32. By decision of 8 September 1987, the Supreme Court rejected the
appeal. It considered, inter alia, that, according to the record of
the hearing, A. had not objected to the indefinite adjournment of the
case on 5 April 1984, nor had A. at any time requested a speedier
treatment of the case or claimed that the procedure had exceeded a
reasonable time.
B. Relevant domestic law
33. The withdrawal from circulation is provided for in Articles 36
b and c of the Penal Code, which read, insofar as relevant, as follows:
"Art. 36b. 1. Onttrekking aan het verkeer van in beslag genomen voorwerpen kan worden uitgesproken : [...] 4°. bij een afzonderlijke rechterlijke beschikking op vordering van het openbaar ministerie. [...] Art. 36c. Vatbaar voor onttrekking aan het verkeer zijn alle voorwerpen: [...] 5°. [...] voorzover zij van zodanige aard zijn, dat het ongecontroleerde bezit daarvan in strijd is met de wet of met het algemeen belang." "Art. 36b. 1. Withdrawal from circulation of seized objects can be pronounced : [...] 4°. by a separate judicial order upon request of the Public Prosecutor. [...] Art. 36c. Liable to withdrawal from circulation are all objects: [...] 5°. [...] insofar as they are of such a nature that the uncontrolled possession thereof is contrary to the law or the public interest." 34. This provision applies to seized goods which in this way can be withdrawn from circulation. It implies that the legal ownership of such goods passes to the State which can then dispose of them. This can result in, for instance, the destruction of the goods. 35. In its decision of 8 September 1987, the Supreme Court held that the present case concerned the determination of civil rights and obligations as the decision on the Public Prosecutor's application for a withdrawal from circulation of goods immediately determined the applicants' company's right, as the owner, to dispose of these goods. III. OPINION OF THE COMMISSION A. Complaint declared admissible 36. The Commission has declared admissible the applicants' complaint under Article 6 para. 1 (Art. 6-1) of the Convention as to the length of the proceedings. B. Point at issue 37. The point at issue is accordingly whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention. C. The alleged violation of Article 6 para. 1 (Art. 6-1) of the Convention 1. General considerations 38. Under the terms of Article 6 para. 1 (Art. 6-1) of the Convention, "in the determination of his civil rights and obligations a ... tribunal ...". 39. It is not disputed that the proceedings in question, relating to the withdrawal from circulation of goods belonging to the applicants' company, concerned a determination of the applicants' company's "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 40. The Commission recalls that the reasonableness of the length of proceedings must be assessed according to the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and of the authorities dealing with the case (see Eur. Court H.R., Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 11, para. 24). 2. Determination and assessment of the length of the proceedings 41. Regarding the period to be considered, the Commission notes that the proceedings at issue in the present case started on 2 October 1981 when the shirts were seized and ended on 8 September 1987 with the Supreme Court's decision to reject the applicants' company's appeal in cassation. The relevant period is therefore five years, eleven months and six days. 42. According to the applicants, this lapse of time cannot be regarded as "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. 43. The Government note that the Public Prosecutor applied for the withdrawal from circulation pending the criminal investigation on 2 February 1983 whereas the Court decided the case on 22 June 1983. The Supreme Court determined the appeal on 10 January 1984. In the Government's opinion this initial period was not unreasonably long. 44. The Government further note that on 26 March 1984, the Public Prosecutor again applied for an order to withdraw the goods from circulation. The application was dealt with by the Amsterdam Regional Court for the first time on 5 April 1984 and was determined on 19 February 1985. On 22 February 1985 the applicants' company appealed to the Supreme Court. On 8 September 1987 the Supreme Court dismissed the appeal. The Government are again of the opinion that the decisions of the Regional Court and the Supreme Court on the Public Prosecutor's second application were given within a reasonable time. 45. The Commission notes that the reasonableness of the length of courts proceedings should be determined in each case on the basis of the consideration of the complexity of the case, the conduct of the applicant and that of the judicial authorities. In the present case, there may have been a certain complexity in determining the origin of the shirts, but during the period which is now at issue the proceedings cannot be said to have been particularly complex. It does not appear that the proceedings were delayed as a result of the conduct of the applicants. As regards the conduct of the judicial authorities, the Commission notes that on 5 April 1984 the examination of the case by the Regional Court was adjourned indefinitely and not resumed until 9 November 1984. The reason for this adjournment has not been explained. Of particular significance is, however, the delay in the proceedings before the Supreme Court where the applicants' company's appeal was lodged on 22 February 1985 but the case was not decided until 8 September 1987. No explanation has been given of why more than two and a half years elapsed before the Supreme Court decided on the appeal. 46. The Commission therefore considers that the length of the disputed proceedings was not "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Conclusion 47. The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention. Secretary to the First Chamber President of the First Chamber (M. de Salvia) (J.A. Frowein) APPENDIX I HISTORY OF PROCEEDINGS Date Item _______________________________________________________________________ 29 February 1988 Introduction of application 14 September 1988 Registration of application (a) Examination of admissibility 4 September 1989 Commission's decision to invite the respondent Government to submit their observations on the admissibility and merits of the application 16 November 1989 Government's observations 1 March 1990 Applicant's observations in reply 7 March 1991 Commission's decision to declare the complaint under Article 6 para. 1 admissible and the remainder of the application inadmissible. Commission's decision to invite the parties, should they so desire, to submit further observations on the merits of the application (b) Examination of the merits 27 March 1991 Further observations by the applicants on the merits of the application 23 April 1991 Further observations by the respondent Government on the merits of the application 9 April 1991 Commission's decision to refer the case to the First Chamber 14 October 1991 Commission's deliberations on the merits, final vote and adoption of the Report
Full & Egal Universal Law Academy