AS TO THE ADMISSIBILITY OF
Application No. 31467/96
by Willem Arend SPIELE
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 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 9 February 1996
by Willem Arend SPIELE against the Netherlands and registered on
13 May 1996 under file No. 31467/96;
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 Dutch national, born in 1948, and resides in
De Lutte, the Netherlands. Together with his brother, the applicant
exploits a cattle farm. In the proceedings before the Commission he is
represented by Mr L.J.L. Heukels, a lawyer practising in Haarlem.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 28 August 1991, a preliminary judicial investigation
(gerechtelijk vooronderzoek) was opened against the applicant and his
brother on suspicions that on their farm substances with sympathico
mimetic effects were present and/or were administered to cattle.
On 5 September 1991, the public prosecutor at the Regional Court
(Arrondissementsrechtbank) of Almelo issued an interim measure
(voorlopige maatregel) within the meaning of Article 28 of the Act on
Economic Offences. The public prosecutor ordered the applicant and his
brother to refrain from removing from their farm cattle registered by
the General Inspection Department (Algemene Inspectiedienst,
hereinafter referred to as "AID") of the Ministry of Agriculture,
Nature Management and Fisheries (Ministerie van Landbouw, Natuurbeheer
en Visserij) unless prior permission had been given by the public
prosecutor and to refrain from preventing the identification of cattle
on their farm.
On 6 September 1991 the public prosecution department of the
Regional Court of Almelo issued a press-release stating that in the
context of preliminary judicial investigations (gerechtelijke
vooronderzoeken) into suspected trafficking in and use of prohibited
growth inducing veterinarian drugs and related offences house searches
had taken place on 45 places in both the Netherlands and abroad. The
press-release further stated that the investigation concerned a
pharmaceutical company, several veterinaries in the Netherlands, cattle
traders and cattle farmers.
On the same day, the farm exploited by the applicant and his
brother was searched by AID officials. They took a sample of the
contents of a bucket found on the premises, a urine sample of a young
bull found in the direct vicinity of the bucket and seized a number of
veterinarian drugs found on the premises.
On 17 September 1991, the Netherlands State Institute for the
Quality of Agricultural and Horticultural Products
(Rijkskwaliteitsinstituut voor Land- en Tuinbouwproducten) reported
that the urine sample taken had been tested and found positive for
clenbuterol.
The applicant's objection (bezwaar) against the interim measure
of 5 September 1991 was rejected by the Regional Court of Almelo on
30 September 1991. The court noted that the samples taken on the
applicant's farm had been tested and found positive for clenbuterol.
On 25 October 1991, the public prosecutor seized (inbeslagname)
the young bull of which a urine sample had been taken on
6 September 1991.
On 1 November 1991, the public prosecutor seized 45 bulls on the
applicant's farm. The animals were identified by numbers and
subsequently removed from the farm.
The applicant's objection (beklag) against the seizure was
rejected on 18 November 1991 by the Regional Court of Almelo. The
Regional Court noted that the applicant had stated before two judicial
officers, a police officer and his lawyer that he had administered
Ventipulmin, a veterinarian drug containing clenbuterol, to the
45 seized animals, who were older than 14 weeks whereas, pursuant to
the Decree on chemicals with sympathico mimetic effects of
9 January 1991 (Verordening stoffen met sympathico mimetische werking,
hereinafter referred to as "Decree"), it is prohibited to administer
clenbuterol to cattle older than 14 weeks or to hold, buy or sell such
cattle.
On 6 January 1992, pursuant to Article 117 of the Code of
Criminal Procedure (Wetboek van Strafvordering), the public prosecutor
sought permission for the destruction of the young bull seized on
25 October 1991 as it would never be suitable for human or animal
consumption purposes. Following a hearing held on 15 January 1992, the
Regional Court meeting in Chambers (Raadkamer) granted the request on
23 January 1992. It found that the animal was older than 14 weeks, had
been administered a clenbuterol containing drug shortly before
6 September 1991 and that consequently the animal was unsuitable for
consumption purposes.
The applicant was subsequently summoned to appear before the
Regional Court of Almelo on charges of offences under the Decree and
the Act on veterinarian drugs (Diergeneesmiddelenwet, hereinafter
referred to as "DGW").
By judgment of 5 November 1992, the Regional Court convicted the
applicant of offences under the Decree and the DGW and sentenced him
to payment of four fines amounting to a total of 3,500 Dutch guilders.
It further ordered the withdrawal from circulation (onttrekking aan het
verkeer) of the 45 bulls seized on 1 November 1991, the bull seized on
25 October 1991 and a total of 470 veterinarian drug doses.
On 19 November 1992, both the prosecution and the applicant filed
an appeal with the Court of Appeal (Gerechtshof) of Arnhem.
On 6 May 1993, pursuant to Article 117 of the Code of Criminal
Procedure, the public prosecutor requested the Court of Appeal of
Arnhem to order the destruction of the 45 bulls seized on
1 November 1991.
Following a hearing held in chambers on 17 May 1993, the Court
of Appeal granted the prosecution's request by decision of 25 May 1993.
In its judgment of 2 May 1994, following adversarial proceedings
in which hearings were held on 7 February 1994 and 18 April 1994, the
Court of Appeal quashed the judgment of 5 November 1992, convicted the
applicant of offences under the Industrial Organisation Act (Wet op de
Bedrijfsorganisatie) and the DGW and ordered the confiscation
(verbeurdverklaring) of the 45 bulls seized on 1 November 1991, the
bull seized on 25 October 1991 and a total of 470 veterinarian drug
doses. Given the value of the confiscated animals and items, the Court
of Appeal did not find it necessary to impose any additional sanctions.
The Court of Appeal based its conviction on, inter alia, the
applicant's statement made before the court on 7 February 1994
confirming the administration of Ventipulmin to the 46 animals seized
on his farm. The Court of Appeal did not accept the applicant's
argument that the animals had been administered Ventipulmin on medical
grounds upon advice of the veterinarian Mr. Z.
Insofar as the applicant has argued that the Dutch prohibition
against administering, for medical treatment, the clenbuterol
containing drug Ventipulmin to calves older than 14 weeks is contrary
to the EC Directives 81/602, 88/146 and 86/469 and in this connection
referred to the judgment of the Court of Justice of the European
Communities of 8 October 1992 in the case C-143/91, the Court of Appeal
held that the respective scopes of the first two Directives differed
from that of the Decree and that it did not find that the prohibition
contained in the Decree was contrary to any provision of the third
Directive. It noted in this respect that the applicant had failed to
indicate with which provision of this third Directive the Decree was
incompatible. As it found that no interpretation of the Directives was
necessary for deciding the applicant's case, the Court of Appeal did
not find it necessary to seek a preliminary ruling from the Court of
Justice on the points raised by the applicant.
The applicant filed an appeal in cassation with the Supreme Court
(Hoge Raad).
In its judgment of 24 October 1995, the Supreme Court rejected
the applicant's argument that the prohibition in Dutch law against the
administration of the clenbuterol containing veterinarian drug
Ventipulmin to calves older than 14 weeks is contrary to the specific
EEC Directives. The Supreme Court accepted the reasons given by the
Court of Appeal for rejecting the applicant's arguments on this point.
As to the failure of the Court of Appeal to respond to the
applicant's argument that, on the basis of the EC Directive 81/602 and
the Further Rules on Veterinarian Drugs Containing Clenbuterol (Nadere
regeling diergeneesmiddelen die clenbuterol bevatten) he was allowed
to administer Ventipulmin to his cattle, the Supreme Court held that
this failure could not lead to cassation as the Court of Appeal could
only have rejected this argument. The Supreme Court noted on this point
that, in the cassation proceedings, the applicant had not or
insufficiently contested the Court of Appeal's factual finding that
clenbuterol was not a substance covered by the EC Directives 81/602 and
88/146. According to the Supreme Court, the applicant had unjustly
relied on EC Directive 81/602. It further noted that both the Decree
and the Further Rules on Veterinarian Drugs Containing Clenbuterol
prohibit the administration of clenbuterol containing drugs to calves
older than 14 weeks.
After an ex officio examination of the judgment of the Court of
Appeal, the Supreme Court found that the Court of Appeal had
incorrectly qualified one of the offences of which it had convicted the
applicant. Consequently, it quashed the judgment of 2 May 1994 as
regards this qualification and corrected the qualification itself. It
rejected the appeal in cassation for the remainder.
COMPLAINTS
1. The applicant complains under Article 6 and Article 10 of the
Convention that the Court of Appeal and the Supreme Court rejected his
argument that he should have been acquitted (vrijspraak) or discharged
(ontslag van rechtsvervolging) as a conviction would be contrary to a
judgment of the Court of Justice of the European Communities and that
this question should, at least, have been put to the Court of Justice
for a preliminary ruling.
2. The applicant complains under Article 7 of the Convention that,
since the drugs at issue had been administered for medical purposes on
the conditions referred to in the judgment of the Court of Justice of
the European Communities of 8 October 1992 in the case C-143/91, this
treatment was not a punishable offence under EC rules and thus
international law.
THE LAW
1. The applicant complains under Article 6 and Article 10
(Art. 6, 10) of the Convention that he has been unjustly convicted and
that the courts involved failed to seek a preliminary ruling on a
relevant point from the Court of Justice of the European Communities.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by a ...
tribunal...."
The Commission recalls its constant case-law that it is not
competent to examine alleged errors of fact or law committed by
national courts, except where it considers that such errors might have
involved a possible violation of the rights and freedoms set forth in
the Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).
The Commission further recalls 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 under
Article 177 (3) of the EEC Treaty. Nevertheless, a refusal of a request
for such a referral may infringe the fairness of proceedings if it
appeared to be arbitrary (cf. No. 20631/92, Dec. 12.5.93, D.R. 74,
p. 274; and No. 15669/89, Dec. 28.6.93, D.R. 75, p. 39).
The Commission notes that the domestic courts have considered and
rejected the applicant's arguments relating to the compatibility of the
prohibition at issue with the EC rules relied on by the applicant. The
domestic courts rejected these arguments on the basis of reasons stated
in the relevant judgments.
The Commission cannot find that the reasons given for refusing
to seek a preliminary ruling from the Court of Justice of the European
Communities can be regarded as unreasonable or arbitrary.
The Commission further notes that the applicant was convicted
following adversarial proceedings in which he was given ample
opportunity to state his case and to submit whatever he found relevant
to the outcome of these proceedings.
In these circumstances, the Commission finds no indication that
the proceedings against the applicant fell short of the requirements
of Article 6 (Art. 6) of the Convention as regards the fairness of
proceedings.
The applicant also complains that his conviction and the refusal
to seek a preliminary ruling violate his rights under Article 10
(Art. 10) of the Convention, which guarantees the freedom of
expression.
The Commission considers that the facts of the present case do
not disclose an issue under Article 10 (Art. 10) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains under Article 7 (Art. 7) of the
Convention that the facts he was charged with cannot be regarded as
constituting a criminal offence.
Article 7 (Art. 7) of the Convention reads 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
confirms the principle that legal provisions which interfere with
individual rights must be adequately accessible and formulated with
sufficient precision to enable individuals to regulate their conduct.
It prohibits in particular the extension of existing offences to cover
facts which previously clearly did not constitute a criminal offence
(cf. No. 18892/91, Dec. 3.12.93, D.R. 76, p. 51).
The Commission notes that the applicant does not contest that the
facts of which he was convicted by the domestic courts constituted a
punishable offence under Dutch law at the relevant time. He did,
however, unsuccessfully challenge the compatibility of the relevant
Dutch rules with EC rules on the basis of the argument that the drugs
at issue had been administered for medical purposes, an argument which
was rejected by the domestic courts.
In these circumstances and recalling that it cannot entertain
complaints to the effect that national courts reached incorrect
findings as to the facts and law, the Commission considers that the
applicant's conviction does not disclose an issue under Article 7
(Art. 7) of the Convention.
It follows that this part of the application must also be
rejected as being 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