AS TO THE ADMISSIBILITY OF
Application No. 26493/95
by Willem ZEGWAARD and ZEGWAARD B.V.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 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 22 November 1994
by Willem ZEGWAARD and ZEGWAARD B.V. against the Netherlands and
registered on 13 February 1995 under file No. 26493/95;
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
29 January 1997 and the observations in reply submitted by the
applicants on 9 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, W. Zegwaard, is a Dutch citizen, born in
1944, and residing at Rijswijk. The applicant company, Zegwaard B.V.,
is a company with limited liability, established under Dutch law, which
has its registered seat in Delft. The first applicant is the managing
director of the applicant company and holder of all its shares. Before
the Commission the applicants are represented by Mr. C.J. van Bavel,
a lawyer practising in Utrecht.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
In April 1989 preliminary judicial investigations were initiated
into allegations of, inter alia, forgery and illegal dumping of
chemical waste perpetrated by the applicant company. On 11 April 1989
the house of the first applicant and the premises of the applicant
company were searched, and on 18 September 1990 the first applicant was
detained on remand. On 17 October 1990 he was released.
On 14 October 1991 the applicants were summoned to appear before
the Regional Court (Arrondissementsrechtbank) of The Hague on
25 November 1991. The first applicant was charged with the following
criminal offences:
1. participation in an organisation managed by him which intended
to commit the criminal offences of (i) forgery, (ii) fraud,
(iii) the deliberate dumping of chemical waste and (iv) the
deliberate dumping of polluted waste matter;
2. attempt to obtain a permit to dump waste matter under false
pretences committed by an organisation on his orders and/or
whilst he was in actual charge of this act;
3. obtaining of an unlawful advantage committed by an organisation
on his orders and/or whilst he was in actual charge of this act;
4. deliberate use of false or forged documents committed by an
organisation on his orders and/or whilst he was in actual charge
of this act;
5. forging of documents stating weights committed by an organisation
on his orders and/or whilst he was in actual charge of this act;
6. forging of invoices committed by an organisation on his orders
and/or whilst he was in actual charge of this act;
7. dumping of chemical waste committed by an organisation on his
orders and/or whilst he was in actual charge of this act; and
8. violation of the regulations laid down in the Surface Water
Pollution Act (Wet Verontreiniging Oppervlaktewateren) committed
by an organisation on his orders and/or whilst he was in actual
charge of this act.
The applicant company was charged with the following offences:
A. participation in an organisation which had the intention to
commit the criminal offences of (i) forgery of so-called border
documents and other documents, (ii) fraud, (iii) the deliberate
dumping of chemical waste and (iv) the deliberate dumping of
polluted waste matter;
B. attempt to obtain a permit to dump waste matter under false
pretences;
C. obtaining of an unlawful advantage;
D. deliberate use of false or forged documents;
E. forging of documents stating weights;
F. forging of invoices;
G. dumping of chemical waste; and
H. violation of the regulations laid down in the Surface Water
Pollution Act.
Public hearings took place on 26 November and 3 December 1991.
As regards the first applicant, the Regional Court on
17 December 1991 declared the indictment in respect of the charges
under 1 (i) and (iii) null and void, acquitted him of the other charges
under 1 and the charges under 3, 4, 6 and 7, and convicted him of the
charges under 2, 5 and 8. It sentenced the first applicant to a
partially suspended term of 24 months' imprisonment less the time spent
in pre-trial detention. The Regional Court furthermore imposed a fine
of 100,000 Dutch guilders on the first applicant.
As regards the second applicant, the Regional Court on the same
day declared the indictment in respect of the charges under A (i) as
regards forgery of other documents and (iii) null and void, acquitted
it of the other charges under A and the charges under C and G, and
convicted the applicant company of the charges under B, D, E, F and H.
The Regional Court imposed a fine of 600,000 Dutch guilders on the
applicant company and obliged it to pay the State 50,000 Dutch guilders
to deprive it of the estimated financial advantages it had obtained.
Both applicants and the Prosecutions Department filed an appeal
against the Regional Court's decisions with the Court of Appeal
(Gerechtshof) of The Hague.
Public hearings before the Court of Appeal were held on 15 and
16 February, 9 March and 19 April 1993.
On 3 May 1993 the Court of Appeal quashed the Regional Court's
judgments. In regard to the first applicant, the Court of Appeal
considered that only the offence of attempted fraud (2) had been
proved. Nevertheless, it sentenced the first applicant to 12 months'
imprisonment less the time spent in pre-trial detention. In this
respect the Court of Appeal held, inter alia:
"Het hof heeft de op te leggen straf bepaald op grond van de ernst van het feit en de omstandigheden waaronder dit is begaan en op grond van de persoon en de persoonlijke omstandigheden van de verdachte zoals daarvan is gebleken uit het onderzoek ter terechtzitting. Daarbij is in het bijzonder het volgende in aanmerking genomen. De verdachte was binnen de Zegwaard-bedrijven niet alleen formeel maar ook, mede gezien de zogenaamde platte organisatiestructuur van de Zegwaard-bedrijven, materieel degene bij wie de uiteindelijke beslissingsmacht en verantwoordelijkheid berustten. Hij is voorts getypeerd als iemand die "zeer goed op de hoogte" was van hetgeen zich binnen de bedrijven afspeelde. Het moge zijn dat van de telastegelegde feiten maar één enkel feit bewezen is verklaard, maar feit blijft niettemin dat uit het onderzoek ter terechtzitting in hoger beroep naar voren is gekomen dat in de telastegelegde perioden binnen de Zegwaard-bedrijven tal van strafbare feiten - zoals oplichting van de dienst Gemeente Reiniging Den Haag en die van Voorburg (LVZ), het opzettelijk gebruikmaken van valse BNL-50 formulieren, het vervalsen dan wel valselijk opmaken van weegbonnen en facturen en het zich in strijd met de regels ontdoen van chemisch afval - heeft plaatsgevonden. Dat dit kon gebeuren, valt de verdachte - ongeacht het bepaalde in artikel 51 van het Wetboek van Strafrecht - ten zeerste aan te rekenen en moet, gezien het feit dat hij zich erop voorstond dat bij de Zegwaard-bedrijven alles volgens de regels gebeurde, des te verwerpelijker worden geoordeeld. De verdachte had er kennelijk geen bezwaar tegen dat, zulks uitsluitend ten bate van de Zegwaard-bedrijven en met voorbijgaan van milieubelangen, door middel van misleiding van overheden vergunningen c.q. ontheffingen werden verkregen. Een en ander acht het hof dermate strafwaardig dat het zwakke en weinig alerte beleid van die overheden alsook dat de milieuwetgeving zich als chaotisch en gebrekkig doet kennen daarvoor nauwelijks als een verzachtende omstandigheid kunnen gelden. Het hof is van oordeel dat, gelet op de aard en ernst van het bewezen feit en gelet op het vorenoverwogene, het opleggen van een onvoorwaardelijke gevangenisstraf ... de enige passende reactie vormt. Bij het bepalen van de strafmaat heeft het hof mede rekening gehouden met mogelijk negatieve effecten van alle publiciteit die de media sedert de huiszoekingen hebben gewijd aan deze strafzaak." "The Court has determined the sentence on the basis of the severity of the criminal offence and the circumstances under which it was committed, and on the basis of the personality and the personal circumstances of the accused as these have emerged from the hearings before the Court. The Court has had particular regard to the following. Within the Zegwaard group of companies the accused was the person in charge, taking final decisions and bearing responsibility, not only formally, but also in substance given the flat organisational structure of the group. He has furthermore been typified as a person who was "very well informed" of all matters within the companies. It may be true that of the offences he was charged with only one has been proved, but it has nevertheless emerged from the hearings on appeal that in the period during which the alleged offences took place a number of criminal offences were committed within the Zegwaard group, such as fraudulent acts in dealings with the municipal sanitation departments of The Hague and Voorburg (LVZ), the deliberate use of false border documents, the forging or false drawing up of documents stating weights and of invoices, and the disposal of chemical waste contrary to the regulations. The fact that these offences were allowed to occur may, despite Section 51 of the Criminal Code, to a large extent be attributed to the accused and should, given that he prided himself on the fact that everything at the Zegwaard group was done according to the rules, be deemed all the more reprehensible. The accused manifestly did not object to the fact that through deception of the authorities permits and exemptions were obtained, such only for the benefit of the Zegwaard group whereas the interests of the environment were ignored. The Court considers these facts worthy of punishment to such an extent that neither the feeble and not very alert policy of those authorities nor the chaotic and deficient appearance of the environmental legislation, could serve as a mitigating circumstance. The Court is of the opinion that, in view of the nature and seriousness of the proved offence and of the considerations above, the imposition of a non-suspended prison sentence ... is the only fitting reaction. In the determination of this sentence the Court has also had regard to the possible negative effects of all the publicity which the media have devoted to this case ..." In regard to the applicant company, the Court of Appeal declared the indictment in respect of the charges under A (i) insofar as this concerned the forgery of other documents, (iii) and (iv) and H null and void and acquitted it of the remaining charges under A and the charges under C and G. It convicted the applicant company of the charges under B, D, E and F and imposed on it a fine of 600,000 Dutch guilders. In this respect, it held, inter alia: "Het hof heeft de op te leggen straf bepaald op grond van de ernst van de feiten en de omstandigheden waaronder zij zijn begaan en op grond van de omstandigheden van de verdachte zoals daarvan is gebleken uit het onderzoek ter terechtzitting. Daarbij is in het bijzonder het volgende in aanmerking genomen. De verdachte heeft zich meermalen schuldig gemaakt aan valsheid in geschrift en het gebruikmaken van valselijk opgemaakte geschriften; zij heeft zich voorts schuldig gemaakt aan een poging tot oplichting. Het moge zo zijn dat de overige telastegelegde feiten het niet tot een bewezenverklaring hebben kunnen brengen, feit blijft dat uit het onderzoek ter terechtzitting naar voren is gekomen dat zich bij Zegwaard B.V. in de telastegelegde perioden tal van feiten hebben voorgedaan die stuk voor stuk als strafbare feiten zijn aan te merken. Zo heeft Zegwaard B.V. de Dienst Gemeente Reiniging van 's Gravenhage en die van Voorburg (LVZ) ertoe weten te bewegen een ontheffing voor het storten van 100.000 ton huisvuil in Mellery (België) te verkrijgen, welke ontheffing zij vervolgens ten onrechte uitsluitend ten eigen bate heeft aangewend. Voorts heeft Zegwaard B.V. zich in strijd met de regels veelvuldig ontdaan van allerlei soorten chemisch afval, zulks terwijl zij over geen enkele vergunning, ontheffing of deskundigheid terzake beschikte. Kennelijk diende een en ander om de bestaande praktijk te laten voortbestaan en stond men in werkelijkheid - anders dan naar buiten toe werd voorgewend - onverschillig tegenover het milieu, de milieuwetgeving en de daarvoor verantwoordelijke overheden. Dat die wetgeving zich als chaotisch en gebrekkig doet kennen en het door die overheden terzake gevoerde beleid zwak en weinig alert kan worden genoemd, doet aan de ernstige strafwaardigheid van voorgaande gedragingen niet af. Het hof is, gelet op de ernst van de bewezen feiten en gelet op het vooroverwogene, van oordeel dat, niettegenstaande de omstandigheid dat het tot minder bewezenverklaarde feiten komt dan waartoe de rechtbank is gekomen, toch een geldboete van gelijke omvang dient te worden opgelegd. Bij de vaststelling van de geldboete heeft het hof rekening gehouden zowel met de draagkracht van de verdachte zoals deze uit het onderzoek ter terechtzitting is gebleken, als met mogelijke negatieve effecten van alle publiciteit die de media sedert de huiszoekingen hebben gewijd aan deze strafzaak." "The Court has determined the sentence on the basis of the severity of the criminal offences and the circumstances under which they were committed, and on the basis of the accused's circumstances as these have emerged from the hearings before the Court. The Court has had particular regard to the following. The accused has several times committed forgery and has deliberately made use of documents falsely drawn up; it has also attempted to commit fraud. It may be true that the other offences [with which the accused was charged] have not been proved, but it has nevertheless emerged from the hearings on appeal that in the period during which the alleged offences took place a number of facts have occurred at Zegwaard B.V., each of which may be characterised as criminal offences. Thus Zegwaard B.V. has managed to persuade the municipal sanitation departments of The Hague and Voorburg (LVZ) to grant an exemption enabling it to dump 100,000 tons of household refuse in Mellery (Belgium), which exemption was subsequently wrongfully used with the sole purpose of benefiting [Zegwaard B.V.] only. Zegwaard B.V. has furthermore many times disposed of different kinds of chemical waste contrary to the regulations and without being in possession of any permit, exemption or professional knowledge. All these actions were manifestly undertaken in order to continue an existing practice, whereas in reality, contrary to what was pretended towards the outside world, [Zegwaard B.V.] was indifferent towards the environment, the environmental legislation and the responsible authorities. The Court considers these facts worthy of punishment to such an extent that neither the feeble and not very alert policy of those authorities nor the chaotic and deficient appearance of the environmental legislation, could serve as a mitigating circumstance. The Court is of the opinion, in view of the seriousness of the proved offences and of the considerations above, and notwithstanding the fact that it has found the accused guilty of fewer offences than the Regional Court, that a fine of the same amount should nevertheless be imposed. In the determination of this fine the Court has had regard to the accused's financial resources as these have appeared from the hearings, as well as to the possible negative effects of all the publicity which the media have devoted to this case ..." The applicants and the Prosecutions Department both filed appeals in cassation against the judgments of 3 May 1993 with the Supreme Court (Hoge Raad). The applicants raised, inter alia, the following complaint concerning the reasoning applied by the Court of Appeal in respect of the determination of the sentences: "... 2. The Court of Appeal was wrong to take account of criminal offences which came to light during the hearings, since it has not been determined that the applicants committed these offences ... 3. The offences to which the Court refers in this respect concern offences in respect of which the indictment has been declared null and void, whereas in respect of one offence - the illegal dumping of chemical waste - the applicants have been acquitted ..." On 31 May 1994 the Supreme Court declared the appeals in cassation of the Prosecutions Department inadmissible on the ground that they had been lodged out of time, and rejected the applicants' appeals in cassation. As regards the applicants' complaint of the determination of the sentences, the Supreme Court considered that, in general, a judge, when determining the sentence to be imposed, may take account of facts and circumstances which have emerged at the hearing. In respect of the first applicant, the Supreme Court held furthermore: "7.2. ... Weliswaar blijkt uit de processen-verbaal van de terechtzittingen in hoger beroep niet dat de verdachte de strafbare feiten heeft begaan die hem zijn telastegelegd doch ten aanzien waarvan het Hof de inleidende dagvaarding nietig heeft verklaard en die waarvan hij is vrijgesproken, doch het is niet onbegrijpelijk dat het Hof uit het verhandelde ter terechtzittingen, zoals blijkt uit de daarvan opgemaakte processen-verbaal, heeft afgeleid dat binnen de Zegwaard-bedrijven tal van strafbare feiten zijn begaan, zoals die welke het Hof ... heeft vermeld. Voorts kon het Hof uit het verhandelde ter terechtzittingen ... afleiden dat de beslissingsmacht in en de verantwoordelijkheid over de Zegwaard-bedrijven op de verdachte rustten. 7.3. Het Hof mocht een en ander in onderling verband beschouwen. Door aldus te overwegen dat het de verdachte ten zeerste valt aan te rekenen dat binnen de Zegwaard-bedrijven die strafbare feiten werden gepleegd, heeft het Hof kennelijk en niet onbegrijpelijk tot uitdrukking gebracht dat de verdachte, als degene die de beslissingsmacht had binnen de Zegwaard-bedrijven, een verantwoordelijke positie bekleedde en dat hij die verantwoordelijke positie niet of onvoldoende heeft aangewend om te voorkomen dat de door het Hof bedoelde strafbare feiten binnen die bedrijven werden gepleegd. Het stond het Hof vrij deze op de persoon van de verdachte betrekking hebbende omstandigheid in aanmerking te nemen bij het bepalen van de op te leggen straf. ..." "7.2 ... It is true that it does not appear from the minutes of the hearings on appeal that the accused committed the criminal offences with which he had been charged but in respect of which the Court of Appeal had declared the indictment null and void or of which he had been acquitted. However, the fact that the Court of Appeal deduced from what was debated at the hearings ... that within the Zegwaard group a number of criminal offences have been committed, such as those mentioned by the Court of Appeal ..., is not inexplicable. The Court of Appeal was further able to deduce from what was debated at the hearings ... that within the Zegwaard group the power of decision and the responsibility for the group lay with the accused. 7.3. The Court of Appeal was entitled to consider the above in correlation. By holding that the commission of criminal offences within the Zegwaard group was to a large extent attributable to the accused, the Court of Appeal obviously and not inexplicably stated that the accused, as the person entrusted with the power to decide within the Zegwaard group, held a position of responsibility and that he did not or not sufficiently exercise this position of responsibility in order to prevent the criminal offences indicated by the Court of Appeal from being committed within these companies. The Court of Appeal was free to take account of these circumstances which concern the person of the accused when it determined the sentence to be imposed. ..." The Supreme Court's judgment concerning the applicant company contained phrases of a similar nature. B. Relevant domestic law and practice Article 51 of the Criminal Code (Wetboek van Strafrecht) provides as follows: 1. Strafbare feiten kunnen worden begaan door natuurlijke personen en rechtspersonen. 2. Indien een strafbaar feit wordt begaan door een rechtspersoon, kan de strafvervolging worden ingesteld en kunnen de in de wet voorziene straffen en maatregelen, indien zij daarvoor in aanmerking komen, worden uitgesproken: 1*. tegen die rechtspersoon, dan wel 2*. tegen hen die tot het feit opdracht hebben gegeven, alsmede tegen hen die feitelijke leiding hebben gegeven aan de verboden gedraging, dan wel 3*. tegen de onder 1* en 2* genoemden te zamen. 3. (...) 1. Offences may be committed by natural persons and legal persons. 2. If an offence is committed by a legal person criminal proceedings may be instituted and the punishments and other measures provided for by law may be implemented where appropriate: 1*. against the legal person, or alternatively, 2*. against the persons who ordered the commission of the offence as well as the persons who were in actual charge of the prohibited act, or alternatively, 3*. against the persons referred to under 1* and 2* together. 3. (...) In its well-established case-law the Supreme Court further holds that the court dealing with the facts may not impose a sentence which exceeds the maximum sentence provided for in the relevant legal provisions. However, when determining the sentence, there is no legal impediment preventing the court from taking into account, to the detriment of the accused, any aggravating circumstances which have emerged from the trial. According to Section 99 para. 1 (2) of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) the Supreme Court may quash judgments of lower courts if it finds that they are contrary to the law. The Convention is part of Dutch law. COMPLAINTS The applicants complain that when it determined the sentences to be imposed on them, the Court of Appeal took into account offences with which the applicants had not been charged, of which they had been acquitted, or in respect of which the indictment had been declared null and void. In addition, the first applicant also complains that in the sentence imposed on him he was held responsible for offences committed by a legal entity, whereas he had been acquitted of the charges accusing him of ordering and guiding the legal entity to commit these offences. The applicants furthermore complain that it was only at the stage of sentencing that they were confronted with the fact that the Court of Appeal took account of offences with which they had not been charged, of which they had been acquitted or in respect of which the indictment had been declared null and void. They had thus been unable to react to this and, if necessary, provide evidence to the contrary. The applicants claim not to have been able to challenge this state of affairs before the Supreme Court, because the decision of the Court of Appeal to take into account certain offences when determining the sentences is closely related to the facts, whereas the Supreme Court does not establish facts. They invoke Article 6 paras. 1 and 2 of the Convention. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 22 November 1994 and registered on 13 February 1995. On 16 October 1996 the Commission decided to communicate the application to the respondent Government. The Government's written observations were submitted on 29 January 1997, after an extension of the time-limit fixed for that purpose. The applicants replied on 9 April 1997, also after an extension of the time-limit. THE LAW The applicants claim to have been victims of a breach of Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention in that the principle of presumption of innocence was violated and in that they were unable adequately to challenge before the Supreme Court the taking into account of offences of which they had not been found guilty in the determination of the sentence imposed by the Court of Appeal. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads: "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..." Article 6 para. 2 (Art. 6-2) of the Convention reads: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." 1. The Government contend in the first place that the applicants have failed to comply with the requirement laid down in Article 26 (Art. 26) of the Convention in that they did not bring the alleged violation of Article 6 paras. 1 and 2 (Art. 6-1, 6-2) before the Supreme Court. The applicants argue that they did complain before the Supreme Court that they had in effect been convicted of offences which had not been proved. They further maintain that since the Supreme Court cannot rule on the facts of a case, they were unable to exercise their defence rights in respect of the offences which the Court of Appeal took into account when determining the sentence to be imposed. The Commission recalls that pursuant to Article 26 (Art. 26) of the Convention it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. The mere fact that an applicant has submitted his case to the competent courts does not in itself constitute compliance with this rule. It is also required that any complaint made before the Commission should have been raised at least in substance, and thus without necessarily requiring a particular reference to the Convention, during the proceedings concerned (cf. No. 11921/86, Dec. 12.10.88, D.R. 57, p. 81; No. 16278/90, Dec. 3.5.93, D.R. 74, p. 93). The Commission notes that the applicants did not raise their complaint under Article 6 para. 1 (Art. 6-1) of the Convention, either formally or in substance, during the proceedings before the Supreme Court. However, it appears from Section 99 para. 1 (2) of the Judicial Organisation Act and the fact that the Convention is part of Dutch law that alleged violations of the Convention may be invoked in cassation proceedings. The Commission considers that in these circumstances the applicants, in order to exhaust domestic remedies, should and could have complained to the Supreme Court that they had not been able to exercise their defence rights in respect of the offences taken into account by the Court of Appeal in the determination of their sentence. It follows that this part of the application must be rejected pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention. As regards the complaint under Article 6 para. 2 (Art. 6-2) of the Convention, the Commission notes that in the proceedings before the Supreme Court the applicants complained that the Court of Appeal, when determining their sentence, had taken into account criminal offences which had come to light during the hearings. The Commission accepts that the applicants thus basically complained that they were punished for offences of which they had not been found guilty according to law. In the Commission's view, this amounts to a complaint of a violation of the principle of the presumption of innocence as laid down in Article 6 para. 2 (Art. 6-2) of the Convention. It is true that in their cassation memorial the applicants then stated that the Court of Appeal had referred to offences in respect of which the indictment had been declared null and void and to one offence of which the applicants had been acquitted. They thus did not raise expressis verbis the complaint that account had been taken of offences with which they had not been charged. Nevertheless, the Commission considers that for the purposes of Article 26 (Art. 26) of the Convention in the present case it must be deemed sufficient for the applicants to have complained in the domestic proceedings, as they did, that in the determination of their sentence regard was had to offences the commission of which had emerged from the hearings. Insofar as their complaint under Article 6 para. 2 (Art. 6-2) is concerned, therefore, the applicants must be considered to have satisfied the requirement of exhaustion of domestic remedies. 2. As to the merits of the complaint under Article 6 para. 2 (Art. 6-2), the Government submit that the applicants were only convicted of offences with which they had been charged. However, when determining a penalty, a court is not obliged to confine itself to the offences with which an accused has been charged, but it may also bear in mind circumstances as long as these have been raised at the hearing or are generally known. The Government point out that in the present case the Court of Appeal thus also took into account, for example, the possible negative effects on the applicants of the media attention which the case had attracted. Moreover, in passing sentence, the Court of Appeal had regard to aggravating and extenuating circumstances which related to the case and the person and company concerned. With regard to the first applicant, the Government argue that it was established during the proceedings that numerous offences had been committed within the Zegwaard companies. Although the Court of Appeal explicitly did not conclude that these offences had been committed by the first applicant, it was nevertheless able to deduce from what emerged from the hearings that the power of decision and the responsibilities for the Zegwaard companies had been his. By holding, therefore, that the commission of these offences was to a large extent attributable to the first applicant, the Court of Appeal was able to conclude that although the first applicant was not criminally liable these circumstances should nevertheless be taken into account in the determination of the sentence to be passed. Similarly, with regard to the applicant company, the Government submit that the Court of Appeal concluded from what emerged at the hearings that numerous activities had taken place within the Zegwaard companies which could be considered to constitute criminal offences. Again, the Court of Appeal did not find that the applicant company had committed these offences itself, but it merely took into account all kinds of facts relating to the circumstances. According to the Government, the most important aspect of the principle of presumption of innocence relates to the basis for conviction. They argue in this respect that in the present case the applicants were convicted on the basis of legally recognised evidence submitted during the trial by the prosecuting authorities which the applicants were given every opportunity to refute. The applicants agree with the Government that a court may take into account all conceivable facts and circumstances in passing sentence provided that in doing so it does not violate the principle of presumption of innocence. In their opinion, a court goes beyond what can be accepted in this respect if, as in the present case, when stating its reasons for imposing a particular sentence, it describes as offences matters of which it has previously acquitted the accused, in respect of which it had held the indictment to be null and void or with which the accused had not been charged. They further submit that the first applicant was acquitted of the great majority of the offences with which he was charged precisely because he could not be held responsible in legal terms as the person actually in charge under Section 51 para. 2 of the Criminal Code. Yet in the determination of the sentence the Court of Appeal nevertheless held the first applicant responsible for these offences. Having regard to the parties' submissions and the case-law of the Convention organs, the Commission considers that this part of the application raises complex questions of fact and law which require an examination of the merits. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring this part inadmissible have been established. For these reasons, the Commission, unanimously, DECLARES ADMISSIBLE, without prejudging the merits, the applicants' complaint that the principle of presumption of innocence was violated when the Court of Appeal in the determination of the sentence took into account offences with which they had not been charged, in respect of which the indictment had been declared null and void or of which they had been acquitted; DECLARES INADMISSIBLE the remainder of the application. M.-T. SCHOEPFER G.H. THUNE Secretary President to the Second Chamber of the Second Chamber
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