CEDH · CASELAW;REPORTS;ENG — 14 octobre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    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:   <Dutch>         "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."         <Translation>         "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