CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mars 1996

.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 }                          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)