CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 31463/96                       by Maatschap E.C. Dortmans & H.J.A. Dortmans                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 21 May 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 16 October 1995 by Maatschap E.C. Dortmans & H.J.A. Dortmans against the Netherlands and registered on 13 May 1996 under file No. 31463/96;        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 legal person (maatschap), formed by two Dutch citizens, and established at Son, the Netherlands. The applicant exploits a pig and cattle farm. Before the Commission it is represented by Th.J.H.M. Linssen, a lawyer practising in Tilburg.        The facts of the case, as submitted by the applicant, may be summarised as follows.   1.    Particular circumstances of the case        In the course of an inspection by officials of the General Inspection Service of the Ministry of Agriculture, Nature Conservancy and Fisheries (Algemene Inspectiedienst van het Ministerie van Landbouw, Natuurbeheer and Visserij) it was found that, contrary to the Manure Act, the applicant had transferred a part of the "reference quantity" of cattle (manure) to the "reference quantity" of pigs (manure), which had resulted, according to the applicable calculation system on the basis of flat rates (forfaitaire vaststelling), in an increase in manure production, equally contrary to the Manure Act.        By judgment of 16 September 1993, the Magistrate for economic offences (economische politierechter) of the Regional Court (Arrondis- sementsrechtbank) of 's-Hertogenbosch acquitted the applicant of offences under the Manure Act (Meststoffenwet) for lack of evidence. The prosecution filed an appeal with the Court of Appeal (Gerechtshof) of 's-Hertogenbosch.        On 17 December 1993, the Court of Appeal quashed the judgment of 16 September 1993, acquitted the applicant of one charge, convicted it of having breached the Manure Act by having unlawfully increased its production of manure between 1 January and 31 December 1991 and imposed a NLG. 10.000 fine.        The Court of Appeal rejected the argument of the defence that the applicant, by using low phosphate feeding, had not exceeded the permissible manure production under the Manure Act and that the calculation of the applicant's manure production on the basis of the statutory flat rates (forfaitaire bepalingen) was incompatible with Article 6 para. 2 of the Convention in that it constituted an unacceptable way of establishing evidence in criminal proceedings. The Court of Appeal held that the relevant rules constituted a material norm of conduct and that, even assuming that the applicant would be able to prove that in reality less manure had been produced, the prohibition of livestock extension   would remain linked to a phosphate production per animal fixed by flat rates.        The applicant's appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 18 April 1995. The Supreme Court rejected the applicant's complaint of the use of flat rates in the calculation of manure production, this being directly determined in the relevant statutory rules. The Supreme Court further upheld the Court of Appeal's finding that the statutory flat rates constituted a material norm of conduct and were not contrary to rules on evidence in criminal proceedings.        The Supreme Court further rejected the argument that the term "production" in paragraphs 1 and 5 of the Manure Act were to be interpreted as actual manure production as opposed to assessed production on the basis of flat rates and upheld the finding of the Court of Appeal that, even assuming that the applicant would be able to prove that in reality less manure had been produced, it would still be bound by the assessment of its production on the basis of the statutory flat rates.   2.    Relevant domestic law        Pending the adoption of the Manure Act, the Dutch Parliament adopted the Interim Act on Restrictions on Pig and Poultry Farms (Interimwet Beperking varkens- en pluimveehouderijen - hereinafter referred to as the "Interim Act"). The Interim Bill had been submitted to Parliament on 2 November 1984 and the Interim Act entered into force on 10 January 1985. Parliament found it necessary to adopt an Interim Act in view of the urgent need to control the production of manure by livestock farms given its undesired environmental effects. Under the Interim Act it was prohibited, as from 3 November 1984, to increase the livestock of pig and poultry farms and thus the output of manure.        On 27 November 1986 the Dutch Parliament adopted the Manure Act replacing the Interim Act. The Manure Act entered into force on 1 January 1987. Pursuant to Articles 6 and 8 of the Manure Act, further rules in respect of the application of the Manure Act were set by Order in Council (Algemene Maatregel van Bestuur), i.e. the Manure Registration Order (Registratiebesluit Dierlijke Meststoffen) and the Rules indicating animal species and their manure production (Regeling aanwijzing diersoorten en hun mestproductie).        The Manure Act thus established certain norms on the basis of which the permitted quantity of manure produced can be determined for each individual farm. The quantity thus determined is, in practice, referred to as the "reference quantity of manure" (referentie- hoeveelheid dierlijke meststoffen). The reference quantity for a farm is determined on the basis of flat rates, which differ for each animal species, and on the basis of the situation of this farm on 31 December 1986.        Pursuant to Article 14 of the Manure Act it is prohibited to increase the production of manure, insofar as this increase would result in a situation where the total production of manure, calculated on the basis of flat rates per animal species, is or exceeds 125 kilogrammes of phosphate per hectare per year of the exploitable surface of the farm. Article 14 of the Manure Act also prohibits transfer of a reference quantity from one animal species to another.        A violation of Section 14 of the Manure Act may result in criminal proceedings pursuant to the Act on Economic Offences (Wet op de Economische Delicten).     COMPLAINTS        The applicant complains under Article 6 para. 2 of the Convention that the use of flat rates for the calculation of manure production, which constitutes an irrefutable presumption against which no evidence is allowed, is contrary to the principle of presumption of innocence.        The applicant further complains that, given their extreme complexity, the rules on manure production are incompatible with Article 7 para. 1 of the Convention.     THE LAW   1.    The applicant complains that the use of flat rates for the calculation of permissible manure production is contrary to Article 6 para. 2 (Art. 6-2) of the Convention.        Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        Insofar as the applicant can be understood as complaining that the domestic courts erred in their assessment of the evidence by failing to accept the argument of the defence that regard should be had to the actual production of manure on the farm it exploits, the Commission recalls in the first place its constant case-law that it cannot examine alleged errors of fact or law committed by national courts, unless it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (cf. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).        Secondly, the Commission recalls that Article 6 para. 2 (Art. 6-2) of the Convention does not prohibit presumptions of fact or law in principle. Rather, it requires States to confine presumptions within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (cf. Eur. Court HR, Salabiaku v. France judgment of 7 October 1988, Series A no. 141, p. 16, para. 29; and Pham Hoang v. France judgment of 25 September 1992, Series A no. 243, p. 21, para. 33).        The Commission notes that, pursuant to Article 14 of the Manure Act, it is prohibited to transfer reference quantities from one animal species to another. The Commission further notes that the calculation of manure production per animal species has been determined in statutory and secondary legislation, according to which this calculation is to be made on the basis of flat rates.        Having regard to the aim and purpose of the environmental legislation and the obvious technical difficulties in determining manure production in individual cases, the Commission cannot find that the presumption at issue, i.e. the calculation of manure production based on flat rates per animal species, oversteps reasonable limits for the purposes of Article 6 para. 2 (Art. 6-2) of the Convention.        Moreover, noting that in the proceedings against it the applicant has not disputed the facts underlying the charges at issue and has not been restricted in the exercise of its defence rights guaranteed by Article 6 (Art. 6) of the Convention, the Commission does not find that the applicant's rights under Article 6 para. 2 (Art. 6-2) of the Convention have been infringed in the proceedings at issue.        It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains that, given their extreme complexity, the rules on manure production are incompatible with Article 7 para. 1 (Art. 7-1) of the Convention.        Article 7 para. 1 (Art. 7-1) of the Convention provides as follows:        "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."        The Commission notes in the first place that this complaint has not been raised in the domestic proceedings. The question thus arises whether the applicant has complied with the requirement of exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention (cf. No. 19601/92, Dec. 19.1.95, D.R. 80, p. 46).        However, the Commission does not find it necessary to determine this issue as the present complaint is in any event inadmissible for the following reasons.        The Commission recalls that Article 7 (Art. 7) of the Convention embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty and the principle that criminal law must not be extensively construed to an accused's detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual concerned can reasonably foresee from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable.        When referring to "law", Article 7 (Art. 7) of the Convention alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability. The scope of the notion of foreseeability depends to a considerable degree on the content of the text at issue, the field it is designed to cover and the number and status of those to whom it is addressed.        A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails (Eur. Court HR, Cantoni v. France judgment of 15 November 1996, to be published in Reports 1996, paras. 29, 31 and 35).        The Commission notes that the applicant exploits a pig and cattle farm and that the relevant rules had been adopted already a number of years prior to the events at issue. In these circumstances and in the light of the principles set out above, the Commission is of the opinion that the detailed and explicit rules at issue were sufficiently clear to enable the applicant, if need be with appropriate advice, to foresee the possible consequences under the legislation on manure production of its choices in its professional activities.        It follows that this complaint must also be rejected as 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