CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 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. 31462/96                       by Jan MOSTERD                       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 11 December 1995 by Jan MOSTERD against the Netherlands and registered on 13 May 1996 under file No. 31462/96;        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 1946, and resides in Maasland, the Netherlands. He is a cattle trader. 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.   a.    Particular circumstances of the present case        On 2 October 1992, the Office of 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) in Alphen aan den Rijn received an anonymous phone call in which suspicions against the applicant were expressed in respect of the way cows were fattened on his premises.        On 6 October 1992, AID officials carried out an orientation visit to the applicant's premises. Since it was not possible to observe these premises from a distance and as the information provided by the anonymous informer indicated that forbidden substances were being administered to the cows on the applicant's premises, the officials proposed the public prosecutor to carry out an investigation by taking urine samples of cows present on these premises and to issue an interim measure (voorlopige maatregel) pursuant to Article 28 of the Act on Economic Offences (Wet op de Economische Delicten) in order to prevent that, after the taking of samples, the cows concerned were transported to an unknown address or were slaughtered.        On 16 November 1992, four AID officials, holding the status of special civil servants of the national police (onbezoldigd ambtenaar van het Korps Rijkspolitie), inspected the applicant's premises. According to the officials' minutes on findings (proces-verbaal van bevindingen), they presented themselves to the applicant and informed him of the reasons for their visit. When asked, the applicant stated that he had no objections against an inspection by the AID officials of possible presence of veterinarian drugs on his premises. In the applicant's presence, samples of certain veterinarian drugs found, food samples and urine samples of ten cows were taken. These samples were wrapped, stamped and officially sealed. The applicant was provided with a formal list of seal numbers.        On the same day, the urine samples and counter samples were sent for tests for substances with sympathico mimetic or hormonal effects (stoffen met sympathico mimetische of hormonale werking) to the Netherlands State Institute for the Quality of Agricultural and Horticultural Products (Rijkskwaliteitsinstituut voor Land- en Tuinbouwproducten). Also on 16 November 1992, the public prosecutor issued an interim measure under Article 28 of the Act on Economic Offences in respect of the cows of which samples had been taken. The samples of the veterinarian drugs found were sent for testing to the Netherlands State Institute for Drugs Examination (Rijksinstituut voor Geneesmiddelenonderzoek).        On 3 December 1992, the AID informed the applicant that the urine samples taken on 16 November 1992 had been tested and found positive for clenbuterol, a substance with sympathico mimetic effects. On the same day the AID seized (inbeslagname) the ten cows from which urine samples had been taken. The seized animals were left in the applicant's care.        On 28 December 1992, the applicant informed the AID that one of the seized cows had died. After an AID official has seen and identified the cow by its earmark, the animal was taken away for destruction. Following consultations with the public prosecutor, the remaining nine cows were transported on 8 January 1993 from the applicant's premises to another location.        On 6 January 1993, the AID received the test results of the food samples taken at the applicant's premises. They had been tested and found negative for, inter alia, clenbuterol.        By two separate summonses, the applicant was subsequently ordered to appear before the Magistrate for economic matters (economische politierechter) of the Regional Court (Arrondissementsrechtbank) of Rotterdam for offences under Article 2 of the Decree on chemicals with sympathico mimetic effects (Verordening stoffen met sympathico mimetische werking, hereinafter referred to as "Decree") and offences under the Act on veterinarian drugs (Diergeneesmiddelenwet, hereinafter referred to as "DGW"), respectively.        Adversarial proceedings took place before the Magistrate, in the course of which hearings were held on 6 April, 3 June and 14 June 1993. Before the Magistrate evidence was taken from the applicant and two expert-witnesses: an AID official and a university teacher/pharmacist. The expert-witness stated, inter alia, that the use of clenbuterol is only allowed for treatment of animals kept for reproduction purposes and only if the life of a sick animal is threatened. He further stated that the consumption of beef containing clenbuterol may have harmful effects for human beings.        By judgment of 14 June 1993, the Magistrate convicted the applicant of having violated the Decree and the DGW. The applicant was sentenced to payment of ten fines of 1,000 Dutch guilders each and confiscation (verbeurdverklaring) of the ten cows in respect of the offences under the Decree and to payment of two fines of 750 Dutch guilders each and confiscation of several substances found on the applicant's premises for the offences under the DGW. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of The Hague.        On 8 July 1994, a hearing was held before the Court of Appeal. The Court of Appeal took evidence from the applicant and one of the AID officials involved in the taking of samples on 16 November 1992.        In its judgment of 21 July 1994, the Court of Appeal quashed the Magistrate's judgment of 14 June 1993, declared the summons relating to the offences under the DGW null and void on technical grounds, found the applicant guilty of ten offences under the Decree and sentenced him to payment of ten fines of 1,000 Dutch guilders each and confiscation of the ten cows.        As to the argument by the defence that the rules and practices concerning the treatment of taken samples offered insufficient guarantees as regards unauthorised access by persons to those samples between the moment these samples were taken and their receipt at the test laboratory, the Court of Appeal noted that at the relevant time there were no national or international rules as to the taking, wrapping and transporting of samples and counter samples for purposes of controlling compliance with the Decree. It further noted that the President of the Commodity Board (Produktschap) had not availed himself of his competence to issue rules on the taking of samples for these purposes.        Insofar as the applicant relied in this respect on the findings of the European Court in the case of Funke v. France (Eur. Court HR, Funke v. France judgment of 25 February 1993, Series A no. 256-A), the Court of Appeal held that that case concerned exclusively guarantees against interferences with legal objects protected by Article 8 para. 1 of the Convention, which it found not to be at issue in the present case ("... nu het daarbij <Funke v. France judgment> uitsluitend ging om de waarborgen tegen inbreuken op de - in deze zaak niet aan de orde zijnde - rechtsgoederen beschermd door Artikel 8 lid 1 van het Europees verdrag...").        The Court of Appeal considered as decisive whether there was sufficient certainty that the analysed samples came from the animals at issue and that nobody had access to the contents of the samples between their sealing and arrival at the laboratory. The Court of Appeal found this certainty established by the contents of the means of evidence used in its judgment. It further considered relevant that there is a statutory protection against the actions suggested by the defence (tampering with sealed bags containing samples) as, according to Article 199 para. 1 of the Criminal Code (Wetboek van Strafrecht), tampering with official seals constitutes a criminal offence.        The Court of Appeal further rejected the argument by the defence that the fair trial requirements under Article 6 para. 1 of the Convention had not been met as also the counter samples had been brought to the laboratory together with the samples and had not been left with the applicant.        The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). He complained, inter alia, that the Court of Appeal's finding that at the relevant time there were no national or international rules governing the taking of samples for control as to compliance with the Decree, that the Court of Appeal had unjustly held that the European Court's judgment in the case of Funke v. France concerned exclusively legal objects protected by Article 8 para. 1 of the Convention which according to the Court of Appeal were not at issue in the present case, that the Court of Appeal had unjustly rejected the argument that the evidence had been unlawfully obtained, and that the applicant's rights under Articles 6 and 8 of the Convention had been violated given the absence of sufficient guarantees in the law against abuses in connection with the procedure at issue.        The Supreme Court rejected the applicant's appeal in cassation on 3 July 1995. It accepted the Court of Appeal's finding that the applicant had not submitted any facts or circumstances on grounds of which it should be held that his rights under Article 8 of the Convention had been violated and that the failure of the President of the Commodity Board to issue rules on the taking of samples was not contrary to Article 8 of the Convention.        It further accepted the reasons given by the Court of Appeal for its findings as regards the reliability of the test results it had used in evidence. The Supreme Court did not find that this reasoning deprived the applicant of a fair trial within the meaning of Article 6 para. 1 of the Convention. It noted in this context that the applicant had not submitted on what grounds the investigation in the present case should be regarded as unreliable and that he had never requested a counter-expertise.        Referring to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie), the Supreme Court further rejected the remainder of the applicant's appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development.   b.    Relevant domestic law        The possession of cattle to which certain chemicals have been administered is an offence according to the Decree on chemicals with sympathico mimetic effects, a regulation referred to in Article 93 of the Industrial Organisation Act (Wet op de Bedrijfsorganisatie) thus falling within the scope of the Act on Economic Offences.        Unless expressly ruled out in the Act on Economic Offences or the statutory or secondary legislation referred to in Article 1 and Article 1a of that Act, the provisions of the Code of Criminal Procedure apply to the criminal investigation of economic offences (Article 25 of the Code on Economic Offences).        Article 17 para. 1 of the Act on Economic Offences reads:   <Translation>      "With the investigation of economic offences are entrusted:      1.     the civil servants referred to in Article 141 of the Code      of Criminal Procedure;      2.     the civil servants appointed by decision, published in the      Netherlands Official Gazette, of the Minister of Justice in      agreement with Our other Minister concerned;      3.     the customs duty and excise tax civil servants."        Article 141 of the Code of Criminal Procedure, at the relevant time, read:   <Translation>      "With the investigation of criminal offences are entrusted:      1.     the Public Prosecutors;      2.     the District Court judges in cases, which do not fall      within their cognizance;      3.     the mayors in municipalities, where there is no municipal      police commissioner;      4.     the civil servants of the National Police Corps and the      municipal police, with the exception of:      a.     the paid civil servants in a lower rank than the one      determined by Our Minister of Justice;      b.     the civil servants, appointed to perform exclusively      technical or administrative tasks;      5.     the commissioners of the national police and the special      civil servants of the national police;      6.     for the cases to be determined by Our Ministers of Justice      and of War: the commissioned and non-commissioned officers of the      Royal Military Constabulary and the other military of that arm      as designated by Our afore-mentioned Ministers;      7.     the civil servants of the National Police Corps and the      municipal police, designated by Our Minister of Justice,   who      have been appointed within the regular framework and      classification of ranks to perform exclusively technical or      administrative tasks."        Article 12 of the Constitution provides:   <Translation>      "1.    Entering a home against the will of the occupant is only      allowed in cases prescribed by law, by those persons authorised      thereto by law.        2.     Apart from exceptions prescribed by law, prior      identification and information as to the purpose of entering are      required before entering in accordance with the previous      paragraph. The occupant shall be provided with a written report      on the entry."        Article 12 para. 1 of the Constitution implies that an occupant must clearly state that he or she objects to an entry by investigation officials for investigation purposes (Hoge Raad, 10 april 1979, Nederlandse Jurisprudentie 1979, nr. 483; and Hoge Raad, 19 februari 1985, Nederlandse Jurisprudentie 1985, nr. 691).        Where an occupant has no objections against an entry of his or her home by investigating officials for investigation purposes no written warrant is required.        Pursuant to Article 20 of the Act on Economic Offences, investigating officials have access to any place, insofar as this is reasonably required for the fulfilment of their duties. According to paragraph 2 of this provision, investigating officers shall only enter homes against the will of the occupant in cases of investigation of an economic offence and accompanied by a police commissioner or the local Mayor, or on the basis of a written warrant issued by the prosecution department.        According to Article 20 para. 3 of the Act on Economic Offences, formal minutes (proces-verbaal) of an entry and investigation of premises against the will of the occupant shall be made within 48 hours, which shall be communicated to the public prosecutor.        Under Article 21 of the Act on Economic Offences, investigating officials are competent to take samples of goods present on places, to which they have access under the terms of the Act on Economic Offences. If thereto requested, the holder of such goods is obliged to lend them the necessary assistance.        Article 28 para. 1 of the Act on Economic Offences provides for interim measures to be taken by the public prosecutor in cases where serious objections (ernstige bezwaren) against the accused have been raised and where the interests protected by the allegedly violated provision require immediate action.        An interim measure may consist of an order to refrain from certain acts (Article 28 para. 1.a) and of an order to ensure that certain specified goods, which are liable for seizure, are stored and kept at a specified place (Article 28 para. 1.b).        According to Article 99 of the Judicial Organisation Act an appeal in cassation is limited to points of law and procedural conformity.        Article 101a of the Judicial Organisation Act reads:   (Translation)      "If the Supreme Court considers that a complaint submitted cannot      lead to cassation and does not prompt a determination of legal      issues in the interest of legal unity and legal development, it      can limit itself to this finding when giving the reasons of its      decision on that point."     COMPLAINTS   1.    The applicant complains under Article 8 of the Convention that the AID officials entered and searched his premises in violation of Article 8 of the Convention in that this took place on the sole basis of Article 20 of the Act on Economic Offences without a prior judicial warrant and in the absence of any judicial authority.   2.    The applicant further complains under Article 8 of the Convention that the working methods applied by the AID officials in obtaining urine samples and the way in which these samples were subsequently handled was unlawful, in that this handling fell short of the requirements of Article 8 para. 2, in particular in that it was not in conformity with the EEC Council Directives 67/371 and 85/591, Article 4 of the EEC Council Directive 86/469 and the EEC Commission's decision 87/410, and in that no counter-samples were left in the hands of the applicant.   3.    The applicant complains under Article 6 of the Convention that the Supreme Court rejected part of his appeal in cassation, including an argument under Article 8 of the Convention, under Article 101a of the Judicial Organisation Act without giving further reasons.     THE LAW   1.    The applicant complains under Article 8 (Art. 8) of the Convention that the AID officials entered and searched his premises in violation of Article 8 (Art. 8) of the Convention.        Article 8 (Art. 8) of the Convention reads as follows:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission notes that this particular complaint, which concerns the entry and search of the applicant's premises as such, was not raised when the applicant introduced his application with the Commission by letter dated 11 December 1995, but was raised for the first time in the applicant's second letter to the Commission of 12 February 1996.        The complaints under Article 8 (Art. 8) of the Convention which the applicant initially submitted to the Commission in his letter of 11 December 1995   all concerned the alleged lack of adequate safeguards against tampering with sealed samples taken for investigation purposes and the allegedly unjust rejection by the Dutch courts of the arguments put forward by the defence as regards the applicability or interpretation of certain rules emanating from European Union institutions.        The question therefore arises whether the complaint on the compatibility with Article 8 (Art. 8) of the entry and search of the applicant's premises has been brought within the six months' time-limit referred to in Article 26 (Art. 26) of the Convention.        The Commission recalls that the question whether allegations submitted after the introduction of an application comply with the six months rule depends upon whether those allegations should be regarded as legal submissions in support of the original complaints or as fresh complaints (cf. No. 18660/91, Dec. 7.12.94, D.R. 79, p. 11).        The Commission further notes that in the domestic proceedings the applicant has not complained about the lawfulness of the entry and search, as such, by the AID officials. In particular, no complaint relating to the alleged absence of a prior authorisation or absence of any judicial officer at the time the AID officials entered the applicant's premises has been submitted to the national judicial authorities. Insofar as the applicant raised complaints under Article 8 (Art. 8) of the Convention, the Commission finds that they were all related to the working methods applied in obtaining samples and not to the legal basis for the AID officials' entry and search. The question therefore also arises whether in this respect the applicant has duly exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention (cf. No. 15669/89, Dec. 28.6.93, D.R. 75, p. 39).        However, the Commission does not find it necessary to determine these issues as this complaint is in any event manifestly ill-founded for the following reasons.        The Commission accepts that the entering of the applicant's premises by AID officials constitutes an interference with the applicant's rights under Article 8 para. 1 (Art. 8-1) of the Convention (cf. Eur. Court HR, Funke v. France judgment of 25 February 1993, Series A no. 256-A, p. 22, para. 48; and No. 15882/89, Dec. 29.3.93, D.R. 74, p. 48). The question thus arises whether this interference can be regarded as justified under Article 8 para. 2 (Art. 8-2) of the Convention.        The Commission recalls that the words "in accordance with the law" in Article 8 para. 2 (Art. 8-2) refer essentially to domestic law, which is primarily for the national authorities to apply and interpret, but also subject to a limited jurisdiction of the Convention institutions as to the manner in which this is done. The relevant domestic rules must further be sufficiently accessible and precise (cf. Eur. Court HR, Kruslin and Huvig v. France judgments of 24 April 1990, Series A nos. 176-A and B, pp. 20, 23, paras. 27, 33 and pp. 52, 55, paras. 26, 32 respectively; No. 17441/90, Dec. 4.9.92, D.R. 73, p. 201; No. 21482/93, Dec. 27.6.94, D.R. 78, p. 119 and No. 21207/93, Dec. 30.11.94, D.R. 79, p. 31).        The Commission notes that, in the Netherlands, the entry of private premises, against the will of the occupant, by investigating officials for the investigation of economic or other offences is subject to a number of clear conditions prescribed by statutory rules setting out the scope and procedures for the exercise of these powers.        The Commission does not find it established that these conditions were not respected in the present case. The Commission, therefore, accepts that the interference at issue was "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        The Commission further notes that the entry at issue occurred on the basis of suspicions of economic offences and, therefore, can be reasonably be regarded as necessary in a democratic society for the legitimate aim of prevention of crime or protection of health mentioned in paragraph 2 of Article 8 (Art. 8-2).        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains that the way in which the samples taken by the General Inspection Service were subsequently handled was contrary to Article 8 (Art. 8) of the Convention.        The Commission notes that this complaint does not concern the lawfulness of the entry and search carried out by AID officials on 16 December 1992, but is a complaint that the evidence taken by the AID officials on that occasion was not handled according to a procedure containing sufficient statutory guarantees against tampering as can be inferred from certain international regulations.        The Commission considers that the questions relating to the admissibility, reliability and credibility of evidence in criminal proceedings is to be considered under Article 6 (Art. 6) of the Convention as relating to the fairness of criminal proceedings (cf. Eur. Court HR, Delta v. France judgment of 19 December 1990, Series A no. 191). It is not a matter which falls within the scope of Article 8 (Art. 8) of the Convention, unless the way in which it has been taken affects private and family life, home or correspondence within the meaning of Article 8 (Art. 8) of the Convention. This complaint was, however, found to be manifestly ill-founded (see under 1).        The Commission does not find that the way in which the urine samples of cows on the applicant's premises were processed after they had been taken from the animals constituted an interference with the applicant's rights guaranteed by Article 8 (Art. 8) of the Convention.        The question whether or not the Dutch courts' findings in the present case as regards the applicability of certain national or international rules and the conformity of the facts at issue with these rules are correct is not a matter which the Commission can review under the terms of Article 19 (Art. 19) of the Convention.        It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains under Article 6 (Art. 6) of the Convention that the Supreme Court rejected part of his appeal in cassation under Article 101a of the Judicial Organisation Act without giving further reasons.        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 that Article 6 para. 1 (Art. 6-1) of the Convention obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument (cf. Eur. Court HR, Ruiz Torija v. Spain judgment of 9 December 1994, Series A no. 303-A, p. 12, para. 29; and Hiro Balani v. Spain judgment of 9 December 1994, Series A no. 303-B, p. 29, para. 27).        The Commission further recalls that when a State provides for an appeal to a Supreme Court, it may prescribe the conditions and procedure (cf. No. 12972/87, Dec. 9.11.87, D.R. 54 p. 207) and that Article 6 (Art. 6) of the Convention does not require that a decision whereby an appeal tribunal, basing itself on a specific legal provision, rejects an appeal as having no chance of success be accompanied by detailed reasons (cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240).        The Commission notes that the Supreme Court, referring to Article 101a of the Judicial Organisation Act authorising this procedure, rejected part of the applicant's complaints in cassation, which is limited to points of law, as not prompting a determination of legal issues in the interest of legal unity and legal development. The Commission has previously found that this procedure cannot be regarded as contrary to the requirements of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 30059/96, Dec. 26.2.97, unpublished). The Commission finds no reason to reach a different finding in the present case.        Insofar as the applicant can be understood as complaining under Article 6 (Art. 6) of the Convention about the way in which the evidence in his case was taken, the Commission recalls that it may examine how evidence has been adduced, but not how it has been assessed by the court, unless there has been gross unfairness or arbitrariness (cf. No. 22909/93, Dec. 6.9.95, D.R. 82, p. 25).        The Commission notes that in the present case, the Court of Appeal explicitly considered the submissions by the defence as regards the possibilities to tamper with the sealed samples taken on the applicant's premises, but on the basis of other means of evidence, concluded that it had not been established that the samples taken in the present case had in fact been tampered with.        The Commission cannot find that the conclusions of the Court of Appeal on this particular point can be regarded as grossly unfair or arbitrary.        Consequently, also noting that the applicant has been convicted following adversarial proceedings in which he has been given ample opportunity to state his case and to submit whatever he found relevant, the Commission cannot find that the proceedings at issue fell short of the requirements of Article 6 (Art. 6) of the Convention as to the fairness of criminal proceedings.        It follows that this part of the application is also 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