CASE OF K.D.B. v. THE NETHERLANDS
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
7. The applicant was born in 1959 and lives in Snelrewaard. He has a farm where he keeps cattle for slaughter. 8. On 15 November 1991 cattle on the applicant's farm was inspected by the General Inspection Service (Algemene inspectiedienst) of the Ministry of Agriculture, Nature Conservancy and Fisheries (Ministerie van Landbouw, Natuurbeheer en Visserij). Twelve cows were singled out to which the applicant was suspected of having administered the illegal substance clenbuterol. The same day the public prosecutor (officier van justitie) ordered an interim measure pursuant to section 28 of the Economic Offences Act (see paragraph 21 below) under which the applicant was restrained from removing the twelve cows from his premises without permission and from obstructing the identification of the cows. 9. After tests had borne out that clenbuterol had been administered to nine of the twelve cows, the General Inspection Service seized these nine cows on 3 December 1991 pursuant to section 18 of the Economic Offences Act (see paragraph 23 below). The applicant was given a receipt for these cows, which stated that an objection against the seizure could be lodged with the Utrecht Regional Court pursuant to Article 552a of the Code of Criminal Procedure (Wetboek van Strafvordering – see paragraph 24 below). It appears that the restrictions affecting the other three cows were lifted. 10. On 5 December 1991 the public prosecutor applied under Article 117 of the Code of Criminal Procedure (see paragraph 26 below) to the Utrecht Regional Court for permission to have the nine cows destroyed. The reasons given were that since they had been contaminated by an illegal substance, they would never again be marketable for human or animal consumption, and that moreover it was impracticable and costly to keep them for any length of time. 11. On 9 December 1991 the applicant applied for the interim measure ordered on 15 November (see paragraph 8 above) to be lifted. 12. The Regional Court held a hearing in camera on 10 December 1991. At that hearing the public prosecutor announced that the interim measure of 15 November would be withdrawn. It does not, however, appear that this had happened by the time the Regional Court gave its decision. 13. On 21 January 1992 the applicant again applied to the Regional Court for an order to have the interim measure lifted, or in the alternative to have the cows tested anew and to order the lifting of the interim measure if it was shown that the concentrations of clenbuterol did not exceed legal limits. A hearing was held in camera the same day. In his oral submissions the applicant's lawyer referred to EEC Council Directive 86/469 of 16 September 1986, which contained rules for testing cattle which had in his submission been disregarded in the present case. 14. On 4 February 1992 the Regional Court rejected the applicant's applications of 9 December 1991 and 21 January 1992. It held that the applicant had no legal interest in applying for the interim measure complained of to be lifted since the public prosecutor had already announced that this would be done. In the same decision it authorised the public prosecutor to have the cows destroyed, since it appeared from the case file that it was in any event unlikely that the cows would not eventually be declared forfeit (onttrokken aan het verkeer). 15. The cows were slaughtered shortly after the Regional Court's decision. 16. On 13 February 1992 the applicant, through his lawyer, lodged an appeal on points of law to the Supreme Court (Hoge Raad). The lawyer did not submit any grounds of appeal in writing. 17. On 24 December 1992 the Procurator-General of the Supreme Court submitted an advisory opinion to the effect that no grounds of appeal had been submitted and that there were no reasons for the Supreme Court to quash the decision appealed against ex officio. He appended to his opinion a copy of a preliminary ruling of the Court of Justice of the European Communities concerning the interpretation of EEC Council Directive 86/469. It appears that neither the applicant nor his lawyer received any notice of this until after the Supreme Court had given judgment. 18. On 1 March 1993 the applicant was notified by the Procurator-General that the Supreme Court had dismissed his appeal on 19 January. 19. The 1991 Ordinance on substances with a sympathomimetic effect (Verordening stoffen met sympathico mimetische werking) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle older than fourteen weeks. Section 3(1) of that Ordinance makes it illegal to have in stock, sell or purchase beef cattle to which such substances have been administered, and section 4(1) makes it illegal to have in stock, sell or purchase their meat. Clenbuterol is, moreover, an unregistered animal medicine the use or possession of which is prohibited by section 2 of the Animal Medicines Act (Diergeneesmiddelenwet). The offences here described are economic offences for the purposes of the Economic Offences Act (section 1 of that Act). 20. The Economic Offences Act lays down particular rules for the prosecution and punishment of economic offences. In so far as procedure is concerned, it is a lex specialis in relation to the Code of Criminal Procedure, the provisions of the latter remaining applicable in so far as the Economic Offences Act does not provide otherwise (section 25 of that Act). 21. Section 28(1) of the Economic Offences Act empowers the public prosecutor, until the beginning of the court hearing in the case, to order a person against whom a serious suspicion has arisen, by way of interim measure, to desist from particular actions or to keep or store particular goods in a particular place. 22. It is open to the person to whom such an order has been issued to apply to the trial court which is to deal with the case for the order to be lifted (section 28(3) of the Economic Offences Act). An appeal against a refusal lies to the Court of Appeal (section 30). A further appeal on points of law lies to the Supreme Court (section 30a). The accused is required to have a written statement of grounds of appeal submitted by a lawyer within one month of lodging the appeal, failing which his appeal will be declared inadmissible. The Supreme Court shall decide as soon as possible. It would appear that this procedure was not followed in the present case, since the appeal was not lodged with the Court of Appeal but directly with the Supreme Court. 23. Goods or objects which may help to establish the truth or the existence of illegal gains, or which may be declared forfeit, may be seized by officers invested with investigative competence (opsporingsambtenaren) (section 18(1) of the Economic Offences Act taken together with Article 94 of the Code of Criminal Procedure). 24. Interested parties may lodge a written complaint (schriftelijk zich beklagen) against such seizure with the trial court before which the case is pending (Article 552a § 1 of the Code of Criminal Procedure). The parties concerned have the right to be heard (Article 552a § 4). An appeal lies on points of law to the Supreme Court (Article 552d). It would appear that this was the procedure followed in the present case. 25. The accused has the right to submit written grounds of appeal within one month of lodging his appeal on points of law (Article 447 § 3 of the Code of Criminal Procedure), but his appeal is not automatically declared inadmissible if he does not. 26. If the said goods or objects cannot be stored, the trial court may authorise the public prosecutor to have them sold, destroyed, abandoned (prijsgegeven) or used for some purpose other than the criminal investigation (Article 117 of the Code of Criminal Procedure). No appeal lies against the trial court's decision (Article 445). If it emerges that it is appropriate to return seized goods to the owner but that this is impossible because the goods have been lawfully sold, destroyed or abandoned, then the interested party shall be paid compensation to an amount equivalent to the price for which the goods might reasonably have been sold (Article 119 § 2). 27. All matters which may arise in the course of criminal proceedings which are not required to be decided in open court are dealt with in camera (Article 21 § 1 of the Code of Criminal Procedure); matters so dealt with include interim measures under the Economic Offences Act and seizures. 28. In the case of appeals on points of law against a judgment delivered in open court (uitspraak) the accused is entitled to submit at the hearing grounds of appeal not filed at an earlier stage (Article 433 of the Code of Criminal Procedure). There is no equivalent provision for appeals on points of law against orders given in camera (beschikkingen). 29. The duties and position of the Procurator-General's department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). 30. The Procurator-General's department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutors of the regional and district courts (section 3(1) of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (sections 3(2), 5a and 6(1)). 31. The Procurator-General's department must be heard by the courts in so far as the law so prescribes (section 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.