Zegwaard and Zegwaard B.v. v. the Netherlands
Partly admissible; Partly inadmissible
Berörda konventionsartiklar
AS TO THE ADMISSIBILITY OF
Application No. 26493/95
by Willem ZEGWAARD and ZEGWAARD B.V.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 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 22 November 1994
by Willem ZEGWAARD and ZEGWAARD B.V. against the Netherlands and
registered on 13 February 1995 under file No. 26493/95;
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
29 January 1997 and the observations in reply submitted by the
applicants on 9 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, W. Zegwaard, is a Dutch citizen, born in
1944, and residing at Rijswijk. The applicant company, Zegwaard B.V.,
is a company with limited liability, established under Dutch law, which
has its registered seat in Delft. The first applicant is the managing
director of the applicant company and holder of all its shares. Before
the Commission the applicants are represented by Mr. C.J. van Bavel,
a lawyer practising in Utrecht.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
In April 1989 preliminary judicial investigations were initiated
into allegations of, inter alia, forgery and illegal dumping of
chemical waste perpetrated by the applicant company. On 11 April 1989
the house of the first applicant and the premises of the applicant
company were searched, and on 18 September 1990 the first applicant was
detained on remand. On 17 October 1990 he was released.
On 14 October 1991 the applicants were summoned to appear before
the Regional Court (Arrondissementsrechtbank) of The Hague on
25 November 1991. The first applicant was charged with the following
criminal offences:
1 participation in an organisation managed by him which intended
to commit the criminal offences of (i) forgery, (ii) fraud,
(iii) the deliberate dumping of chemical waste and (iv) the
deliberate dumping of polluted waste matter;
2 attempt to obtain a permit to dump waste matter under false
pretences committed by an organisation on his orders and/or
whilst he was in actual charge of this act;
3 obtaining of an unlawful advantage committed by an organisation
on his orders and/or whilst he was in actual charge of this act;
4 deliberate use of false or forged documents committed by an
organisation on his orders and/or whilst he was in actual charge
of this act;
5 forging of documents stating weights committed by an organisation
on his orders and/or whilst he was in actual charge of this act;
6 forging of invoices committed by an organisation on his orders
and/or whilst he was in actual charge of this act;
7 dumping of chemical waste committed by an organisation on his
orders and/or whilst he was in actual charge of this act; and
8 violation of the regulations laid down in the Surface Water
Pollution Act (Wet Verontreiniging Oppervlaktewateren) committed
by an organisation on his orders and/or whilst he was in actual
charge of this act.
The applicant company was charged with the following offences:
A. participation in an organisation which had the intention to
commit the criminal offences of (i) forgery of so-called border
documents and other documents, (ii) fraud, (iii) the deliberate
dumping of chemical waste and (iv) the deliberate dumping of
polluted waste matter;
B. attempt to obtain a permit to dump waste matter under false
pretences;
C. obtaining of an unlawful advantage;
D. deliberate use of false or forged documents;
E. forging of documents stating weights;
F. forging of invoices;
G. dumping of chemical waste; and
H. violation of the regulations laid down in the Surface Water
Pollution Act.
Public hearings took place on 26 November and 3 December 1991.
As regards the first applicant, the Regional Court on
17 December 1991 declared the indictment in respect of the charges
under 1 (i) and (iii) null and void, acquitted him of the other charges
under 1 and the charges under 3, 4, 6 and 7, and convicted him of the
charges under 2, 5 and 8. It sentenced the first applicant to a
partially suspended term of 24 months' imprisonment less the time spent
in pre-trial detention. The Regional Court furthermore imposed a fine
of 100,000 Dutch guilders on the first applicant.
As regards the second applicant, the Regional Court on the same
day declared the indictment in respect of the charges under A (i) as
regards forgery of other documents and (iii) null and void, acquitted
it of the other charges under A and the charges under C and G, and
convicted the applicant company of the charges under B, D, E, F and H.
The Regional Court imposed a fine of 600,000 Dutch guilders on the
applicant company and obliged it to pay the State 50,000 Dutch guilders
to deprive it of the estimated financial advantages it had obtained.
Both applicants and the Prosecutions Department filed an appeal
against the Regional Court's decisions with the Court of Appeal
(Gerechtshof) of The Hague.
Public hearings before the Court of Appeal were held on 15 and
16 February, 9 March and 19 April 1993.
On 3 May 1993 the Court of Appeal quashed the Regional Court's
judgments. In regard to the first applicant, the Court of Appeal
considered that only the offence of attempted fraud (2) had been
proved. Nevertheless, it sentenced the first applicant to 12 months'
imprisonment less the time spent in pre-trial detention. In this
respect the Court of Appeal held, inter alia:
<Original>
"Het hof heeft de op te leggen straf bepaald op grond van de
ernst van het feit en de omstandigheden waaronder dit is begaan
en op grond van de persoon en de persoonlijke omstandigheden van
de verdachte zoals daarvan is gebleken uit het onderzoek ter
terechtzitting.
Daarbij is in het bijzonder het volgende in aanmerking genomen.
De verdachte was binnen de Zegwaard-bedrijven niet alleen formeel
maar ook, mede gezien de zogenaamde platte organisatiestructuur
van de Zegwaard-bedrijven, materieel degene bij wie de
uiteindelijke beslissingsmacht en verantwoordelijkheid berustten.
Hij is voorts getypeerd als iemand die "zeer goed op de hoogte"
was van hetgeen zich binnen de bedrijven afspeelde. Het moge zijn
dat van de telastegelegde feiten maar één enkel feit bewezen is
verklaard, maar feit blijft niettemin dat uit het onderzoek ter
terechtzitting in hoger beroep naar voren is gekomen dat in de
telastegelegde perioden binnen de Zegwaard-bedrijven tal van
strafbare feiten - zoals oplichting van de dienst Gemeente
Reiniging Den Haag en die van Voorburg (LVZ), het opzettelijk
gebruikmaken van valse BNL-50 formulieren, het vervalsen dan wel
valselijk opmaken van weegbonnen en facturen en het zich in
strijd met de regels ontdoen van chemisch afval - heeft
plaatsgevonden. Dat dit kon gebeuren, valt de verdachte
- ongeacht het bepaalde in artikel 51 van het Wetboek van
Strafrecht - ten zeerste aan te rekenen en moet, gezien het feit
dat hij zich erop voorstond dat bij de Zegwaard-bedrijven alles
volgens de regels gebeurde, des te verwerpelijker worden
geoordeeld.
De verdachte had er kennelijk geen bezwaar tegen dat, zulks
uitsluitend ten bate van de Zegwaard-bedrijven en met voorbijgaan
van milieubelangen, door middel van misleiding van overheden
vergunningen c.q. ontheffingen werden verkregen. Een en ander
acht het hof dermate strafwaardig dat het zwakke en weinig alerte
beleid van die overheden alsook dat de milieuwetgeving zich als
chaotisch en gebrekkig doet kennen daarvoor nauwelijks als een
verzachtende omstandigheid kunnen gelden.
Het hof is van oordeel dat, gelet op de aard en ernst van het
bewezen feit en gelet op het vorenoverwogene, het opleggen van
een onvoorwaardelijke gevangenisstraf ... de enige passende
reactie vormt. Bij het bepalen van de strafmaat heeft het hof
mede rekening gehouden met mogelijk negatieve effecten van alle
publiciteit die de media sedert de huiszoekingen hebben gewijd
aan deze strafzaak."
<Translation>
"The Court has determined the sentence on the basis of the
severity of the criminal offence and the circumstances under
which it was committed, and on the basis of the personality and
the personal circumstances of the accused as these have emerged
from the hearings before the Court.
The Court has had particular regard to the following.
Within the Zegwaard group of companies the accused was the person
in charge, taking final decisions and bearing responsibility, not
only formally, but also in substance given the flat
organisational structure of the group. He has furthermore been
typified as a person who was "very well informed" of all matters
within the companies. It may be true that of the offences he was
charged with only one has been proved, but it has nevertheless
emerged from the hearings on appeal that in the period during
which the alleged offences took place a number of criminal
offences were committed within the Zegwaard group, such as
fraudulent acts in dealings with the municipal sanitation
departments of The Hague and Voorburg (LVZ), the deliberate use
of false border documents, the forging or false drawing up of
documents stating weights and of invoices, and the disposal of
chemical waste contrary to the regulations. The fact that these
offences were allowed to occur may, despite Section 51 of the
Criminal Code, to a large extent be attributed to the accused and
should, given that he prided himself on the fact that everything
at the Zegwaard group was done according to the rules, be deemed
all the more reprehensible.
The accused manifestly did not object to the fact that through
deception of the authorities permits and exemptions were
obtained, such only for the benefit of the Zegwaard group whereas
the interests of the environment were ignored. The Court
considers these facts worthy of punishment to such an extent that
neither the feeble and not very alert policy of those authorities
nor the chaotic and deficient appearance of the environmental
legislation, could serve as a mitigating circumstance.
The Court is of the opinion that, in view of the nature and
seriousness of the proved offence and of the considerations
above, the imposition of a non-suspended prison sentence ... is
the only fitting reaction. In the determination of this sentence
the Court has also had regard to the possible negative effects
of all the publicity which the media have devoted to this case
..."
In regard to the applicant company, the Court of Appeal declared
the indictment in respect of the charges under A (i) insofar as this
concerned the forgery of other documents, (iii) and (iv) and H null and
void and acquitted it of the remaining charges under A and the charges
under C and G. It convicted the applicant company of the charges under
B, D, E and F and imposed on it a fine of 600,000 Dutch guilders. In
this respect, it held, inter alia:
<Original>
"Het hof heeft de op te leggen straf bepaald op grond van de
ernst van de feiten en de omstandigheden waaronder zij zijn
begaan en op grond van de omstandigheden van de verdachte zoals
daarvan is gebleken uit het onderzoek ter terechtzitting.
Daarbij is in het bijzonder het volgende in aanmerking genomen.
De verdachte heeft zich meermalen schuldig gemaakt aan valsheid
in geschrift en het gebruikmaken van valselijk opgemaakte
geschriften; zij heeft zich voorts schuldig gemaakt aan een
poging tot oplichting. Het moge zo zijn dat de overige
telastegelegde feiten het niet tot een bewezenverklaring hebben
kunnen brengen, feit blijft dat uit het onderzoek ter
terechtzitting naar voren is gekomen dat zich bij Zegwaard B.V.
in de telastegelegde perioden tal van feiten hebben voorgedaan
die stuk voor stuk als strafbare feiten zijn aan te merken.
Zo heeft Zegwaard B.V. de Dienst Gemeente Reiniging van
's Gravenhage en die van Voorburg (LVZ) ertoe weten te bewegen
een ontheffing voor het storten van 100.000 ton huisvuil in
Mellery (België) te verkrijgen, welke ontheffing zij vervolgens
ten onrechte uitsluitend ten eigen bate heeft aangewend. Voorts
heeft Zegwaard B.V. zich in strijd met de regels veelvuldig
ontdaan van allerlei soorten chemisch afval, zulks terwijl zij
over geen enkele vergunning, ontheffing of deskundigheid terzake
beschikte. Kennelijk diende een en ander om de bestaande praktijk
te laten voortbestaan en stond men in werkelijkheid - anders dan
naar buiten toe werd voorgewend - onverschillig tegenover het
milieu, de milieuwetgeving en de daarvoor verantwoordelijke
overheden. Dat die wetgeving zich als chaotisch en gebrekkig doet
kennen en het door die overheden terzake gevoerde beleid zwak en
weinig alert kan worden genoemd, doet aan de ernstige
strafwaardigheid van voorgaande gedragingen niet af.
Het hof is, gelet op de ernst van de bewezen feiten en gelet op
het vooroverwogene, van oordeel dat, niettegenstaande de
omstandigheid dat het tot minder bewezenverklaarde feiten komt
dan waartoe de rechtbank is gekomen, toch een geldboete van
gelijke omvang dient te worden opgelegd.
Bij de vaststelling van de geldboete heeft het hof rekening
gehouden zowel met de draagkracht van de verdachte zoals deze uit
het onderzoek ter terechtzitting is gebleken, als met mogelijke
negatieve effecten van alle publiciteit die de media sedert de
huiszoekingen hebben gewijd aan deze strafzaak."
<Translation>
"The Court has determined the sentence on the basis of the
severity of the criminal offences and the circumstances under
which they were committed, and on the basis of the accused's
circumstances as these have emerged from the hearings before the
Court.
The Court has had particular regard to the following.
The accused has several times committed forgery and has
deliberately made use of documents falsely drawn up; it has also
attempted to commit fraud. It may be true that the other offences
[with which the accused was charged] have not been proved, but
it has nevertheless emerged from the hearings on appeal that in
the period during which the alleged offences took place a number
of facts have occurred at Zegwaard B.V., each of which may be
characterised as criminal offences.
Thus Zegwaard B.V. has managed to persuade the municipal
sanitation departments of The Hague and Voorburg (LVZ) to grant
an exemption enabling it to dump 100,000 tons of household refuse
in Mellery (Belgium), which exemption was subsequently wrongfully
used with the sole purpose of benefiting [Zegwaard B.V.] only.
Zegwaard B.V. has furthermore many times disposed of different
kinds of chemical waste contrary to the regulations and without
being in possession of any permit, exemption or professional
knowledge. All these actions were manifestly undertaken in order
to continue an existing practice, whereas in reality, contrary
to what was pretended towards the outside world, [Zegwaard B.V.]
was indifferent towards the environment, the environmental
legislation and the responsible authorities. The Court considers
these facts worthy of punishment to such an extent that neither
the feeble and not very alert policy of those authorities nor the
chaotic and deficient appearance of the environmental
legislation, could serve as a mitigating circumstance.
The Court is of the opinion, in view of the seriousness of the
proved offences and of the considerations above, and
notwithstanding the fact that it has found the accused guilty of
fewer offences than the Regional Court, that a fine of the same
amount should nevertheless be imposed.
In the determination of this fine the Court has had regard to the
accused's financial resources as these have appeared from the
hearings, as well as to the possible negative effects of all the
publicity which the media have devoted to this case ..."
The applicants and the Prosecutions Department both filed appeals
in cassation against the judgments of 3 May 1993 with the Supreme Court
(Hoge Raad). The applicants raised, inter alia, the following complaint
concerning the reasoning applied by the Court of Appeal in respect of
the determination of the sentences:
<Translation>
"...
2 The Court of Appeal was wrong to take account of criminal
offences which came to light during the hearings, since it has
not been determined that the applicants committed these offences
...
3 The offences to which the Court refers in this respect
concern offences in respect of which the indictment has been
declared null and void, whereas in respect of one offence - the
illegal dumping of chemical waste - the applicants have been
acquitted ..."
On 31 May 1994 the Supreme Court declared the appeals in
cassation of the Prosecutions Department inadmissible on the ground
that they had been lodged out of time, and rejected the applicants'
appeals in cassation. As regards the applicants' complaint of the
determination of the sentences, the Supreme Court considered that, in
general, a judge, when determining the sentence to be imposed, may take
account of facts and circumstances which have emerged at the hearing.
In respect of the first applicant, the Supreme Court held furthermore:
<Original>
"7.2. ... Weliswaar blijkt uit de processen-verbaal van de
terechtzittingen in hoger beroep niet dat de verdachte de
strafbare feiten heeft begaan die hem zijn telastegelegd doch ten
aanzien waarvan het Hof de inleidende dagvaarding nietig heeft
verklaard en die waarvan hij is vrijgesproken, doch het is niet
onbegrijpelijk dat het Hof uit het verhandelde ter
terechtzittingen, zoals blijkt uit de daarvan opgemaakte
processen-verbaal, heeft afgeleid dat binnen de
Zegwaard-bedrijven tal van strafbare feiten zijn begaan, zoals
die welke het Hof ... heeft vermeld. Voorts kon het Hof uit het
verhandelde ter terechtzittingen ... afleiden dat de
beslissingsmacht in en de verantwoordelijkheid over de
Zegwaard-bedrijven op de verdachte rustten.
7.3. Het Hof mocht een en ander in onderling verband beschouwen.
Door aldus te overwegen dat het de verdachte ten zeerste valt aan
te rekenen dat binnen de Zegwaard-bedrijven die strafbare feiten
werden gepleegd, heeft het Hof kennelijk en niet onbegrijpelijk
tot uitdrukking gebracht dat de verdachte, als degene die de
beslissingsmacht had binnen de Zegwaard-bedrijven, een
verantwoordelijke positie bekleedde en dat hij die
verantwoordelijke positie niet of onvoldoende heeft aangewend om
te voorkomen dat de door het Hof bedoelde strafbare feiten binnen
die bedrijven werden gepleegd. Het stond het Hof vrij deze op de
persoon van de verdachte betrekking hebbende omstandigheid in
aanmerking te nemen bij het bepalen van de op te leggen
straf. ..."
<Translation>
"7.2 ... It is true that it does not appear from the minutes of
the hearings on appeal that the accused committed the criminal
offences with which he had been charged but in respect of which
the Court of Appeal had declared the indictment null and void or
of which he had been acquitted. However, the fact that the Court
of Appeal deduced from what was debated at the hearings ... that
within the Zegwaard group a number of criminal offences have been
committed, such as those mentioned by the Court of Appeal ...,
is not inexplicable. The Court of Appeal was further able to
deduce from what was debated at the hearings ... that within the
Zegwaard group the power of decision and the responsibility for
the group lay with the accused.
7.3. The Court of Appeal was entitled to consider the above in
correlation. By holding that the commission of criminal offences
within the Zegwaard group was to a large extent attributable to
the accused, the Court of Appeal obviously and not inexplicably
stated that the accused, as the person entrusted with the power
to decide within the Zegwaard group, held a position of
responsibility and that he did not or not sufficiently exercise
this position of responsibility in order to prevent the criminal
offences indicated by the Court of Appeal from being committed
within these companies. The Court of Appeal was free to take
account of these circumstances which concern the person of the
accused when it determined the sentence to be imposed. ..."
The Supreme Court's judgment concerning the applicant company
contained phrases of a similar nature.
B. Relevant domestic law and practice
Article 51 of the Criminal Code (Wetboek van Strafrecht) provides
as follows:
<Original>
1 Strafbare feiten kunnen worden begaan door natuurlijke
personen en rechtspersonen.
2 Indien een strafbaar feit wordt begaan door een
rechtspersoon, kan de strafvervolging worden ingesteld en kunnen
de in de wet voorziene straffen en maatregelen, indien zij
daarvoor in aanmerking komen, worden uitgesproken:
1*. tegen die rechtspersoon, dan wel
2*. tegen hen die tot het feit opdracht hebben gegeven, alsmede
tegen hen die feitelijke leiding hebben gegeven aan de verboden
gedraging, dan wel
3*. tegen de onder 1* en 2* genoemden te zamen.
3 (...)
<Translation>
1 Offences may be committed by natural persons and legal
persons.
2 If an offence is committed by a legal person criminal
proceedings may be instituted and the punishments and other
measures provided for by law may be implemented where
appropriate:
1*. against the legal person, or alternatively,
2*. against the persons who ordered the commission of the
offence as well as the persons who were in actual charge of
the prohibited act, or alternatively,
3*. against the persons referred to under 1* and 2* together.
3 (...)
In its well-established case-law the Supreme Court further holds
that the court dealing with the facts may not impose a sentence which
exceeds the maximum sentence provided for in the relevant legal
provisions. However, when determining the sentence, there is no legal
impediment preventing the court from taking into account, to the
detriment of the accused, any aggravating circumstances which have
emerged from the trial.
According to Section 99 para. 1 (2) of the Judicial Organisation
Act (Wet op de Rechterlijke Organisatie) the Supreme Court may quash
judgments of lower courts if it finds that they are contrary to the
law. The Convention is part of Dutch law.
COMPLAINTS
The applicants complain that when it determined the sentences to
be imposed on them, the Court of Appeal took into account offences with
which the applicants had not been charged, of which they had been
acquitted, or in respect of which the indictment had been declared null
and void. In addition, the first applicant also complains that in the
sentence imposed on him he was held responsible for offences committed
by a legal entity, whereas he had been acquitted of the charges
accusing him of ordering and guiding the legal entity to commit these
offences.
The applicants furthermore complain that it was only at the stage
of sentencing that they were confronted with the fact that the Court
of Appeal took account of offences with which they had not been
charged, of which they had been acquitted or in respect of which the
indictment had been declared null and void. They had thus been unable
to react to this and, if necessary, provide evidence to the contrary.
The applicants claim not to have been able to challenge this state of
affairs before the Supreme Court, because the decision of the Court of
Appeal to take into account certain offences when determining the
sentences is closely related to the facts, whereas the Supreme Court
does not establish facts.
They invoke Article 6 paras. 1 and 2 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 November 1994 and registered
on 13 February 1995.
On 16 October 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
29 January 1997, after an extension of the time-limit fixed for that
purpose. The applicants replied on 9 April 1997, also after an
extension of the time-limit.
THE LAW
The applicants claim to have been victims of a breach of
Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention in that the
principle of presumption of innocence was violated and in that they
were unable adequately to challenge before the Supreme Court the taking
into account of offences of which they had not been found guilty in the
determination of the sentence imposed by the Court of Appeal.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law ..."
Article 6 para. 2 (Art. 6-2) of the Convention reads:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
1 The Government contend in the first place that the applicants
have failed to comply with the requirement laid down in Article 26
(Art. 26) of the Convention in that they did not bring the alleged
violation of Article 6 paras. 1 and 2 (Art. 6-1, 6-2) before the
Supreme Court.
The applicants argue that they did complain before the Supreme
Court that they had in effect been convicted of offences which had not
been proved. They further maintain that since the Supreme Court cannot
rule on the facts of a case, they were unable to exercise their defence
rights in respect of the offences which the Court of Appeal took into
account when determining the sentence to be imposed.
The Commission recalls that pursuant to Article 26 (Art. 26) of
the Convention it may only deal with a matter after all domestic
remedies have been exhausted according to the generally recognised
rules of international law. The mere fact that an applicant has
submitted his case to the competent courts does not in itself
constitute compliance with this rule. It is also required that any
complaint made before the Commission should have been raised at least
in substance, and thus without necessarily requiring a particular
reference to the Convention, during the proceedings concerned (cf. No.
11921/86, Dec. 12.10.88, D.R. 57, p. 81; No. 16278/90, Dec. 3.5.93,
D.R. 74, p. 93).
The Commission notes that the applicants did not raise their
complaint under Article 6 para. 1 (Art. 6-1) of the Convention, either
formally or in substance, during the proceedings before the Supreme
Court. However, it appears from Section 99 para. 1 (2) of the Judicial
Organisation Act and the fact that the Convention is part of Dutch law
that alleged violations of the Convention may be invoked in cassation
proceedings. The Commission considers that in these circumstances the
applicants, in order to exhaust domestic remedies, should and could
have complained to the Supreme Court that they had not been able to
exercise their defence rights in respect of the offences taken into
account by the Court of Appeal in the determination of their sentence.
It follows that this part of the application must be rejected
pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the
Convention.
As regards the complaint under Article 6 para. 2 (Art. 6-2) of
the Convention, the Commission notes that in the proceedings before the
Supreme Court the applicants complained that the Court of Appeal, when
determining their sentence, had taken into account criminal offences
which had come to light during the hearings. The Commission accepts
that the applicants thus basically complained that they were punished
for offences of which they had not been found guilty according to law.
In the Commission's view, this amounts to a complaint of a violation
of the principle of the presumption of innocence as laid down in
Article 6 para. 2 (Art. 6-2) of the Convention.
It is true that in their cassation memorial the applicants then
stated that the Court of Appeal had referred to offences in respect of
which the indictment had been declared null and void and to one offence
of which the applicants had been acquitted. They thus did not raise
expressis verbis the complaint that account had been taken of offences
with which they had not been charged. Nevertheless, the Commission
considers that for the purposes of Article 26 (Art. 26) of the
Convention in the present case it must be deemed sufficient for the
applicants to have complained in the domestic proceedings, as they did,
that in the determination of their sentence regard was had to offences
the commission of which had emerged from the hearings. Insofar as their
complaint under Article 6 para. 2 (Art. 6-2) is concerned, therefore,
the applicants must be considered to have satisfied the requirement of
exhaustion of domestic remedies.
2 As to the merits of the complaint under Article 6 para. 2
(Art. 6-2), the Government submit that the applicants were only
convicted of offences with which they had been charged. However, when
determining a penalty, a court is not obliged to confine itself to the
offences with which an accused has been charged, but it may also bear
in mind circumstances as long as these have been raised at the hearing
or are generally known. The Government point out that in the present
case the Court of Appeal thus also took into account, for example, the
possible negative effects on the applicants of the media attention
which the case had attracted. Moreover, in passing sentence, the Court
of Appeal had regard to aggravating and extenuating circumstances which
related to the case and the person and company concerned.
With regard to the first applicant, the Government argue that it
was established during the proceedings that numerous offences had been
committed within the Zegwaard companies. Although the Court of Appeal
explicitly did not conclude that these offences had been committed by
the first applicant, it was nevertheless able to deduce from what
emerged from the hearings that the power of decision and the
responsibilities for the Zegwaard companies had been his. By holding,
therefore, that the commission of these offences was to a large extent
attributable to the first applicant, the Court of Appeal was able to
conclude that although the first applicant was not criminally liable
these circumstances should nevertheless be taken into account in the
determination of the sentence to be passed.
Similarly, with regard to the applicant company, the Government
submit that the Court of Appeal concluded from what emerged at the
hearings that numerous activities had taken place within the Zegwaard
companies which could be considered to constitute criminal offences.
Again, the Court of Appeal did not find that the applicant company had
committed these offences itself, but it merely took into account all
kinds of facts relating to the circumstances.
According to the Government, the most important aspect of the
principle of presumption of innocence relates to the basis for
conviction. They argue in this respect that in the present case the
applicants were convicted on the basis of legally recognised evidence
submitted during the trial by the prosecuting authorities which the
applicants were given every opportunity to refute.
The applicants agree with the Government that a court may take
into account all conceivable facts and circumstances in passing
sentence provided that in doing so it does not violate the principle
of presumption of innocence. In their opinion, a court goes beyond what
can be accepted in this respect if, as in the present case, when
stating its reasons for imposing a particular sentence, it describes
as offences matters of which it has previously acquitted the accused,
in respect of which it had held the indictment to be null and void or
with which the accused had not been charged.
They further submit that the first applicant was acquitted of the
great majority of the offences with which he was charged precisely
because he could not be held responsible in legal terms as the person
actually in charge under Section 51 para. 2 of the Criminal Code. Yet
in the determination of the sentence the Court of Appeal nevertheless
held the first applicant responsible for these offences.
Having regard to the parties' submissions and the case-law of the
Convention organs, the Commission considers that this part of the
application raises complex questions of fact and law which require an
examination of the merits. The Commission concludes, therefore, that
this part of the application is not manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
grounds for declaring this part inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicants' complaint that the principle of presumption of
innocence was violated when the Court of Appeal in the
determination of the sentence took into account offences with
which they had not been charged, in respect of which the
indictment had been declared null and void or of which they had
been acquitted;
DECLARES INADMISSIBLE the remainder of the application.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber