EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 18465/91

Air Canada

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 30 November 1993)

TABLE OF CONTENTS

                                                                 Page

I.         INTRODUCTION

           (paras. 1 - 12)  . . . . . . . . . . . . . . . . . . . . 1

           A.    The application

                 (paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1

           B.    The proceedings

                 (paras. 5 - 7) . . . . . . . . . . . . . . . . . . 1

           C.    The present Report

                 (paras. 8 - 12)  . . . . . . . . . . . . . . . . . 2

II.        ESTABLISHMENT OF THE FACTS

           (paras.  13 - 26)  . . . . . . . . . . . . . . . . . . . 3

           A.    The particular circumstances of the case

                 (paras. 13 - 21) . . . . . . . . . . . . . . . . . 3

           B.    Background to the events at issue

                 (para. 22) . . . . . . . . . . . . . . . . . . . . 5

           C.    Relevant domestic law and practice

                 (paras. 23 - 26) . . . . . . . . . . . . . . . . . 7

                 a. Customs and Excise Management Act 1979. . . . . 7

                 b. Misuse of Drugs Act 1971. . . . . . . . . . . . 8

                 c. Domestic Case-law . . . . . . . . . . . . . . . 8

III.       OPINION OF THE COMMISSION

           (paras. 27 - 60) . . . . . . . . . . . . . . . . . . . .10

           A.    Complaints declared admissible

                 (para. 27) . . . . . . . . . . . . . . . . . . . .10

           B.    Points at issue

                 (para. 28) . . . . . . . . . . . . . . . . . . . .10

           C.    As to Article 1 of Protocol No. 1. . . . . . . . .10

                 (paras. 29 - 45)

                 Conclusion (para. 45). . . . . . . . . . . . . . .13

           D.    As to Article 6 of the Convention

                 (paras. 46 - 58) . . . . . . . . . . . . . . . . .14

                 Conclusion (para. 58). . . . . . . . . . . . . . .15

           E.    Recapitulation

                 (paras. 59 - 60) . . . . . . . . . . . . . . . . .16

DISSENTING OPINION of Mr. S. Trechsel, joined by Mrs. J. Liddy. . .17

DISSENTING OPINION of Mr. B. Marxer . . . . . . . . . . . . . . . .18

PARTLY DISSENTING OPINION of Mr. H. Danelius. . . . . . . . . . . .20

PARTLY DISSENTING OPINION of Mr. M. Pellonpää . . . . . . . . . . .21

APPENDIX I       : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .23

APPENDIX II      : DECISION ON THE ADMISSIBILITY. . . . . . . . . .24

I.INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant company is a corporation incorporated under

Canadian law.  It is a registered overseas company in the United

Kingdom with a registered office in Hounslow, Middlesex.  The applicant

company is represented before the Commission by

Messrs. Neil McGilchrist and David Johnston, solicitors, of

Messrs. Beaumont and Son, Solicitors, London.

3.    The application is directed against the United Kingdom whose

Government are represented by their Agent, Mrs. Audrey Glover, Foreign

and Commonwealth Office, London.

4.    The application concerns the seizure and forfeiture of an

aircraft belonging to the applicant company.  It raises issues under

Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1 to

the Convention.

B.    The proceedings

5.    The application was introduced on 2 May 1991 and registered on

8 July 1991.  On 8 January 1992, the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the complaint under Article 1 of Protocol No. 1.  On 7 December 1992

the Commission requested observations under Article 6 of the

Convention.

6.    Following exchanges of the parties' observations on 25 March and

22 May 1992, 15 July and 16 September 1992, 22 and 26 January 1993 a

hearing was held on 1 April 1993, at which the parties were represented

as follows:  for the Government:  Mrs. A. F. Glover, Foreign and

Commonwealth Office, Agent, Mr. D. Pannick, Q.C., Counsel,

Mrs. C. D. Hugill and Mr. I. Walton, HM Customs and Excise, Advisers;

for the applicant: Mr. D. B. Johnston, Solicitor, Messrs. Beaumont &

Son, Mr. R. Webb, Q.C., Counsel.  After the hearing, the application

was declared admissible.  The decision on admissibility is appended to

this Report.

      Further observations, in reply to questions from the Commission,

were submitted by the Government on 18 May and by the applicant company

on 20 May 1993.

7.    After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.  The present Report

8.    The present Report has been drawn up by the Commission pursuant

to Article 31 of the Convention and after deliberations and votes, the

following members being present:

              MM.C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 H. DANELIUS

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

9.    The text of the Report was adopted on 30 November 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 1 of the Convention.

10.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i)    to establish the facts, and

ii)   to state an opinion as to whether the facts found disclose a

      breach by the State concerned of its obligations under the

      Convention.

11.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

12.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    The particular circumstances of the case

13.   A Tristar aeroplane, worth over £60 million, and owned and

operated by the applicant company, landed at London Heathrow Airport

on 26 April 1987.  Its cargo included a container which, when

discharged and opened, was found to contain 331 kgs of cannabis resin,

of a "street value" of about £800,000.  The aeroplane was on a regular

scheduled flight starting in Singapore and travelling to Toronto,

landing en route at Bombay and Heathrow.  It carried both fare-paying

passengers and cargo.  Subsequently the aircraft made further

international flights which included return visits to the United

Kingdom.  On one of these subsequent visits, on 1 May 1987, officers

of the Commissioners of Customs and Excise ("the Commissioners"),

acting under powers conferred by Section 139 (1) of the Customs and

Excise Management Act 1979 ("the 1979 Act"), seized the aircraft as

liable to forfeiture under Section 141 (1) of the 1979 Act.  Later on

the same day the Commissioners, acting under powers contained in

Section 139 (5) and para. 16 of Schedule 3 of the 1979 Act, delivered

the aircraft back to the applicant company on payment by  it of

£50,000.

14.   On 20 May 1987 the applicant company's solicitors gave notice of

a claim challenging the Commissioners' assertion that the aircraft was

liable to forfeiture.   The Commissioners accordingly initiated

proceedings for condemnation by the court as required by para. 6 of

Schedule 3 to the 1979 Act.

15.   On 18 June 1988 an order was made on agreed terms that there

should be a determination of the following preliminary issues:

      "(1) Whether the facts (a) that cannabis resin was found in

      container ULD 6075AC and (b) that that container had been

      carried by Aircraft on Flight AC 859 on 26 April 1987 alone

      constitute 'use of aircraft for the carriage of a thing

      liable to forfeiture' within the meaning of Section 141

      (1)(a) of the Customs and Excise Management Act 1979 such

      as to justify its subsequent seizure on 1 May 1987.

      (2) Whether it is a defence to the plaintiffs' [the

      Commissioners'] claim in this action if the defendants [the

      applicant company] establish that they did not know that

      the aforesaid container contained cannabis resin and were

      not reckless in failing so to discover.

      (3) Whether it is a defence to the plaintiffs' claim in this

      action if the defendants established that they could not with

      reasonable diligence have discovered that cannabis had been

      secreted and hidden or was being carried in the container nor

      could they by the exercise of reasonable diligence have prevented

      its being secreted and hidden in the container.

      (4) Whether it is necessary for the plaintiffs to prove in

      this action:

           i. that the defendants knew or ought to have

           known that cannabis resin was on board the

           aircraft on 26 April 1987 and/or

           ii. that the aircraft was on other than a

           regular scheduled and legitimate flight."

16.   Mr. Justice Tucker gave judgment on 7 November 1988 on the

preliminary issues.  He did not accept that Parliament had intended the

Commissioners to have power to forfeit in a case where, unknown to the

operator, "and without any recklessness on his part, some evil-minded

persons smuggles contraband or prohibited goods aboard the aircraft.

It cannot sensibly be said that in such circumstances the aircraft 'has

been used for the carriage'."  He accordingly answered the preliminary

issues as follows:

      "1.  No.  Those facts alone do not constitute 'use of the

      aircraft for the carriage of a thing liable to forfeiture.'

      2.  Yes.  It is a defence.

      3.  Yes.  It is a defence.

      4.  It is necessary for the plaintiffs to prove in this

      action:

           (i) that the defendants knew or ought to have

           known that cannabis resin was on board the

           aircraft on 26 April 1987;  or (but not and)

           (ii) that the aircraft was on other than a

           regular scheduled and legitimate flight."

17.   The Commissioners appealed to the Court of Appeal, which gave its

judgment on 14 June 1990.

18.   Lord Justice Purchas, giving the first judgment, summarised the

arguments and considered the authorities and found:

      "The wording of Section 141 is, in my view, clear and

      unambiguous and does not permit of any implication or

      construction so as to import an element equivalent to mens

      rea [criminal intent] nor does it involve in any way any

      person in the widest sense whether as user, proprietor or

      owner but depends solely on 'the thing' being used in the

      commission of the offence which rendered the goods liable

      to forfeiture. ... In my judgment the mitigating provisions

      included in Section 152 and para. 16 of Schedule 3,

      indicate clearly that Parliament intended to trust to the

      Commissioners the exercise of these matters of discretion.

      Apart from this the exercise of this discretion will be

      readily open to review by the court under R.S.C. Order 53.

      This is a remedy which has developed very considerably in

      recent years and was not so available at the time when the

      earlier authorities were decided.  I would only comment

      that there may well be a case to exclude inter-continental

      or large passenger jet aeroplanes flying on scheduled

      flights from Section 141 (1) in the same way as vessels

      over a certain size have been excluded and to provide for

      them in Section 142. ...

      The expression 'which has been used for the carriage of the

      thing so liable to forfeiture' is perfectly

      straightforward.  To attempt to distinguish in some way the

      carriage of the article in question on a scheduled flight

      as opposed to a specially commissioned flight raises a

      totally illogical distinction and flies in the face of the

      ordinary meaning of the words in the section."

19.   Lord Justice Balcombe and Sir David Croom-Johnson, agreeing with

Lord Justice Purchas, gave separate judgments.

20.   The questions for consideration on the preliminary issue were

accordingly answered as follows:

      1.  Yes.

      2.  No.

      3.  No.

      4.  No.

21.   Leave to appeal to the House of Lords was refused by the Court

of Appeal, and on 7 November 1990 the House of Lords also refused to

grant leave to appeal.

B.    The background to the events at issue

22.   On 15 July 1992, in the course of the proceedings before the

Commission, the respondent Government submitted further observations

which included details of matters which had given rise to concern about

Air Canada's procedures at Heathrow Airport in the period before the

seizure of the aircraft in the present case.  These observations

provided inter alia as follows:

"(1)  Between November 1983 and September 1984, there was a history of

      misdeliveries of consignments by Air Canada Transit Shed when Air

      Canada were not in possession of Customs' authority to release

      goods.  In each case, the goods were checked into the shed by Air

      Canada staff and the goods subsequently disappeared.  These

      deliveries concerned 2 packages (72 kgs) of 'Handicraft' in

      November 1983, 15 packages (995 kgs) of 'Artificial Jewellery'

      in May 1984, and 22 packages (924 kgs) of 'Handicraft' in

      September 1984.  Each of these consignments is believed to have

      contained drugs.

(2)   In March 1986, a consignment arrived from India (New Delhi)

      consisting of 30 packages (1222 kgs) described as 'cotton

      powerloom bed sheets' and addressed to Holiday Inns, Montreal,

      Canada.  It was examined and found to contain 809 kgs of cannabis

      resin.  Enquiries by Customs and Excise established that the

      consignment had not been ordered, and would not have been sent

      on to Canada.

(3)   On 24 May 1986, a consignment on an air waybill arrived from

      Thailand (Bangkok) consisting of 15 packages (480 kgs), described

      as machine parts and addressed to Düsseldorf (West Germany) in

      transit.  Air Canada staff moved it landside.  It was taken out

      of the controlled area.  It was later intercepted and was found

      to contain 300 kgs of cannabis resin.  Two Air Canada staff were

      arrested, charged and convicted (amongst other defendants) of the

      fraudulent evasion of the prohibition on importation of a

      controlled drug contrary to section 170 of the Customs and Excise

      Management Act 1979.  The two members of the Air Canada staff

      were sentenced to 8 and 10 years' imprisonment respectively.

(4)   On 11 June 1986, Customs and Excise wrote to Air Canada's Cargo

      Terminal Manager setting out their dissatisfaction concerning the

      smuggling of large quantities of dangerous drugs with the

      assistance of Air Canada staff misusing procedures...

(5)   On 18 June 1986, the Cargo Terminal Manager replied, promising

      to improve performance...

(6)   On 15 December 1986, Customs and Excise wrote to all airline

      operators at Heathrow and Gatwick warning them that

           'The Commissioners of Customs and Excise are seriously

           concerned that drugs may be imported into the United

           Kingdom concealed in the structure of aircraft or in

           baggage or pseudo freight illicitly put into aircraft holds

           in the guise of bona fide baggage or freight'.

      [A copy of the letter of 15 December 1986 was included with the

      Government's observations.  It stated that where an aircraft:

           '(ii) is used for the carriage, handling, deposit or

           concealment of anything liable to forfeiture,

           the Commissioners will consider exercising their powers

           under the law, including the seizure and forfeiture of

           aircraft or the imposition of monetary penalties in lieu of

           such forfeiture'.]

(7)   On 31 December 1986, Customs and Excise wrote again to Air

      Canada, stating that breaches of procedure prior to the

      11 June 1986 letter had led the Commissioners to conclude that

      £2000 should be deducted from the Air Canada bond pursuant to

      Section 152 of the Customs and Excise Management Act 1979 in lieu

      of putting Air Canada's bond into suit in accordance with

      Section 131 of the 1979 Act.

(8)   Also between November 1986 and January 1987, a consignment of

      39 boxes of gas operated cigarette lighters was removed from the

      Air Canada Transit Shed without proper authority.  Air Canada

      failed to inform Customs and Excise of this for a considerable

      time.  £5000 was deducted from the Air Canada bond pursuant to

      section 152 of the Customs and Excise Management Act 1979 in lieu

      of putting Air Canada's bond into suit in accordance with

      Section 131 of the 1979 Act.

(9)   At the time of the arrival of the aircraft which is the subject

      of these proceedings (26 April 1987), Air Canada had not yet

      implemented increased security, adequately or at all.

      Furthermore, it was ascertained that in relation to the container

      which held the 331 kgs of cannabis resin, the airway bill number

      was false, the Air Canada world-wide cargo computer did not hold

      any details of the consignment, no airway bill was drawn up and

      despatched in respect of the consignment, and the consignment was

      hidden away and could have contained an explosive device."

C.    Relevant domestic law and practice

      a.   Customs and Excise Management Act 1979

23.   Section 139 (1)

      "(1) Any thing liable to forfeiture under the customs and excise

      Acts may be seized or detained by any officer or constable or any

      member of Her Majesty's armed forces ..."

      Section 1 of the 1979 Act defines "officer" as meaning "a person

      commissioned by the Commissioners".

      Section 139 (5)

      "Subject to Sub-sections (3) and (4) and to Schedule 3 to

      the Act any thing seized or detained under the customs and

      excise Acts shall, pending the determination as to its

      forfeiture or disposal, be dealt with and if condemned or

      deemed to have been condemned or forfeited, shall be

      disposed of in such manner as the Commissioners may

      direct."

      Section 141 (1)

      "...where any thing has become liable to forfeiture under

      the customs and excise Acts -

           (a) any ship, aircraft, vehicle, animal,

           container (including any article of passengers'

           baggage) or other thing whatsoever which has

           been used for the carriage, handling, deposit or

           concealment of the thing so liable to

           forfeiture, either at a time when it was so

           liable or for the purposes of the commission of

           the offence for which it later became so liable;

           ... shall also be liable to forfeiture."

      Section 142 (1)

      "Notwithstanding any other provision of the Customs and Excise

      Acts 1979, a ship of 250 or more tons register shall not be

      liable to forfeiture under or by virtue of any provision of the

      Customs and Excise Acts 1979, unless the offence in respect of

      or in connection with which the forfeiture is claimed -

           (a) was substantially the object of the voyage

           during which the offence was committed;  or

           (b) was committed while the ship was under chase

           by a vessel in the service of Her Majesty after

           failing to bring to when properly summoned to do

           so by that vessel."

      Section 152

      "The Commissioners may, as they see fit -

           (a) stay, sist or compound any proceedings for

           an offence or for the condemnation of any thing

           as being forfeited under the customs and excise

           Acts;  or

           (b) restore, subject to such conditions (if any)

           as they think proper, any thing forfeited or

           seized under those Acts;  or

           (c) after judgment mitigate or remit any

           pecuniary penalty imposed under those Acts;

           ..."

      Schedule 3, para. 6

      "Where notice of claim in respect of any thing is duly given in

      accordance with [paragraph 5] the Commissioners shall take

      proceedings for the condemnation of that thing by the court, and

      if the court finds that the thing was at the time of seizure

      liable to forfeiture the court shall condemn it as forfeited."

      Schedule 3, para. 16

      "Where any thing has been seized as liable to forfeiture

      the Commissioners may at any time if they see fit and

      notwithstanding that the thing has not yet been condemned,

      or is not yet deemed to have been condemned, as forfeited -

           (a) deliver it up to any claimant upon his

           paying to the Commissioners such sum as they

           think proper, being a sum not exceeding that

           which in their opinion represents the value of

           the thing, including any duty or tax chargeable

           thereon which has not been paid; ..."

      b.   Misuse of Drugs Act 1971

24.   Section 3(1)

      "Subject to subsection (2) below ... the importation of a

      controlled drug ... [is] hereby prohibited."

      Subsection (2) is not applicable in the present case.  Cannabis

and cannabis resin are both controlled drugs by virtue of Section 2 of

the Misuse of Drugs Act 1971.

      c.   Domestic Case-law

25.   Judicial review proceedings in respect of decisions of the

Commissioners under Section 152 have been brought in two cases.  In R.

v. Commissioners of Customs and Excise ex parte Haworth (judgment of

17 July 1985) the applicant's yacht had been seized as liable to

forfeiture.  He asked the Commissioners to exercise their discretion

under Section 152 and return the yacht.  The High Court, after

considering correspondence between the applicant and the authorities

and describing the Commissioners' powers as "astonishing", found that

the Commissioners had not properly exercised their discretion in that

they had not given Mr. Haworth the opportunity to reply to matters held

against him.  The decision did not affect the seizure of his yacht.

26.   In R. v. Commissioners of Customs and Excise ex parte Tsahl

(judgment of 11 December 1989) the Commissioners had decided to return

diamonds which had been seized on payment of £228,190.  The High Court

was prepared to interfere with the Commissioners' discretion only to

the extent of requiring the Commissioners to take as date of valuation

of the diamonds (for the purpose of determining the amount of the

payment for their return) the date of return rather than the date of

import.

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

27.   The Commission has declared admissible the applicant company's

complaints -

-     that the seizure of the aircraft in the present case, and its

      subsequent return on conditions, violated its right to peaceful

      enjoyment of its possessions as guaranteed by Article 1 of

      Protocol No. 1 (P1-1) ; and

-     that the proceedings involved did not comply with the

      requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

B.    Points at issue

28.   The issues to be determined are -

-     whether there has been a violation of Article 1 to Protocol No. 1

      (P1-1) of the Convention;

-     whether there has been a violation of Article 6 para. 1

      (Art. 6-1) of the Convention.

C.    As to Article 1 of Protocol No. 1 to the Convention

29.    Article 1 of Protocol No. 1 (P1-1) of the Convention provides

as follows:

      "Every natural or legal person is entitled to the peaceful

      enjoyment of his possessions.  No one shall be deprived of his

      possessions except in the public interest and subject to the

      conditions provided for by law and by the general principles of

      international law.

      The preceding provisions shall not, however, in any way impair

      the right of a State to enforce such laws as it deems necessary

      to control the use of property in accordance with the general

      interest or to secure the payment of taxes or other contributions

      or penalties."

      The Commission recalls that Article 1 of Protocol No. 1 (P1-1)

in substance guarantees the right to property (see Eur. Court H.R.,

Agosi judgment of 24 October 1986 [hereinafter "Agosi judgment"],

Series A no. 108, p. 17, para. 48 with further references).  It

comprises three distinct rules:  the first rule, set out in the first

sentence of the first paragraph, is of a general nature and enunciates

the principle of the peaceful enjoyment of property;  the second rule,

contained in the second sentence of the first paragraph, covers

deprivation of possessions and subjects it to certain conditions;  the

third rule, stated in the second paragraph, recognises that the

Contracting States are entitled, amongst other things, to control the

use of property in accordance with the general interest (see, inter

alia, the Sporrong and Lönnroth judgment of 23 September 1982, Series A

no. 52, p. 24, para. 62).  However, the three rules are not "distinct"

in the sense of being unconnected;  the second and third rules are

concerned with particular instances of interference with the right to

peaceful enjoyment of property and should therefore be construed in the

light of the general principle enunciated in the first rule (see, Eur.

Court H.R., Lithgow and Others judgment of 8 July 1986, Series A

no. 102, p. 46, para. 106).

30.   The present case concerns not merely one set of events, but two

interrelated sets of action.  First, there was the seizure of the

applicant company's aircraft and the subsequent finding, in the

condemnation proceedings, that it was liable to forfeiture.  Secondly,

there was the decision by the Commissioners to return the aircraft to

the applicant company on payment of £50,000.  To that extent the case

resembles the case of Agosi, in which there was also a seizure and a

decision by the Commissioners in the exercise of a statutory

discretion.  This case is, however, not comparable with the Agosi case

in all respects.  In the first place, the gold coins which were seized

in that case were the goods whose importation was prohibited under

domestic law.  There is no question in the present case of the aircraft

itself being in any way "prohibited": it was seized pursuant to a

statutory power to forfeit goods used for the carriage of, inter alia,

cannabis.  Secondly, the Commissioners in Agosi refused to return the

coins at issue, and did not impose any conditions for their return.

The Commissioners in the instant case immediately stated that the

aircraft would be returned on payment of £50,000, pursuant to their

statutory discretion under Section 152 (b) of the 1979 Act to "restore,

subject to such conditions (if any) as they think proper, any thing

forfeited or seized under those Acts".

31.   The applicant company underlines that the allegations concerning

security arrangements above (para. 22) were raised for the first time

in the proceedings before the Commission, and they deny each and every

one.  They point out that the domestic courts heard argument on the

agreed basis that no fault lay with Air Canada, and that judicial

review could in any event not have remedied the position.  The

applicant company sees a violation of the Convention in the very width

of the powers given to the Commissioners and exercised in the present

case.  It sees no proportionality between the agreed assumptions, or

any actual fact, and the seizure of the aircraft or the required

payment of £50,000.

32.   The Government submit that the applicant company had been lax in

its security arrangements in the past (particularly in relation to the

illegal importation of drugs), and that since the events of the present

case there have been no complaints about the company.  They point to

the importance of the fight against the importation of dangerous drugs,

and consider that the requirement that the applicant company pay

£50,000 for return of its aircraft struck a fair balance between the

interests of the company and the general interest.  They point out that

the Commissioners only seize and set conditions on return of goods

seized where they consider this is appropriate to encourage the

adoption of higher security standards by the company concerned.  The

Commissioners' specific concerns in the present case included the

applicant company's record in security matters, the fact that the

aircraft had come from Bombay, and the quantity of the drugs seized.

33.   The Commission must determine whether the material provision in

the present case is the second sentence of the first paragraph of

Article 1 of Protocol No. 1 (P1-1) or the second paragraph.

34.   The prohibition on the importation of cannabis resin in

Section 3(1) of the Misuse of Drugs Act 1971 constitutes a control of

the use of that substance.  The statutory powers of seizure, forfeiture

and return (subject, possibly, to conditions) used in the present case

must also be considered to be aimed at controlling the use of any

"ship, aircraft, vehicle, animal, container ... or other thing

whatsoever which has been used for the carriage ... of [prohibited

drugs]" (Section 141 (1) of the 1979 Act).

35.   It is therefore the second paragraph of Article 1 (P1-1-2) which

is applicable in the present case.

36.   The second paragraph of Article 1 (P1-1-2) recognises the right

of a State "to enforce such laws as it deems necessary to control the

use of property in accordance with the general interest or to secure

the payment of taxes or other contributions or penalties".  It has not

been suggested in the present case that the seizure and return of the

aircraft on payment of £50,000 was to secure the payment of a tax or

other contribution or penalty.

37.   The Commission must however consider whether the control of use

in the present case was in itself compatible with the terms of this

provision and, if so, it must establish whether there existed a

reasonable relationship of proportionality between the means employed

and the aim sought to be realised (Agosi judgment, p. 18, para. 52).

38.   In the Agosi case the Court in examining proportionality had

regard to the procedural remedies available.  In this case the remedies

were two.  First there was a challenge to the legality of the seizure.

That avenue was unsuccessfully taken by the applicant company, the

Court of Appeal ruling that whether the company was at fault was

irrelevant.  Secondly there was the possibility of seeking judicial

review of the Commissioners' decision to impose a condition of payment

of £50,000 for the return of the aircraft.  This course the applicant

company did not take.  Having regard to the finding of the Court of

Appeal that the seizure of the aircraft as liable to forfeiture was

lawful, the width of the Commissioners' discretion, the fact that

£50,000 was only a small fraction of the aircraft's value, and indeed

of the "street value" of the illegally imported cannabis resin, and

that there had been criticisms of the applicant company's security, it

is unlikely that such an application would have succeeded.  Nonetheless

the existence of the remedy is an element to be taken into account in

examining proportionality.

39.   The Commission notes that the powers to seize and forfeit goods

which applied in the present case are remarkably broad.  In particular,

it seems more than surprising that the innocent owner of a large

aircraft should risk losing it if, as the applicant company's

representative expressed the point before the Commission, one passenger

on a scheduled flight should exceed the permitted allowance of duty-

free spirits by one bottle.  The Commission must, however, look at all

the facts of the case.  Although the Court of Appeal found that the

liability to forfeiture was absolute, the applicant company is not in

the position of having been deprived of the use of a valuable asset for

any considerable time at all.  The "loss" to the applicant company was

in fact limited to the payment of £50,000 required by the

Commissioners.  A control of the use of aircraft in connection with the

transport of prohibited goods cannot as such be seen as incompatible

with the terms of the second paragraph of Article 1 (P1-1-2).

40.   As to the relationship of proportionality between the means

employed and the aim sought to be pursued, here too the Commission must

look at all the circumstances of the case.  In this context, the

allegations referred to by the Government and relating to Air Canada's

allegedly inadequate security arrangements must be considered.  The

Commission is not in a position to assess the accuracy of the

allegations, but accepts that these matters were in the minds of the

Commissioners in seizing and returning the aircraft.

41.   Further, the Commission must consider the question of

proportionality not on the basis of the seizure and subsequent

condemnation of the aircraft, but on the basis of a payment of £50,000

for its return.  The applicant company has not given any indication of

any particular hardship incurred in making the payment, save for

administrative problems in producing a banker's draft swiftly, and the

Commission finds none.  It is submitted by the Government that since

the events in question there have been no further security problems

with Air Canada.

42.   The Commission notes that it has not been contended by the

Government that the applicant company was given reasons for the seizure

of the aircraft on 1 May 1987, nor that any reasons were furnished for

the imposition of the requirement of £50,000 for return of the

aircraft.  Moreover, the Government do not contest that the reasons

which the Commissioners of Customs and Excise had in mind were first

put to the applicant company in the course of the present proceedings.

The Government do, however, consider that questions of Air Canada's

behaviour could have been raised on an application for judicial review

of the Commissioners' exercise of their discretion to return the

aircraft subject to conditions.

43.   The Commission finds that, although the seizure and retention of

a valuable aircraft without the giving of reasons could raise grave

problems of proportionality under Article 1 of Protocol No. 1

(P1-1) of the Convention, the present case relates rather to a payment

of £50,000 being required for the return of the aircraft.  Although it

is true that reasons were only given for the seizure and immediate

return in the course of the present proceedings, it is apparent from

the papers before the Commission that Air Canada had been put on notice

that its security arrangements were regarded as not having been

sufficient.  Whether those specific allegations are true is not for the

Commission to decide.

44.   Finally, the Commission regards the requirement to pay £50,000

in the present case as a normal incident of the exercise of regulatory

powers which generally accompany international air traffic.  Whilst the

applicant company was not given reasons for the seizure and return at

the time, if that were its chief concern then judicial review may well

have helped to elucidate matters.  It states, however, that it is

principally concerned with the fact of the seizure of the aircraft and

the required payment of the money.  In the light of the reasons which

have now been furnished by the respondent Government for the

Commissioners' actions, and bearing in mind the limited nature of the

prejudice to Air Canada and the margin of appreciation accorded to

Governments under this head of Article 1 of Protocol No. 1 (P1-1), the

Commission finds that the requirement to pay £50,000 for return of the

aircraft which had been seized on 1 May 1987 was proportionate to the

aim of controlling the use of aircraft involved in the importation of

prohibited drugs.

Conclusion

45.   The Commission concludes by nine votes to five that there has

been no violation of Article 1 of Protocol No. 1 (P1-1) to the

Convention.

D.    As to Article 6 (Art. 6) of the Convention

46.   Article 6 para. 1 (Art. 6-1), first sentence, of the Convention

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

      and public hearing within a reasonable time by an independent and

      impartial tribunal established by law."

47.   The applicant company considers that it has had a penalty imposed

on it by the State, that the penalty was intended to punish and that

it was criminal in nature.  It sees the Customs Commissioners as

prosecutor and judge in the case, and neither the condemnation

proceedings nor the theoretical possibility of judicial review could

remedy the position.  They consider that the presumption of innocence

was not respected in that the penalty had to be paid before any form

of excuse could be offered, quite apart from questions of guilt or

innocence being considered.

48.   The Government submit that the facts in the present case do not

indicate the determination of a criminal charge within the meaning of

the provision, such that the procedural guarantees do not apply.

49.   The Commission has recently confirmed, in a case concerning a

confiscation order, that such measures do not determine criminal

charges within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention (Raimondo v. Italy, Comm. Report 21.10.92 [pending before

the European Court of Human Rights]).  Further, the Court, in the Agosi

case, found that neither the condemnation proceedings which were at

issue in that case, nor the judicial review proceedings which Agosi did

not initiate, were concerned with the "determination of a criminal

charge".

50.   In the present case, the applicant company was the object of

proceedings which led to the condemnation of its aircraft as forfeited.

Those proceedings established precisely that no element of fault needed

to attach to the applicant company for the aircraft to be liable to

forfeiture.  The condition of payment of £50,000 for return of the

aircraft must be seen as a measure limiting the harm caused to the

applicant company, and not as a separate "measure" or "penalty" for

specific behaviour which has given rise to a "charge" (cf. Société

Stenuit v. France, Comm. Rep. 30.5.91., Eur. Court H.R., Series A

no. 232, p. 12, para. 57).

51.   The Commission thus finds that the proceedings involved in the

present case did not imply the "determination of any criminal charge".

52.   The applicant company also alleges a violation of Article 6

(Art. 6) of the Convention in the determination of its civil rights.

53.   According to the Court's case-law, Article 6 (Art. 6) is

applicable to any action whose subject-matter is "pecuniary" in nature

and founded on "an alleged infringement of rights which were likewise

pecuniary rights" (Eur. Court H.R., Editions Périscope judgment of

26 March 1992, Series A no. 234-B, p. 66, para. 40, which ruling

establishes as a criterion for assessing the applicability of Article 6

(Art. 6) the substance of the rights at issue rather than their legal

classification in domestic law).  Accordingly, the Commission finds

that the proceedings in the present case determined the applicant

company's "civil rights".

54.    The applicant company considers that the customs officer who

seized the aircraft was neither independent, impartial nor a tribunal.

It considers that the statutory rights of appeal to a court were

inappropriate and that the remedy of judicial review was not adequate

to remedy the injustice in the light of the width of discretion given

to the Customs by the statute and the discretionary nature of judicial

review itself.  The respondent Government refer to the case of

Vilvarajah and others (Eur. Court H.R., judgment of 30 October 1991,

Series A no. 215) to support their contention that Article 6 (Art. 6)

of the Convention is satisfied by the possibility of judicial review.

55.   The Commission notes first, that the case of Vilvarajah, referred

to by the Government, concerns the scope of judicial review for the

purposes of Article 13 (Art. 13) of the Convention, and that in that

case, the domestic authorities had been at pains to underline that the

scope of review in cases concerning asylum was particularly broad (Eur.

Court H.R., aforementioned Vilvarajah and others judgment, pp. 10, 39,

paras. 91, 125).

56.   The Commission next recalls that it is the function of Article 6

(Art. 6) of the Convention to secure procedural rights in connection

with the determination of civil rights and obligations.  It does not

in itself guarantee any particular content for these rights and

obligations (see, for example, Eur. Court H.R., W. v. the United

Kingdom judgment of 8 July 1987, Series A no. 121, p. 32, para. 73 with

further references).  The issues before the High Court and the Court

of Appeal were undoubtedly severely circumscribed by the questions

before those courts and, indeed, by the strict wording of the statute.

Such matters, however, relate to the content of the rights and

obligations.  The applicant company has not pointed to any matters

which could amount to a possible violation of Article 6 (Art. 6) of the

Convention in connection with the condemnation proceedings.

57.   The applicant company also complains that the scope of judicial

review was not sufficient to guarantee the access to a court required

by Article 6 (Art. 6) of the Convention in respect of the conditions

imposed for return of the aircraft.  The applicant company did not in

the event make an application for judicial review of the Commissioners'

decision to return the aircraft seized on payment of £50,000.  Given

the uncertainty concerning the scope of review afforded by judicial

review, and whether it complies with Article 6 (Art. 6) of the

Convention in a particular case, the Commission is unable, in the

absence of such an application, to ascertain whether the possibility

of such review complies with Article 6 (Art. 6) in a given case.

Conclusion

58.   The Commission concludes by eight votes to six that there has

been no violation of Article 6 (Art. 6) of the Convention.

E.    Recapitulation

59.   The Commission concludes by nine votes to five that there has

been no violation of Article 1 of Protocol No. 1 (P1-1) to the

Convention (para. 45).

60.   The Commission concludes by eight votes to six that there has

been no violation of Article 6 (Art. 6) of the Convention (para. 58).

Secretary to the Commission             President of the Commission

       (H.C. KRÜGER)                           (C.A. NØRGAARD)

                                                           (Or. Eng.)

    DISSENTING OPINION OF MR. S. TRECHSEL, joined by Mrs. J. Liddy

      To my regret I cannot agree to the majority's opinions in the

present case, neither as far as Article 1 of the Protocol is concerned

nor with regard to the procedure aspect.  I regard what happened to Air

Canada and its Tristar as treatment not consistent with the rule of

law.  I cannot believe that the Tristar was seriously seized with a

view to forfeiture.  The seizure looks rather like a threatening

gesture which then led Air Canada to accept - under this enormous

pressure - a kind of involuntary settlement or transaction by paying

£50,000, a sum fixed by the Commissioners of Customs and Excise in

exercise of the practically unfettered discretion conferred upon them

by the relevant statutes (cf. paras. 13 and 23 of the Report).

      Looking behind the appearances, I come to the conclusion that

what actually happened in the present case under the disguise of

seizure and retention, subject to "proper" conditions was this: the

United Kingdom authorities had decided that Air Canada needed a strong

warning in order to be encouraged to improve their cargo security.  The

warning was given in two steps: first, a considerable psychological

shock was inflicted through the seizure of the Tristar, a very

expensive vehicle indeed, full of passengers waiting to embark upon or

continue their journey.  Second, the offer to release the plane against

payment of £50,000, a pecuniary sanction.  In my view, the only

convincing characterisation of this sum is that it was a fine.  The

Government stress the allegation of previous negligence of Air Canada,

which points to a vaguely retributive aim and, at the same time, a

preventative one.

      Having reached this point, I first draw the conclusion that Air

Canada was in fact faced with a criminal charge.  Article 6 therefore

applied.  However, the procedure followed brings to mind the facts of

the Deweer case (Eur. Court H.R., Deweer judgment of 27 February 1980,

Series A no. 35).  There, a butcher had been persuaded to accept a fine

by way of settlement under threat of his business being closed for an

indefinite time; here, Air Canada was persuaded to pay a fine under

threat of having its Tristar blocked with angry passengers asking not

only for an explanation but also for food and lodging, the press would

probably turn up and the negative publicity would give rise to

supplementary damage.  That none of the guarantees of Article 6 were

respected in the present case is obvious.

      Under these circumstances I cannot see how the interference with

the applicant's property can be justified.  I look at the case as a

whole - it does not seem realistic to distinguish between the seizure

of the Tristar and the imposition of a fine of £50,000.  I find that

Air Canada was deprived of £50,000 as the sum was paid under pressure

not entirely dissimilar to blackmail.  In view of the practically

unfettered discretion of the Commissioners I cannot accept that

conditions provided for by law were respected.  On the other hand, I

reject the proposition that the second paragraph of Article 1 of

Protocol No. 1 could justify the imposition under pressure of unlawful

penalties.

      For these reasons I have reached the opinion that, in the present

case, there have been breaches both of Article 6 of the Convention and

Article 1 of the Protocol.

                                                           (Or. Eng.)

                  DISSENTING OPINION OF MR. B. MARXER

      I disagree with the majority both as to Article 1 of Protocol

No. 1 and to Article 6 of the Convention.

      As to Article 1 of Protocol No. 1

      The present case concerns the circumstance that an airline

operator has been found to be operating an aircraft on which prohibited

substances have been found.  It is therefore different from Agosi,

where the confiscated goods were the very goods whose importation was

prohibited.  The existence of prohibited substances on board was

sufficient to render the entire aircraft liable to forfeiture, and in

the present case the aircraft was so forfeited.  In these

circumstances, there can be no link between the forfeiture and, for

example, the control of harmful drugs or indeed the control of

aircraft.  Whilst provision for some form of regulation of the

operation of aircraft is undoubtedly necessary in supervising

international air traffic, the relevant legislation as applied in the

present case goes so far beyond this legitimate aim that it can no

longer be seen as a control of use of aircraft or dangerous substances,

but must be considered as a deprivation of possessions.  It is true

that the effects of the seizure were mitigated in the present case in

that the aircraft was returned on payment of £50,000, but the

lawfulness of the forfeiture was not affected, so that one must regard

the applicant company as deprived, not of its aircraft, but of £50,000

on the  basis of the decisions in the forfeiture proceedings.

      Thus it is the second sentence of the first paragraph of

Article 1 which is applicable.  It prohibits deprivation of possessions

save in the public interest and subject to the conditions provided for

by law.  The general principles of international law are not at issue

in the present case.  I accept that the "conditions provided for by

law" were met in the present case, although the laws in question were

very strictly construed.  It must therefore be determined whether the

deprivation of possession in the present case was "in the public

interest".

      I note from the decision of the Court of Appeal in the present

case that the Court of Appeal looked at the wording of the statutory

powers granted in the case, found that they covered he facts of the

case, and concluded that it was not able to consider the case any

further.  Indeed, the Court of Appeal was not required to consider any

public interest at all, and it did not do so.  The mere fact that the

Court of Appeal did not come to any conclusion as to public interest

does  not, however, necessarily lead to the conclusion that there was

no public interest.  In particular, the Government have submitted that

there is an interest in deterring slack security procedures by

airlines.

      I accept that there is a considerable and possibly increasing

need for appropriate security at points of entry to countries, and also

that it may well be apposite to require transport operators to bear

some of the burden of such security arrangements.  It remains, however,

very difficult to forge a link between the interest in appropriate

security arrangements and the facts of the present case.  In

particular, given the findings of the Court of Appeal that there was

no need to establish fault on the part of the operator, and given the

apparent absence of any reference by the Commissioners in seizing the

aircraft to any "misbehaviour" on the part of the applicant company,

I fail to see how the public interest in airport security can be

furthered by a seizure which makes no reference to such matters.

      Thus it has not been shown that the deprivation of possessions

was "in the public interest".

      As to Article 6 of the Convention:

      Here I agree with Mr. Trechsel's approach.

                                                           (Or. Eng.)

             PARTLY DISSENTING OPINION OF MR. H. DANELIUS

      I have voted against the Commission's conclusion that there has

been no violation of Article 6 of the Convention, for the following

reasons.

      I accept that no criminal charge was involved in the present

case. However, the decision to return the aircraft against the payment

of £50,000 must be considered to have concerned the applicant company's

civil rights (cf. Application No. 12954/87, Raimondi v. Italy, Comm.

Report of 21 October 1992, paras. 113-115). The applicant company

cannot be considered to have acted voluntarily when it accepted to pay

this amount since the alternative with which it was faced was the much

more serious prospect of having the aircraft forfeited (cf. the

situation of constraint in the Deweer case, Eur. Court H.R., judgment

of 27 February 1980, Series A No. 35).

      The question which remains to be answered is therefore whether

the applicant company could have obtained a determination by a court

of whether or not the condition relating to the payment of £50,000 was

reasonable and appropriate. The determination of this question involves

the exercise of discretion and general legal appreciation rather than

considerations of a purely legal character. In these circumstances, I

cannot find it established, on the basis of the two court cases

referred to in paras. 25 and 26 of the Report, that judicial review

proceedings would have offered the applicant company a sufficient

remedy to satisfy the requirements of Article 6 of the Convention.

Moreover, no other judicial remedy would seem to have been available.

      For these reasons, I conclude that Article 6 of the Convention

has been violated in the present case.

                                                           (Or. Eng.)

              PARTLY DISSENTING OPINION OF MR. PELLONPÄÄ

      I disagree with the conclusion of non-violation of Article 1 of

Protocol No. 1 in the present case.

      As recalled in paragraph 29 of the Commission's Report, Article 1

comprises three distinct though interrelated elements:  the general

principle of everyone's right to peaceful enjoyment of his possessions,

protection against arbitrary deprivation of possessions and the rule

recognising the State's right to control the use of property.

      Since deprivation is the most serious interference with the

rights of the owner, it first has to be ascertained whether the

circumstances of the present case amount to such a deprivation.

      Deprivation, whether it takes place through formal expropriation

or other proceedings, or de facto by way of fundamental interferences

with the owner's position, can be defined as the taking of property

which is irreversible in the sense that there is no reasonable prospect

of its return.

      In the present case the seizure of the aircraft did not mean such

an irreversible taking but rather was a first measure which, in theory,

could have led to the taking of the aircraft.  This never happened but

the aircraft was returned to its owner against the payment of the sum

of £50,000.  Thus the second sentence of the first paragraph does not

apply in so far as there was no irreversible deprivation of the

aircraft.  In my view the case should not either be analysed as a

deprivation of £50,000.  While money (for example, the balance of a

bank account) can of course be the subject of deprivation within the

meaning of the second sentence of the first paragraph of Article 1,

a payment obligation relating to the use of property should be analysed

under the second paragraph.

      The second paragraph of Article 1 must be interpreted in the

light of the general principle enunciated in the first sentence of the

first paragraph of the same Article:  i.e. when enforcing laws intended

to control the use of property, the State must take into account the

principle concerning every natural or legal person's right "to the

peaceful enjoyment of his possessions".  This emphasises that the

undoubtedly wide discretion granted by the second paragraph is not

without limits.

      In my view, these limits, though,  have not been transgressed in

so far as concerns the requirement of "the general interest" behind the

measures applied.  The legislation in question per se served legitimate

interests.  Nor is there anything suggesting that in the instant case

the law was applied for purposes not sufficiently connected with those

interests.

      Nevertheless, it remains to be seen whether the principle of

proportionality was also respected; in other words, whether a fair

balance was struck between the public interest and the applicant's

right to the peaceful enjoyment of its possessions.

      In this regard it should be pointed out that the present case is

distinguishable from Agosi, referred to in paragraph 29 of the Report.

In the latter case, the goods subject to control measures

(confiscation) were the very items the importation of which was

prohibited, whereas the Tristar aircraft at issue in this case was not

a prohibited item in any way.  Yet the aircraft was seized and returned

only - to quote the expression used in the Dissenting Opinion of

Mr. Trechsel - "under pressure not entirely dissimilar to blackmail".

Under these circumstances the fair balance required by the second

paragraph of Article 1 of Protocol No. 1 presupposes the existence of

proceedings by which, at least after the seizure of the aircraft and

the imposition of the payment obligation of £50,000, the degree of

fault or guilt on the part of the applicant company can be examined and

balanced against the measures resorted to and the public interest

behind them (cf. Agosi judgment, Series A no. 108, p. 19, para. 55).

      In this regard I note that the condemnation proceedings which

ensued after the seizure and the payment of £50,000 were founded on an

assumption of a lack of any form of fault or guilt on the part of the

applicant company whatsoever - the proceedings confirmed that indeed

no proof of fault or guilt was needed under United Kingdom law to

justify the seizure.

      Thus the proceedings in question did not suffice to establish a

fair balance between the interests at stake.  I do not think that the

availability of judicial review can affect this conclusion:  in view

of the Court of Appeal's interpretation of the relevant rules, it is

highly unlikely that the seizure and the resultant payment obligation

could be characterised as decisions "which a public authority properly

directing itself on the relevant law and acting reasonably could not

have reached" (the so-called "Wednesbury" principle). I therefore

conclude that Article 1 of Protocol No. 1 has been violated.

      On the other hand, I agree with the majority that there was no

violation of Article 6 of the Convention.  The condition of payment of

£50,000 in my view cannot be characterised as a criminal sanction.  Nor

can it be said that Article 6 was violated in so far as concerns the

determination  of the applicant company's civil rights.  Admittedly the

condemnation proceedings before the High Court and the Court of Appeal

were highly unsatisfactory from the point of view of the applicant.

This, however, resulted from the very limited material scope of the

rights at issue in domestic law.  Although I have above found a

violation of Article 1 of Protocol No. 1 for reasons connected with the

contents of the rights and the related nature of the proceedings, I do

not find any such purely procedural defects as would constitute a

violation of Article 6.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                             Item

_________________________________________________________________

2 May 1991                       Introduction of the application

8 July 1991                      Registration of the application

Examination of Admissibility

8 January 1992                   Commission's deliberations and

                                 decision to invite the Government to

                                 submit observations on the  complaint

                                 under Article 1 of Protocol No. 1

25 March 1992                    Government's observations

15 July 1992

22 January 1993

22 May 1992                      Applicant's observations in reply

16 September 1992

26 January 1993

7 December 1992                  Commission's deliberations and

                                 decisions to request observations

                                 under Article 6 of the Convention and

                                 to hold an oral hearing

1 April 1993                     Oral hearing on admissibility and

                                 merits, Commission's deliberations

                                 and decision to declare the

                                 application admissible.

8 April 1993                     Commission approves text of decision

                                 on admissibility

Examination of the merits

18 May 1993                      Government's observations on the

                                 merits

20 May 1993                      Applicant's observations on the

                                 merits

4 September 1993                 Commission's consideration of the

                                 state of proceedings

30 November 1993                 Commission's deliberations on the

                                 merits, final vote and adoption of

                                 the Report