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AS TO THE ADMISSIBILITY OF

Application No. 32344/96

by Bryan Leslie ELTON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 11 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 24 May 1995 by

Bryan Leslie ELTON against the United Kingdom and registered on

22 July 1996 under file No. 32344/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a national of the United Kingdom, born in 1951,

and is currently detained in HMP Whitemoor.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

a. Particular circumstances of the present case

On 1 October 1992, certain provisions of the Criminal Justice Act

entered into force. Pursuant to these provisions, persons convicted on

or after 1 October 1992 and who have been sentenced to four years'

imprisonment or more are required to serve one half of their sentence

before being eligible for parole. Prior to the entry into force of

these provisions, a person sentenced to imprisonment was eligible for

parole after having served one third of the sentence imposed.

On 15 October 1993, the Maidstone Crown Court convicted the

applicant of drug offences committed on 25 September 1992 and sentenced

him to twelve years' imprisonment and, pursuant to the Drug Trafficking

Offences Act 1986 (the 1986 Act), a confiscation order, aimed at

depriving the applicant of benefits derived from the offences of which

he had been found guilty, in the amount of £.6.500 was made with six

months' consecutive imprisonment when this sum was not paid within

twelve months of his sentence.

At some unspecified point in time in August or September 1995,

the applicant sought leave to appeal against the making of the

confiscation order against him. In his appeal he stated:

"The grounds for my appeal are that the making of the

confiscation order against me was on the basis of assumptions

made by the Court pursuant to Section 2 of the 1986 Act. It is

my contention and complaint that since the confiscation order

made under the act was in nature of a criminal penalty I should

have been afforded the usual safeguards and guarantees available

to a defendant in the Criminal Justice system the most basic one

of which is to expect the Prosecution to make out its case

against me on a criminal standard of proof (beyond reasonable

doubt). The assumptions contained in section 2 of the Drug

Trafficking Offences Act 1986 effectively reverses the usual

burden of proof and consequently it is my contention that the

assumptions are in breach of the European Convention of Human

Rights and in particular of Article 6(2) thereof. ..."

On 20 November 1995, a single judge of the Court of Appeal denied

the applicant leave to appeal against the making of the confiscation

order, holding:

"your complaint is not of the manner in which the trial Judge

reached his conclusion, but is against the statutory framework. It is

not the function of the Court of Appeal Criminal Division to negative

primary legislation."

b. Relevant domestic law

The Drugs Trafficking Offences Act 1986 provides as follows:

"1. Confiscation orders

(1) ... where a person appears before the Crown Court to be

sentenced in respect of one or more drug trafficking offences

(and has not previously been sentenced or otherwise dealt with

in respect of his conviction for the offence or, as the case may

be, any of the offences concerned), the court shall act as

follows:

(2) The court shall first determine whether he has benefited

from drug trafficking.

(3) For the purposes of this Act, a person who has at any time

(whether before or after the commencement of this section)

received any payment or other reward in connection with drug

trafficking carried on by him or another has benefited from drug

trafficking.

(4) If the court determines that he has so benefited, the court

shall, before sentencing ... determine ... the amount to be

recovered in his case by virtue of this section.

(5) The court shall then in respect of the offence or offences

concerned -

(a) order him to pay that amount ...

...

2. Assessing the proceeds of drug trafficking

(1) For the purposes of this Act -

(a) any payments or others rewards received by a person at any

time (whether before or after the commencement of section 1 of

this Act) in connection with drug trafficking carried on by him

or another are his proceeds of drug trafficking, and

(b) the value of his proceeds of drug trafficking is the

aggregate of the values of the payments or other rewards.

(2) The court may, for the purpose of determining whether the

defendant has benefited from drug trafficking and, if he has, of

assessing the value of his proceeds of drug trafficking, make the

following assumptions, except to the extent that any of the

assumptions are shown to be incorrect in the defendant's case.

(3) Those assumptions are -

(a) that any property appearing to the court -

(i) to have been held by him at any time since his conviction,

or

(ii) to have been transferred to him at any time since the

beginning of the period of six years ending when the

proceedings were instituted against him,

was received by him, at the earliest time at which he

appears to the court to have held it, as a payment or

reward in connection with drug trafficking carried on by

him,

(b) that any expenditure of his since the beginning of that

period was met out of payments received by him in connection with

drug trafficking carried on by him, and

(c) that, for the purpose of valuing any property received or

assumed to have been received by him at any time as such a

reward, he received the property free of any other interests in

it ..."

COMPLAINTS

The applicant complains under Article 7 of the Convention that

he is only eligible for parole after having served half of his sentence

whilst the offences of which he has been convicted have been committed

prior to the entry into force of the new more strict rules on

eligibility for parole.

The applicant complains that the making of the confiscation order

against him is contrary to Article 6 para. 2 of the Convention in that

it is based on an assumption rather than on facts proven beyond

reasonable doubt.

THE LAW

1. The applicant complains under Article 7 (Art. 7) of the

Convention that he is only eligible for parole after having served half

of his sentence whilst the offences of which he has been convicted have

been committed prior to the entry into force of the new rules on

eligibility for parole.

Article 7 (Art. 7) of the Convention reads as follows:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the time

when it was committed. Nor shall a heavier penalty be imposed

than the one that was applicable at the time the criminal offence

was committed.

2. This Article shall not prejudice the trial and punishment

of any person for any act or omission which, at the time when it

was committed, was criminal according to the general principles

of law recognised by civilised nations."

However, the Commission is not required to decide whether or not

the facts submitted by the applicant disclose any appearance of a

violation of Article 7 (Art. 7) of the Convention as, in accordance

with Article 26 (Art. 26) of the Convention, the Commission finds that

the final decision regarding the determination of the applicant's

prison sentence was given by the Maidstone Crown Court on 15 October

1993. This is more than six months before the date on which the

application was submitted.

This finding is not altered by the subsequent proceedings, as

these proceedings did not concern the determination of the applicant's

prison sentence, but only concerned the applicant's objections against

the making of a confiscation order against him.

It follows that this complaint must be rejected under Article 27

(Art. 27) of the Convention for having been submitted out of time.

2. The applicant complains that the making of the confiscation order

against him is contrary to Article 6 para. 2 (Art. 6-2) of the

Convention.

Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission recalls that presumptions of fact or law operate

in every legal system and that the Convention does not prohibit such

presumptions in principle. Article 6 para. 2 (Art. 6-2) of the

Convention does not, however, regard presumptions of fact or law

provided for in the criminal law with indifference. It requires States

to confine them within reasonable limits which take into account the

importance of what is at stake and maintain the rights of the defence

(cf. Eur. Court HR, Salabiaku v. France jugment of 7 October 1988,

Series A no. 141, p. 16, para. 28; and Pham Hoang v. France judgment

of 25 September 1992, Series A no. 243, p. 21, para. 33).

The Commission further recalls that the Court has stressed that

"it does not call into question in any respect the powers of

confiscation conferred on the courts as a weapon in the fight against

the scourge of drug trafficking" (Eur. Court HR, Welch v. the United

Kingdom judgment of 9 February 1995, Series A no. 307-A, p. 14,

para. 36).

The Commission notes that the confiscation order was made by the

Maidstone Crown Court after it had found the applicant guilty of drug

offences, had determined that the applicant had benefitted from drug

offences and had assessed the amount of these benefits.

The Commission further notes that, according to Section 2 of the

Drug Trafficking Offences Act 1986, the relevant assumptions are not

to be made where they are shown to be incorrect in a particular case.

The Commission does not find it established that, in the proceedings

which led to the making of the confiscation order, the applicant was

unable to argue that the assumptions made in his case were incorrect.

Even assuming that the subsequent proceedings before the Court

of Appeal can be regarded as an effective remedy for the purposes of

Article 26 (Art. 26) of the Convention, the Commission cannot find that

the making of the confiscation order against the applicant raises any

issues regarding the principle of presumption of innocence guaranteed

by Article 6 para. 2 (Art. 6-2) of the Convention.

It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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ELTON v. THE UNITED KINGDOM

ELTON v. THE UNITED KINGDOM

LEXI