Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17440/90

Peter Welch

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 15 October 1993)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 5-13) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 14-18). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-36) . . . . . . . . . . . . . . . . . . . . .3

A. Particular circumstances of the case

(paras. 19-24). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law and practice

(paras. 25-36). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 37-67) . . . . . . . . . . . . . . . . . . . . .8

A. Complaint declared admissible

(para. 37). . . . . . . . . . . . . . . . . . . . .8

B. Point at issue

(para. 38). . . . . . . . . . . . . . . . . . . . .8

C. Article 7 of the Convention

(paras. 39-54). . . . . . . . . . . . . . . . . . .8

CONCLUSION

(para. 54). . . . . . . . . . . . . . . . . . . . 11

DISSENTING OPINION of MM. J. C. Soyer, Martinez

Mrs. Liddy, MM. Geus, and Marxer . . . . . . . . 12

DISSENTING OPINION of Mr. H. G. Schermers . . . . 14

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . 15

APPENDIX II DECISION ON THE ADMISSIBILITY. . . . . . .15-23

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 is a British citizen born in 1938 and currently

serving a prison sentence in HM Prison Long Lartin. He is represented

before the Commission by Mr. Ben Emmerson, counsel and

Mr. Jonathan Cooper, solicitor, practising in Evesham.

3. The application is directed against the United Kingdom. The

respondent Government are represented by their Agent,

Mr. Huw Llewellyn, of the Foreign and Commonwealth Office.

4. The case concerns the applicant's complaint under Article 7 of

the Convention that the confiscation order imposed upon him constituted

the imposition of a retrospective criminal penalty.

B. The proceedings

5. The application was introduced on 22 June 1990 and registered on

19 November 1990.

6. On 7 October 1991, the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

7. The Government submitted their written observations on

20 February 1992. The applicant submitted his observations on

28 May 1992.

8. On 10 April 1992, the Commission granted the applicant legal aid.

9. On 31 August 1992, the Commission decided to invite the parties

to an oral hearing on the admissibility and merits of the application.

10. At the hearing, which was held on 12 February 1993, the

Government were represented by Mr. Huw Llewellyn, Agent,

Mr. Alan Moses, Q.C. and Ms. Melanie Carter and Mr. Peter Vallance,

advisers from the Home Office. The applicant was represented by

Mr. Ben Emmerson, counsel and Mr. Jonathan Cooper, solicitor.

11. On 12 February 1993, the Commission declared admissible the

applicant's complaint under Article 7 of the Convention. The remainder

of the application was declared inadmissible. The parties were then

invited to submit any additional observations on the merits of the

application.

12. The Government submitted further observations on the merits on

6 April 1993 and the applicant submitted further observations on

8 April 1993.

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

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

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

settlement of the case. In the light of the parties' reactions, the

Commission finds that there is no basis on which a friendly settlement

can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. S. TRECHSEL, Acting President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

J. C. SOYER

H. G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

B. MARXER

G.B. REFFI

15. The text of the Report was adopted by the Commission

on 15 October 1993 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

17. 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.

18. 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. Particular circumstances of the case

19. The applicant was arrested on 3 November 1986 for suspected drugs

offences. He was charged on 4 November 1986 in respect of offences

concerning the importation of cannabis alleged to have occurred between

1 January 1986 and 3 November 1986. On 24 February 1987, the applicant

was charged with intent to supply cocaine and on 5 May 1987 a further

charge was brought, relating to possession of cocaine, alleged to have

been committed on 3 November 1986.

20. On 24 August 1988, the applicant was found guilty on five counts

and sentenced to 22 years' imprisonment in respect of two offences and

20 years' imprisonment in respect of three offences.

21. The judge also imposed on the applicant a confiscation order of

£66,914 under the Drug Trafficking Offences Act 1986 ("the 1986 Act")

in default of the payment of which the applicant would be liable to

serve a consecutive 2-year prison sentence. The operative provisions

of the 1986 Act had come into force on 12 January 1987.

22. The applicant applied to a single judge of the Court of Appeal

(Criminal Division) for leave to appeal against conviction and

sentence. He was granted leave to appeal against sentence only. His

application for leave to appeal against conviction was lodged outside

the 28 day time-limit. On appearing before the full Court of Appeal on

11 June 1990 the applicant applied for an extension of time so as to

apply for leave to appeal against conviction.

23. The applicant's reasons for his failure to apply within the

proper time were that, although he had always been dissatisfied with

his conviction, he did not appreciate, until the time-limit for an

application had expired, that the reasons for his dissatisfaction

constituted proper grounds for applying for leave to appeal.

24. On 11 June 1990, following a hearing at which the applicant was

represented and present,the Court of Appeal held that the security

precautions in evidence at the applicant's trial did not in any way

render the verdict unsafe or unsatisfactory and his application was

dismissed. In respect of the applicant's appeal against sentence, the

Court of Appeal reduced the applicant's overall sentence by 2 years.

In respect of the confiscation order, it held:

"The only matter in issue was the value of the appellant's

villa in Portugal. Two sums were put forward at the

material time. One was £40 000 and the other was £47 000.

The £47 000 figure was put forward by Mr. Woodhall, the

officer from Customs and excise who had charge of these

investigations. However evidence was given by a Mr.

Richardson, who was acquainted with this property and

indeed he had personally offered to purchase the villa for

£47 000. ... He said that he was aware that when he made

that offer that the total purchase price was in excess of

the then value of the villa, but he was prepared to go over

the odds, so to speak, because of the no interest terms

that had been offered. He went on to say that at the time

that the confiscation order was made, the villa was

currently valued at approximately £40 000.

The suggestion is that the Judge was in error when he based

himself on the earlier evidence of £47 000, and the

prosecution do not seek to uphold the Judge's view of the

matter. Therefore what we do is to reduce the total amount

of the confiscation by £7 000, which will result in the

figure of £59 914 being the subject of the order."

B. Relevant domestic law and practice

Background to the Drug Trafficking Act 1986

25. Following the arrest of drug trafficking suspects in an operation

known as "Operation Julie", the prosecution obtained before the Crown

Court following conviction of the defendants an order of forfeiture of

their profits. The defendants appealed successfully to the House of

Lords which held that the forfeiture power covered assets and monies

used for the commission of the specific offences but not the proceeds

of the drug trafficking generally (R. v. Cuthbertson 1980 3 WLR 89).

26. As a result, the Hodgson Committee was set up to consider whether

courts should be given the power to confiscate the proceeds of crime

and if so, the limits and enforcement of that power. In its report in

1984 "Profits of crime and their recovery", the Committee recommended

that criminal courts should have the power to order the confiscation

of the proceeds of an offence for which a person has been convicted and

that the object of such an order should be to restore the status quo

ante the offence.

27. When the subsequent Bill was introduced by the Secretary of State

on its second reading in the House of Commons, he stated inter alia:

"We intend to help guard against the possibility that the profits

from one trafficking operation will be used to finance others,

and, not least, to remove the sense of injury which ordinary

people are bound to feel at the idea of traffickers, who may have

ruined the lives of children, having the benefit of profits they

made doing so." (90 House of Commons Official Report 242)

The Drug Trafficking Act 1986

28. Section 1 of the 1986 Act 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 other 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...

3 Amount to be recovered under confiscation order

(1) Subject to subsection (3) below, the amount to be

recovered in the defendant's case shall be the amount the

Crown Court assesses to be the value of the defendant's

proceeds of drug trafficking.

(2) If the court is satisfied as to any matter relevant for

determining the amount that might be realised at the time

the confiscation order is made (whether by an acceptance

under section 3 of the Act or otherwise), the court may

issue a certificate giving the court's opinion as to the

matters concerned and shall do so if satisfied as mentioned

in sub-section (3) below.

(3) If the court is satisfied that the amount that may be

realised at the time of the confiscation order is made is

less than the amount the court assesses to be the value of

his proceeds of drug trafficking, the amount to be

recovered in the defendant's case under the confiscation

order shall be the amount appearing to the court to be the

amount that might be so realised."

28. The Act received the royal assent on 8 July 1986. Its provisions

were brought into force by various orders of the Secretary of State.

With the exception of Section 1(3) (which entered into force on

30 September 1986) Section 1 entered into force on 12 January 1987.

29. Section 38(4) of the 1986 Act provides:

"References in this Act to offences include a reference to

offences committed before the commencement of section 1 of this

Act; but nothing in this Act imposes any duty or confers any

power on any court in or in connection with proceedings against

a person for a drug trafficking offence instituted before the

commencement of that section."

Imprisonment in default

30. After a confiscation order has been made, the Crown Court decides

upon the period of imprisonment which the offender has to serve if he

fails to pay. This will not be activated until after such time within

which the Court has ordered the offender to pay. The maximum periods

of imprisonment are set down in Section 31 of the Powers of Criminal

Courts Act 1973. The maximum period for an order between the sums of

50,000 and 100,000 pounds sterling is 2 years.

Application of the legislation by the courts

31. The domestic courts have commented on the draconian nature of the

confiscation provisions in numerous cases and have often referred to

the orders, expressly or impliedly, as constituting penalties.

32. In the case of Dickens (1990) 91 CAR 164, the Court of Appeal

held that in the proceedings before the court concerning assessment of

proceeds the onus of proof to the criminal standard was on the

prosecution to establish that the defendant had benefitted from drug

trafficking and to what extent. The Lord Chief Justice stated: "In our

judgment the context of the Act and the nature of the penalties which

are likely to be imposed make it clear that the standard of proof

required is the criminal standard, namely proof so that the judge

feels sure, or beyond reasonable doubt..."

33. In the case of Porter (1990) 12 CAR(S) 377, the Court of Appeal

held that a trial judge could not impose a joint confiscation order on

co-defendants: "There must be certainty in sentencing. A convicted

person is entitled to know the extent of his monetary liability; a

fortiori when he is liable to lose his liberty if he fails to discharge

the monetary penalty."

34. In the case of In Re Lorenzo Barretto (30 November 1992

unreported) the High Court found that a new power of variation of

confiscation orders could not apply retrospectively to increase the

amount of an order made before a new 1990 Act came into force. In his

judgment, Mr. Justice Schieman made reference to Article 7 of the

Convention and found that in the absence of explicit retrospective

intention of the legislature, he would not construe the variation

powers as applying to alter the position of those who had already been

sentenced.

35. In other contexts however domestic courts have referred to the

confiscation provisions as not being punitive but reparative in

purpose.

36. For example, In Re:T(Restraint Order: Disclosure of Assets) 1992

1 WLR 949 Lord Justice Parker stated that section 3 of 1986 Act

"...reveals a very clear parliamentary intent...that the person

convicted of a drug trafficking offence, in addition to being punished

for that offence, should not be punished for other offences of a like

nature, but deprived of the benefits of all his other drug

trafficking". Lord Justice Leggatt said: "Confiscation applies to the

value of the Defendant's proceeds of drug trafficking, whereas

forfeiture extends to things used for the commission of the crime and

is therefore punitive. It is true that disclosure of assets exposes the

defendant to the risk of a confiscation order greater in amount than

could be made in the absence of disclosure, but it is not self-

incriminating because a person does not by making reparation incur

punishment."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

37. The Commission has declared admissible the applicant's complaint

that the confiscation order imposed on him constituted a retrospective

criminal penalty.

B. Point at issue

38. The issue to be determined is whether there has been a violation

of Article 7 (Art. 7) of the Convention.

C. Article 7 (Art. 7) of the Convention

39. Article 7 (Art. 7) provides that:

"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."

40. The applicant submits the confiscation order imposed on him

constituted a retrospective criminal penalty. He points to the

draconian nature of the order which is calculated on the basis of

assumptions that any money received or paid by the defendant in the

preceding six years is derived from drug trafficking. The purpose of

the order is wider than the removal of profits since it covers all

proceeds which have passed through the defendant's hands irrelevant of

whether he received any benefit or enrichment. Expenditure by the

defendant is not deducted in the calculation but in fact capable of

being added to the total figure. The effect of the order therefore is

not, in his submission, to restore the status quo since it will place

a defendant in a worse position. Further there is the imposition of a

period of imprisonment in default of payment (up to a maximum of ten

years) which is required to run consecutively to the prison term

imposed in respect of the offence. Consequently, the confiscation order

is essentially punitive in nature and effect since it arises out of

criminal proceedings in which guilt is determined and is contingent

upon a subsisting and valid criminal conviction.

41. The Government submit that the confiscation order did not

constitute a penalty for the purposes of Article 7 (Art. 7). It was a

preventive measure designed to prevent a defendant from benefitting

from the proceeds of drug trafficking and to prevent the use of the

proceeds for drug trafficking in the future. It was not intended as a

punishment or sanction for any specific offence. The nature and purpose

of a confiscation order should not be confused with the method of

identifying the appropriate person against whom the preventive measures

should be taken. The process of identifying the appropriate person

explains why such measures are linked to a drug trafficking offence and

that link is not sufficient to render the order a penalty having regard

to the purpose behind it. This proposition, that the link between the

criminal proceedings and the confiscation order is only for the purpose

of establishing the pre-condition that the person is a drug trafficker,

is demonstrated further by the fact that once the power to impose the

order is triggered the order may relate as in this case to a period in

respect of which there has been no conviction for drug trafficking.

42. The Commission notes first of all that there is no dispute as to

the retrospective effect of the confiscation provisions under the 1986

Act. At the time of the commission of the offences for which the

applicant was convicted (cf. para. 19 above) the legislative provisions

concerning confiscation were not in force (cf. para. 28 above). The

sole issue is as to whether the confiscation order constituted a

penalty imposed in respect of a criminal offence within the meaning of

Article 7 para. 1 (Art. 7-1) of the Convention.

43. An examination of the Commission's case-law reveals no

established definition of the term "penalty". While there are numerous

cases from the Commission and the Court dealing with the meaning of

"criminal charge", this is in the context of Article 6 para. 1

(Art. 6-1) and since the criteria listed (classification of the offence

in domestic law, nature of the offence and severity of the penalty) are

aimed at identifying the nature of the proceedings brought against an

accused, they are not, in the Commission's view, particularly useful

in ascertaining the character of the sanction imposed in this case (see

eg. Eur. Court H.R., Engel and others judgment of 8 June 1976, Series A

no. 22, pp. 33-34, para. 80).

44. The case of M. v. Italy (No. 12386/86, Dec. 15.4.91, D.R. 70

p. 59) provides some relevant comparison however. This application

concerned the complaints by the applicant, suspected of involvement in

organised crime, of the confiscation of property worth a considerable

amount of money. He invoked Article 6 para. 2 (Art. 6-2) and Article 7

(Art. 7) of the Convention. In considering whether the confiscation

order, if imposed retrospectively, constituted a penalty, the

Commission drew a distinction between penal measures and measures with

a preventive aim. It noted that the confiscation proceedings did not

involve a finding of guilt after determination of a criminal charge.

Rather the proceedings concerned the judicial investigation of the

probable source of revenue of a person suspected of organised crime

involvement and had the aim of removing that revenue from the future

disposal of the criminal organisation. The Commission commented that

the severity of a confiscation measure was not sufficient to give it

a penal character; it referred to the common use of confiscation

outside the penal sphere in administrative procedures eg in respect of

illegally imported goods, dangerous articles.

45. Both parties rely on the above case. The applicant points out

that unlike in M. his confiscation order was based on a finding of

guilt in respect of a criminal charge and was decided by the criminal

court at the end of the trial. The Government contend that the purpose

of the confiscation order being the same as in M. it should not be

decisive that in one case the courts dealt with the conviction and

confiscation separately while in the other they did not.

46. The Commission considers that regard must be had to the essential

nature and object of a measure both as stated in domestic law and as

revealed in practice (see eg Nos. 6211/73 and 6213/73, Dec. 11. 10.73

unpublished). Before embarking on a consideration of that question, it

would comment that a finding that a measure is not punitive in

character would not however remove the matter entirely from the

supervision of the Convention organs. A preventive measure relating to

property would attract the procedural guarantees of Article 6 para. 1

(Art. 6-1) of the Convention (insofar as it related to the

determination of civil rights and obligations) and Article 1 of

Protocol No. 1 (P1-1) to the Convention which guarantees the peaceful

enjoyment of possessions.

47. In the present case, the Commission recalls the background to the

1986 Act and the stated purpose of the Act (cf. paras. 25-27 above)

which indicate that the measure of confiscation was intended to be

reparative and preventive - to remove the proceeds of crime from the

offender so that "crime does not pay" and also to ensure the money

could not continue to be used in drug trafficking.

48. The procedure as enacted provides in practice that at the end of

criminal proceedings in which a person is convicted of drug trafficking

offences the court will proceed to determine whether the person has

benefitted from drug trafficking and if so assess the amount to be

subject to a confiscation order. The 1986 Act provides for drastic

assumptions in making that assessment, in particular that all money

passing through the defendant's hands in the past six years will be

assumed to be the benefit of drug trafficking. These assumptions

however may be shown by the defendant to be incorrect.

49. The Commission notes that the domestic courts have commented on

the draconian nature of the provisions and appear to have attempted to

mitigate their effect by holding, for example, that the criminal

standard of proof lies on the prosecution to establish that a defendant

had in fact benefitted (cf. paras. 31-36 above). The statements of the

domestic courts referring to the confiscation order as penal or as a

penalty are not helpful however since they are contradictory and the

courts were addressing themselves to specific points of domestic law

and procedure rather than to the classification of the measure under

the provisions of the Convention.

50. Moreover, as stated above (at para. 44 in fine), the severity of

the measure, even with the inclusion of a term of imprisonment in

default of payment, cannot in itself be decisive of its character.

Default sentences exist outside the criminal or punitive sphere eg

failure to comply with civil obligations or court orders. Similarly,

the Commission agrees with the Government that the inclusion of the

confiscation proceedings at the end of the criminal trial does not by

itself render the measure punitive. The Commission notes the point made

by the applicant that the order is contingent on a finding of guilt.

But it considers that the domestic authorities have chosen to use a

conviction as the trigger for confiscation rather than, as in the M.

case, have separate and parallel proceedings in another court. The fact

that the confiscation order must fall away or cannot be imposed if a

conviction is later quashed or because for whatever technical reason

a defendant cannot be convicted reflects the high standard of proof

required in the United Kingdom system for identifying those persons who

have benefitted from drug trafficking.

51. The applicant argues that the true nature and object of the

confiscation is punitive since, in practice, it goes beyond reparation

and prevention in the scope of the proceeds which it can attach ie it

is not limited to the actual enrichment or profit. The Commission does

not find this argument conclusive. If a drug trafficker on arrest is

found to have a certain amount of money in his possession from the sale

of drugs, the domestic authorities cannot be required before

confiscating the money to embark on an exercise of calculating the

miscellaneous expenses which the trafficker might have incurred in the

process. The wide extent of the power to confiscate appears to the

Commission to derive rather from the purpose of ensuring that as much

drug trafficking proceeds as possible are caught in the net than from

any punitive purpose.

52. The Commission also notes that where a defendant is convicted,

perhaps only of one offence, the confiscation proceedings under the

1986 Act extend to an examination of proceeds from his drug trafficking

in the past generally. This in the Commission's view supports the

Government's contention that the role of the criminal proceedings is

to identify a person that has benefitted from drug trafficking and that

the confiscation procedure can be seen as a consequence with its own

specific purposes of reparation and prevention.

53. In light of the above considerations, the Commission finds that

the confiscation order imposed in the present case was not punitive in

nature or object and consequently did not constitute a penalty within

the meaning of Article 7 para. 1 (Art. 7-1) of the Convention.

CONCLUSION

54. The Commission concludes, by 7 votes to 7, with the casting vote

of the Acting President being decisive, that there has been

no violation of Article 7 (Art. 7) of the Convention.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

Or. English

DISSENTING OPINION OF MM. SOYER, MARTINEZ, MRS. LIDDY,

MM. GEUS, and MARXER

We agree with the majority of the Commission that regard must be

had to the essential nature and object of a measure both as stated in

domestic law and as revealed in practice but also consider the effect

relevant. Where a sanction or measure is not strictly speaking a

penalty, it may nonetheless have a similar purpose or effect which may

bring it within the ambit of Article 7 of the Convention (No. 5155/71,

Dec. 1.6.73, unpublished).

As noted by the majority, the 1986 Act provides for drastic

assumptions in assessing the amount to be subject to a confiscation

order, in particular that all money passing through the defendant's

hands in the past six years will be assumed to be the benefit of drug

trafficking. The draconian nature of the provisions has been commented

upon by the domestic courts, which have taken steps to mitigate the

provisions by for example insisting on the criminal standard of proof

applying to the prosecution as regards whether a person has benefitted

from drug trafficking (cf. paras. 31-36 above). Nonetheless, once the

initial step of establishing that a defendant has b nefitted has been

accomplished by the prosecution, the burden of proof effectively

switches to the defendant to prove that particular assets were in fact

not derived from drug trafficking and therefore should not be included

in the calculation of the proceeds to be confiscated (see eg. Dickens

(1990) 91 CAR 164).

We find force in the applicant's argument that the true nature

and object of the confiscation is punitive since in practice it goes

beyond reparation and prevention in the scope of the proceeds which

it can attach ie it is not limited to the actual enrichment or profit.

Further, expenditure by the defendant is in fact capable of being added

to the total figure assessed. While the severity of the order,

combined as it is with sentence of imprisonment in default, is not

decisive in itself, it is nonetheless a significant factor in assessing

whether the measure is punitive in its essential effect. There was no

sentence of imprisonment in default in the M. case referred to above

(see para. 44).

The Commission in the case of M. took into account, in finding

the measure preventive, that the confiscation was not linked to a

finding of guilt or part of criminal proceedings. In the present case,

the confiscation was contingent upon a finding of guilt. It could not

be imposed or must fall away if for whatever technical reason a

defendant is acquitted or successful on appeal against conviction. As

an example, it is apparent that if an international drug trafficker

succeeded in securing an acquittal by virtue of a finding of insanity

it would not be possible to confiscate any of the proceeds of his

trafficking.

We are aware that the United Kingdom system could be regarded as

giving a high standard of procedural protection to suspects as a result

of linking confiscation to criminal proceedings with a correspondingly

higher burden of proof on the prosecution. However, that link to the

criminal conviction combined with the stringency of the measure,

particularly the sentence of 2 years' imprisonment in default, leads

us to the view that such confiscation is a measure which in practice

is essentially punitive in its nature and effect.

Consequently, we consider that the confiscation order imposed on

the applicant was a penalty within the meaning of Article 7 para. 1 of

the Convention. We would emphasise however that this conclusion is not

a criticism of confiscation itself as a means of combatting the

problems of drug trafficking: merely that the imposition of such a

penalty cannot under the terms of the Article be imposed

retrospectively.

Or.English

DISSENTING OPINION OF Mr. H. G. Schermers

In my opinion, the confiscation of property acquired by crime,

even without express prior legislation, is not contrary to Article 7

of the Convention, nor to Article 1 of the First Protocol. In this

respect, I can support much of the opinion of the majority. In

principle, therefore, I do not consider the 1986 Act as such contrary

to the Convention. The importance of effectively fighting crime

justifies its drastic assumptions. These drastic assumptions, however,

illustrate that, apart from its purpose to "take back" what was

obtained illegally, the Act also includes a punitive element. Without

the assumption of an underlying crime, only illegally-obtained profit

could be confiscated and only to the extent to which the authorities

could prove the unjust enrichment. In my view, the confiscation of

property in excess of the amount which the authorities can prove to be

obtained from crime is of a punitive character. That part of the

confiscation, therefore, may not be retroactively imposed. The facts

as presented to the Commission suggest that property in excess of that

amount has been confiscated which leads me to the conclusion that there

has been a violation of Article 7 of the Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

22.06.90 Introduction of the application

19.11.90 Registration of the application

Examination of admissibility

07.10.91 Commission's decision to invite the parties to submit

observations on the admissibility and merits of the

application

20.02.92 Government's observations

10.04.92 Commission's grant of legal aid to the applicant

28.5.92 Applicant's observations

31.08.92 Commission's decision to invite the parties to an oral

hearing on the admissibility and merits

12.02.93 Hearing on the admissibility and merits

12.02.93 Commission's decision to declare the application

partially admissible, partially inadmissible.

Examination of the merits

12.02.93 Commission's deliberations on the merits

06.04.93 Government's submission of further observations on the

merits

08.04.93 Applicant's submission of further observations on the

merits

03.07.93 Commission's consideration of the state of proceedings

15.10.93 Commission's deliberations on the merits, final votes

and adoption of the Report

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WELCH v. THE UNITED KINGDOM

WELCH v. THE UNITED KINGDOM

LEXI