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.)