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