DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

To my regret, I am not able to agree with the majority of the Chamber in this case. I think that there was a violation of Article 6 § 1 (art. 6-1) under its civil head, but no violation under its criminal head. To my mind, the question whether there was a violation of Article 1 of Protocol No. 1 (P1-1) is absorbed by the issue raised under Article 6 (art. 6). These finding prompted me to join the majority in all but the last vote on the operative part of the judgment.

I concur with the majority when, in paragraph 55 of the judgment, it states that what is decisive for the outcome of the case is whether or not sufficient procedural guarantees were given in English law to the applicant company. But, as already indicated, I part ways with the majority when it reasons on the basis that an insufficiency of procedural guarantees would entail a violation of Article 1 of Protocol No. 1 (P1-1). In my opinion, this would entail a violation of Article 6 § 1 (art. 6-1) in relation to a determination of the applicant company ’ s "civil rights". It is immaterial whether or not this provision was cited in argument by the applicant company, be it under the civil or criminal head or under both. My main reason for applying Article 6 (art. 6) and not Article 1 of Protocol No. 1 (P1-1) is that Article 6 (art. 6) enunciates a clearly stated rule on the right to a fair trial. Such a rule is not expressly set out in the Article relied on by the majority, which finds that it is implied in the provision. Such an interpretation of the Convention is in my opinion not necessary in the present case and somewhat strained.

Having come to the conclusion that Article 6 (art. 6) is the material provision, the next question to be answered is whether or not a civil right of the applicant company was at stake. It would be out of place to try to formulate, in this dissenting opinion, a general rule on the dividing line between civil rights and public-law rights in the field of customs and excise. It suffices to say that the rather special circumstances of the present case lead me without hesitation to classify AGOSI ’ s claim for recovery of the gold coins as an assertion of a "civil right" for the purposes of Article 6 § 1 (art. 6-1) of the Convention.

It then remains to determine whether or not the procedure used or available satisfied the requirements of Article 6 § 1 (art. 6-1). This provision requires, inter alia, a fair hearing before a tribunal. This means that one has to examine the following three questions, as the majority does in paragraphs 58, 59 and 60 of the judgment, namely

- was the remedy of judicial review available?

- was the Commissioners ’ discretion in the present case so wide as to be unreviewable?

- was such judicial review as may have been available of sufficient scope?

It is strictly speaking correct, as found by the majority in paragraph 58 of the judgment, that judicial review was available according to the law and, as stated in paragraph 59 and shown by the Haworth case in 1985, the decision challenged by the applicant company was in theory reviewable. It is clear, in my opinion, that, under English law as it stands, this is an extraordinary remedy which can be exercised only very rarely. This is of importance especially since circumstances where a judicial remedy could be sought cannot be infrequent. Moreover, the grounds on which review can be granted are limited in scope. They are set out in paragraph 40 of the judgment which cites an extract from the part of the Supreme Court Practice (1985) relating to the so-called Order 53.

Having regard to the content of paragraph 40 of the judgment, I am not satisfied that the applicant company had available to it under English law a judicial remedy of sufficient scope, for the purposes of Article 6 § 1 (art. 6-1) of the Convention, in which the civil right it asserted could be determined.