DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I disagree with the majority in this case, since I consider that there has indeed been a breach of Protocol No. 1 and of Article 6 of the Convention (P1, art. 6).

It is true that the scope of the judgment in relation to rules applicable to customs authorities is limited. The Court has held that Protocol No. 1 (P1) has not been violated and that Article 6 (art. 6) does not apply. Essentially, it takes the view that the applicant company had available to it a procedure allowing adequate judicial review of the decision of May 1980 by the Commissioners of Customs and Excise.

Concerning Article 1 of Protocol No. 1 (P1-1)

With regard to the second paragraph of Article 1 of the Protocol (P1-1), the Court states that forfeiture of goods is permissible only if the explicit requirements of this Article (P1-1) are respected and if the State strikes a fair balance between its own interests and those of the individual concerned (paragraphs 52 and 54).

In the Court ’ s opinion, it has not been established that the British system failed to ensure that reasonable account was taken of the conduct of the applicant company, and the latter must be held responsible for its failure to seek judicial review of the Commissioners ’ decision of May 1980 and thereby to receive full advantage of the safeguards which ought to be available to property owners who have committed no customs offence.

In my view, however, the applicant company was effectively prevented from availing itself of the safeguards to which it was legitimately entitled.

AGOSI attempted to use all the generally known remedies. Following the decision of the court of first instance, ordering forfeiture of the coins under section 44(b) of the Customs Act 1952, the company took the matter to the Court of Appeal, which rejected the appeal, having considered the legal definition of goods or capital in the Treaty of Rome.

The Court of Appeal refused leave to appeal to the House of Lords. On 27 March 1980 , AGOSI unsuccessfully sought leave to appeal from the House of Lords itself.

In the Court of Appeal, however, Sir David Cairns observed:

"Whatever may be the extent of the principle of international law about the confiscation of goods belonging to aliens, that principle in my view clearly cannot apply to the forfeiture of smuggled goods. If an alien can show that such forfeiture would involve depriving him of his property and that he is innocent of any complicity in the smuggling, it is appropriate that there should be an opportunity for him to apply for the exercise of discretion in his favour, but I cannot see that it would be possible so to construe the 1952 Act as to exclude from any forfeiture provision any goods belonging to such an alien" ([1980] All England Law Reports 144).

The following events had pre-dated these proceedings before the Court of Appeal.

AGOSI first applied to the customs authorities for return of the coins on 18 and 28 August 1975 . Customs officials inspected AGOSI ’ s factory and found no evidence that an offence had been committed. A further request to the customs authorities on 13 October 1975 was unsuccessful. However, AGOSI co-operated with the customs authorities in the criminal proceedings against X and Y. The civil proceedings for return of the coins were instituted against the Commissioners of Customs and Excise in the High Court on 14 April 1977 . This action was dismissed.

A procedure for forfeiture was first introduced in English law by the Customs Consolidation Act 1853, but this Act did not abolish the authorities ’ discretionary power to restore confiscated property.

Between 1836 (case of R. v. Commissioners of Customs and Another) and 1985 ( Haworth case), there was apparently no case involving judicial review of the exercise of the customs authorities ’ discretionary power to restore seized property.

The judgment in the Haworth case cannot be cited as a precedent against AGOSI, since it came after the High Court ’ s decision in the AGOSI case. AGOSI argued that the word "may" in the Customs Consolidation Act 1876 had to be interpreted as conferring on the courts discretionary power with regard to restoration of seized property. The House of Lords might have given a useful ruling on this important point if it had granted the applicant company leave to appeal.

It seems to me that the procedure followed did not sufficiently distinguish between criminal and administrative law, between confiscation in the English sense of "forfeiture" and final confiscation, with transfer of ownership to the State - a distinction needed to protect the rights of lawful owners innocent of any criminal or customs offence. In the present case and having regard to the goods confiscated, there was no State interest making it necessary to maintain the confiscation. The gold coins in dispute were indeed within the meaning of Article 1 of Protocol No. 1 (P1-1). In my view, this Article (P1-1) implies that an innocent owner, acting in good faith, must be able to recover his property.

Even if the State is allowed a margin of discretion in respect of its administrative regulations, the action taken and maintained against AGOSI violated its right to enjoyment of its possessions and was disproportionate both in its aims and its effects.

At the hearing, the Commission ’ s Delegate argued that judicial review had not been a remedy sufficient, for the purposes of Article 1 of Protocol No. 1 (P1-1), to allow AGOSI to vindicate its rights as an innocent property-owner; this analysis would seem relevant here. Firstly, the United Kingdom Government did not in fact raise the question of judicial review in connection with the exhaustion of domestic remedies before the Commission. Secondly, to use this argument at the merits stage when it had not earlier been used in connection with Article 26 (art. 26) at the Commission stage would seem contradictory, even if the Government reserved the right to return to this point when the merits were being considered. If the remedy was so obvious, surely failure to use it should have been taken as an argument?

The complexity of the English procedural system in this area was evident both before the Commission and before the Court. It cannot be compared with the continental legal systems which allow judicial control of administrative action in individual cases through administrative dispute procedures. It is true that the judicial review procedure in the United Kingdom is moving in the right direction, but it can still puzzle even experienced British lawyers, the scarcity of decisions in this area being a sign of this.

The Commission ’ s Delegate also noted that the British Government had argued that the principle that confiscated goods must be restored to an innocent owner could not be deduced from Article 1 of Protocol No. 1 (P1-1). He thought this inconsistent with the same Government ’ s claim that the judicial review procedure could be regarded as sufficient.

In its decision on the admissibility of the application (report, page 44), the Commission summed up the Government ’ s position as follows:

"The respondent Government contend that the applicant has failed to exhaust available and effective domestic remedies within the meaning of Article 26 (art. 26) of the Convention in that it has failed to take proceedings against X and Y either on the cheque which they issued or on the contract. The respondent Government accept for the purposes of admissibility that the possibility to challenge the refusal by the Commissioners of Customs and Excise to exercise their discretion under section 288 of the Customs and Excise Act 1952 by way of judicial review was not a remedy which Article 26 (art. 26) of the Convention required the applicant to pursue.

The respondent Government contend that the requirement of Article 26 (art. 26) is that a remedy should be capable of providing redress for the applicant ’ s complaint, whether or not the remedy relates to the alleged breach of the Convention. Thus a civil action against X and Y would have provided the applicant with the financial remedy, the contract price, to which it was entitled under the contract of sale. Furthermore, this remedy reflects the nature of the applicant ’ s subsisting interest in the coins after their ‘ sale ’ to X and Y, which was a contractual right to their return or to payment for them."

Such an action, had it been brought, would have been a subsidiary one, leading only to a possible award of damages. The main civil action was still that brought against the authorities holding the coins, in order to secure their return.

The wording of section 288 of the 1952 Act shows that the discretionary powers of the Commissioners of Customs and Excise are exceedingly wide. In the case of AGOSI, the authorities were not prepared, at any point, to return the coins.

However, the rule of law implies "that an interference by the authorities with an individual ’ s rights should be subject to effective control .... This is especially so where ... the law bestows on the executive wide discretionary powers" (Silver and Others judgment of 25 March 1983, Series A no. 61, p. 34, para. 90).

It does not emerge clearly from the decided authorities that judicial review could have been usefully exercised, even supposing the courts of last instance had jurisdiction in this respect. Order 53 of the Supreme Court Practice spells out the difficulty of applying for judicial review. On 1 May 1980, the Commissioners of Customs and Excise replied that they were not prepared to use their power of returning the coins under section 288 of the 1952 Act, even though AGOSI had also relied on the general principles of English law in asking to have them returned and had again applied unsuccessfully to the High Court to have them returned.

The protection of the first paragraph of Article 1 of Protocol No. 1 (P1-1) does not extend to persons guilty of fraud, but it does extend to property owners who are not guilty of fraud.

There was thus, in my view, a definite breach of Article 1 of Protocol No. 1 (P1-1).

Concerning Article 6 para. 1 (art. 6-1) of the Convention

Apart from the question of Article 1 of Protocol No. 1 (P1-1), the issue of violation of Article 6 (art. 6) of the Convention also arises. Having decided that Protocol No. 1 (P1) had been violated, the Commission did not consider this point.

The criminal proceedings were brought against the importers. AGOSI ’ s legal representative was not prosecuted - indeed, he was called as a witness. AGOSI ’ s claim was not made within the framework of the criminal proceedings, to which it was not a "party" in the procedural sense. On the contrary, its applications to establish title and secure restitution of the gold coins of which it was the lawful owner both under the original contract and in domestic law were clearly concerned with "civil rights and obligations" within the meaning of Article 6 para. 1 (art. 6-1).

This meant that the rules concerning a "fair trial" had to be applied. Yet, in the first place, AGOSI was not able effectively to assert its rights in a civil or administrative procedure allowing proper participation of the contending parties (procès contradictoire) and leading to a decision on its claim. Secondly, a remedy enabling judicial review of the customs authorities ’ decisions was not effectively available; in any event, such judicial review as was possible was not wide enough in scope and did not satisfy the demands of legal certainty.

The Government had referred, at the admissibility stage, to the possibility of AGOSI ’ s bringing an action against X and Y, but any such action would have encountered insurmountable obstacles, quite apart from the insolvency of X and Y. Moreover, the appropriate civil action was clearly the action brought against the customs authorities for return of the coins.

If the customs authorities had brought criminal proceedings against the director of AGOSI for alleged complicity, the latter would have received a fair trial. But since the customs authorities brought no charges against AGOSI, it is unfair to bar them from civil remedies or to disregard the rules embodied in Article 6 (art. 6) concerning "civil rights and obligations", such rights and obligations undoubtedly being at issue in the present proceedings. The end result here is maintenance of an administrative sanction imposed by the customs authorities and not justified by any guilt on AGOSI ’ s part. Article 6 para. 1 (art. 6-1) definitely implies that one cannot, on the pretext of changing the jurisdictional field and legal classification, deprive a litigant of the safeguards customary in proceedings in connection with such matters. This is the line followed in the European Court ’ s judgment in the Öztürk case. A State which, because of the way in which it has structured its administration of justice, has not prosecuted a person under the criminal law may not deprive him of the guarantees provided by Article 6 (art. 6) on the ground that there have been no criminal proceedings, and yet at the same time prevent the bringing of civil proceedings. Thus, AGOSI was denied the opportunity both of proving its innocence in criminal proceedings and of asserting its rights in civil proceedings. It was treated less well in its case than were the actual offenders.

As the law and the precedents stood prior to 1985, judicial review was an extraordinary remedy and AGOSI ’ s own failure to have recourse to it cannot, in my view, be taken as the reason for considering that it had not received the benefit of the safeguards required by the Convention. In my opinion, there was accordingly a breach of Article 6 para. 1 (art. 6-1).

[*]  Note by the Registrar: The case is n umbered 14/1984/86/133.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on t he list of cases referred in that year; the last two figures indica te, respectively, the case's order on the list of cases and originating applications (to the Commission) referred to the Court since its creation.