DISSENTING OPINION OF JUDGE WOJTYCZEK

1. I respectfully disagree with the view of the majority that there has been a violation of Article 1 of Protocol No. 1 and I also disapprove of the methodology applied in the reasoning of the judgment.

2. The confiscation of the proceeds of crime raises many difficult legal questions such as the nature of the link between the crime and the proceeds, the distribution of the burden of proof in establishing this link and the methodology used in calculating the value of assets acquired through crime. Without trying to discuss the matter in an extensive way, I would like to point very briefly to a few problems that arise from the judgment in the instant case.

3. In the reasoning of the judgment the majority decides to focus on the review of the measure confiscating possessions stemming from a crime. The legal argument seems to be based on several implicit assumptions: (1) that the question whether or not acts which result in proceeds being confiscated fall within the ambit of the rights protected under the Convention (or the Protocols) is irrelevant from the viewpoint of the Convention; (2) that the confiscation of the proceeds of crime should be dealt with under the Convention in the same way as any other interference with property rights (see the reference to the Sporrong and Lonroth judgment in paragraph 67); (3) that such a measure may accepted only if its application is made subject to a proportionality test carried out by the court which applies it; and (4) that the decision to confiscate the proceeds should be subject to review by a higher court from the viewpoint of proportionality. In my view, all those assumptions should be refuted.

4. When examining the instant case the majority does not see the need to distinguish between measures applied in respect of acts falling within the ambit of the rights protected under the Convention or its Protocols and those remaining outside their scope. However, this question is of paramount importance.

A punishment is by definition an interference with freedom or with property. When assessing the compatibility with the Convention of a punishment or other measure prescribed by criminal law, it is necessary to distinguish between two situations. The first one is a punishment or measure applied in respect of acts that fall outside the scope of the Convention. In such a case, any punishment should comply with the requirements of Article 3 and, in particular, should not be grossly disproportionate. A grossly disproportionate punishment may constitute inhuman or degrading treatment prohibited by Article 3 of the Convention.

The second situation is a punishment or other measure in respect of an act which falls within the scope of application of a right protected under the Convention. Many provisions of the Convention require any interference with the rights protected under the Convention to meet the test of proportionality. Therefore, the assessment of the compatibility of a measure with the applicable provisions of the Convention may require the proportionality test to be carried out. This pertains also to punishments and other types of measures prescribed by criminal law.

5. The second assumption on which the judgment is based is that the confiscation of the proceeds of a crime should be dealt with under the Convention in the same way as any other interference with property rights. However, there is a fundamental difference between possessions acquired in a lawful way and possessions acquired through crime. Furthermore, the assumption in question is difficult to reconcile with the very wide margin of appreciation left to States in the field of criminal law, especially if the punishable acts fall outside the scope of the rights protected under the Convention and the Protocols. In principle, States are free to establish their criminal policy in that field provided that they observe the standards of criminal law set forth in Articles 3 and 7 of the Convention.

The confiscation of the proceeds of crime is a criminal-law measure that may be based on natural justice. One of its aims is to ensure that a crime does not profit the perpetrator. Illegal gains should not be protected under the Convention and should not be considered to fall within the scope of application of Article 1 of Protocol No. 1. This last provision comes into play, however, when the parties dispute the source of some possessions.

The paradox of the approach adopted by the majority is that possessions obtained as a result of crime enjoy protection under Article 1 of Protocol No. 1 against excessive interference. According to the approach proposed by the majority, they may be retained by a criminal if their confiscation would not strike a fair balance between the individual and public interests at stake.

Moreover, the approach taken by the majority opens the way to the review of the proportionality of punishments imposed by the domestic courts in criminal matters, and may transform the Court into a further instance assessing the merits of criminal cases. In this regard I am not persuaded that the Convention enshrines a general requirement of proportionality of criminal law applicable outside the scope of the specific rights protected under this international instrument and going beyond the minimum requirements of Article 3 of the Convention.

6. The majority states in a very general way that the scope of the review carried out by the domestic courts was too narrow to satisfy the requirement of seeking the “fair balance” inherent in the second paragraph of Article 1 of Protocol No. 1, and criticises the Court of Appeal. In this context it should be noted that a second-instance court should not in principle have wider powers than the first-instance court. The review of a measure from the viewpoint of proportionality makes sense only if the first-instance court is entitled to assess the situation from the viewpoint of this principle when applying a specific measure. The judgment implies therefore that the first ‑ instance court applying the measure under consideration should also be entitled to carry out the proportionality test.

Given the vagueness of the wording, it is difficult to understand clearly the logic underlying this approach and in particular to identify the individual interests and circumstances that should be taken into account when assessing the compatibility with the Convention of the confiscation of proceeds under the “fair balance” test. It should be stressed in this context that once the general principle of confiscation of the proceeds of crime is accepted, there is little room for an assessment as to whether the confiscation was proportionate in a specific case. I agree, nonetheless, that in some specific circumstances it may be necessary to take into account some legitimate interests of the perpetrator and to mitigate the measures to be taken. The typical question, however, is not whether the proceeds of crime should be confiscated but to what extent the applicant is able to repay them. It would be preferable for this matter to be clearly addressed in the reasoning and for the different factors that should be taken into account to be clearly identified.

7. As noted above, the majority criticises the Court of Appeal for the way it carried out the review of the decision taken by the Crown Court. In particular, it disagrees with the view that the British courts lack any discretion to interfere with the confiscation decision if it has been made in accordance with the law (see paragraph 67 in fine ). The reasoning thus suggests that the decision to confiscate the proceeds of crime should not only be subject to review from the viewpoint of its conformity with the legal rules, but also that the second-instance court should be entitled to assess the necessity of the measure applied from the viewpoint of some unspecified extra-legal criteria, although the domestic law does not refer to any such standards and does not require the application of such standards by the first ‑ instance court.

8. Under the established case-law of the Court, confiscation of the proceeds of crime is a measure compatible in principle with the Convention and its Protocols. As stated above, once we accept that the proceeds of crime may be confiscated, there is little room left for the analysis of proportionality.

It has to be stressed that the applicant in the present case was punished for acts which do not fall within the scope of protection of the rights protected by the Convention and its Protocols. The applicant failed to demonstrate that in the circumstances of the case the Convention required the measure applied to him to be mitigated. Nonetheless, in applying the domestic law criterion of “oppressiveness”, the domestic courts weighed in the balance the general interest of the community and the individual interest of the applicant in retaining the proceeds of his illegal earnings and concluded:

“...throughout the period of his employment [the applicant] was relying on a continuing dishonest representation to three different employers. ... His earnings, of course, reflected the fact that he had done the necessary work, as we shall assume, to the satisfaction of his various employers. But the opportunity for him to do so, that is the pecuniary advantage, was unlawfully obtained. If ... his deception either lacked any significant wider public interest, or ... had ceased to have any meaningful effect on his employers ’ decision to continue his employment, the resolution of the issue might well be different. As it is there was here a wider public interest. The appellant was deliberately circumventing the prohibition against him seeking remunerative employment in this country in any capacity.”

In the absence of any evidence to suggest that the applicant bore an individual and excessive burden there are no reasons for this Court to substitute its own assessment of the facts for that made by the domestic courts.