DISSENTING OPINION OF MM. SOYER, MARTINEZ, MRS. LIDDY,

MM. GEUS, and MARXER

     We agree with the majority of the Commission that regard must be

had to the essential nature and object of a measure both as stated in

domestic law and as revealed in practice but also consider the effect

relevant. Where a sanction or measure is not strictly speaking a

penalty, it may nonetheless have a similar purpose or effect which may

bring it within the ambit of Article 7 of the Convention (No. 5155/71,

Dec. 1.6.73, unpublished).

     As noted by the majority, the 1986 Act provides for drastic

assumptions in assessing the amount to be subject to a confiscation

order, in particular that all money passing through the defendant's

hands in the past six years will be assumed to be the benefit of drug

trafficking. The draconian nature of the provisions has been commented

upon by the domestic courts, which have taken steps to mitigate the

provisions by for example insisting on the criminal standard of proof

applying to the prosecution as regards whether a person has benefitted

from drug trafficking (cf. paras. 31-36 above). Nonetheless, once the

initial step of establishing that a defendant has b nefitted has been

accomplished by the prosecution, the burden of proof effectively

switches to the defendant to prove that particular assets were in fact

not derived from drug trafficking and therefore should not be included

in the calculation of the proceeds to be confiscated (see eg. Dickens

(1990) 91 CAR 164).

     We find force in the applicant's argument that the true nature

and object of the confiscation is punitive since in practice it goes

beyond reparation and prevention  in the scope of the proceeds which

it can attach ie it is not limited to the actual enrichment or profit.

Further, expenditure by the defendant is in fact capable of being added

to the total figure assessed.  While the severity of the order,

combined as it is with sentence of imprisonment in default, is not

decisive in itself, it is nonetheless a significant factor in assessing

whether the measure is punitive in its essential effect. There was no

sentence of imprisonment in default in the M. case referred to above

(see para. 44).

     The Commission in the case of M. took into account, in finding

the measure preventive, that the confiscation was not linked to a

finding of guilt or part of criminal proceedings. In the present case,

the confiscation was contingent upon a finding of guilt. It could not

be imposed or must fall away if for whatever technical reason a

defendant is acquitted or successful on appeal against conviction. As

an example, it is apparent that if an international drug trafficker

succeeded in securing an acquittal by virtue of a finding of insanity

it would not be possible to confiscate any of the proceeds of his

trafficking.

     We are aware that the United Kingdom system could be regarded as

giving a high standard of procedural protection to suspects as a result

of linking confiscation to criminal proceedings with a correspondingly

higher burden of proof on the prosecution. However, that link to the

criminal conviction combined with the stringency of the measure,

particularly the sentence of 2 years' imprisonment in default, leads

us to the view that such confiscation is a measure which in practice

is essentially punitive in its nature and effect.

     Consequently, we consider that the confiscation order imposed on

the applicant was a penalty within the meaning of Article 7 para. 1 of

the Convention. We would emphasise however that this conclusion is not

a criticism of confiscation itself as a means of combatting the

problems of drug trafficking: merely that the imposition of such a

penalty cannot under the terms of the Article be imposed

retrospectively.

                                                    Or.English