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WELCH v. THE UNITED KINGDOMDISSENTING OPINION OF Mr. H. G. Schermers

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Document date: October 15, 1993

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WELCH v. THE UNITED KINGDOMDISSENTING OPINION OF Mr. H. G. Schermers

Doc ref: • ECHR ID:

Document date: October 15, 1993

Cited paragraphs only

DISSENTING OPINION OF Mr. H. G. Schermers

In my opinion, the confiscation of property acquired by crime,

even without express prior legislation, is not contrary to Article 7

of the Convention, nor to Article 1 of the First Protocol. In this

respect, I can support much of the opinion of the majority. In

principle, therefore, I do not consider the 1986 Act as such contrary

to the Convention. The importance of effectively fighting crime

justifies its drastic assumptions. These drastic assumptions, however,

illustrate that, apart from its purpose to "take back" what was

obtained illegally, the Act also includes a punitive element. Without

the assumption of an underlying crime, only illegally-obtained profit

could be confiscated and only to the extent to which the authorities

could prove the unjust enrichment. In my view, the confiscation of

property in excess of the amount which the authorities can prove to be

obtained from crime is of a punitive character. That part of the

confiscation, therefore, may not be retroactively imposed. The facts

as presented to the Commission suggest that property in excess of that

amount has been confiscated which leads me to the conclusion that there

has been a violation of Article 7 of the Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

22.06.90 Introduction of the application

19.11.90 Registration of the application

Examination of admissibility

07.10.91 Commission's decision to invite the parties to submit

observations on the admissibility and merits of the

application

20.02.92 Government's observations

10.04.92 Commission's grant of legal aid to the applicant

28.5.92 Applicant's observations

31.08.92 Commission's decision to invite the parties to an oral

hearing on the admissibility and merits

12.02.93 Hearing on the admissibility and merits

12.02.93 Commission's decision to declare the application

partially admissible, partially inadmissible.

Examination of the merits

12.02.93 Commission's deliberations on the merits

06.04.93 Government's submission of further observations on the

merits

08.04.93 Applicant's submission of further observations on the

merits

03.07.93 Commission's consideration of the state of proceedings

15.10.93 Commission's deliberations on the merits, final votes

and adoption of the Report

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