EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 17440/90
Peter Welch
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 15 October 1993)
TABLE OF CONTENTS
page
I. INTRODUCTION
(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-13) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 14-18). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-36) . . . . . . . . . . . . . . . . . . . . .3
A. Particular circumstances of the case
(paras. 19-24). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law and practice
(paras. 25-36). . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 37-67) . . . . . . . . . . . . . . . . . . . . .8
A. Complaint declared admissible
(para. 37). . . . . . . . . . . . . . . . . . . . .8
B. Point at issue
(para. 38). . . . . . . . . . . . . . . . . . . . .8
C. Article 7 of the Convention
(paras. 39-54). . . . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 54). . . . . . . . . . . . . . . . . . . . 11
DISSENTING OPINION of MM. J. C. Soyer, Martinez
Mrs. Liddy, MM. Geus, and Marxer . . . . . . . . 12
DISSENTING OPINION of Mr. H. G. Schermers . . . . 14
APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . 15
APPENDIX II DECISION ON THE ADMISSIBILITY. . . . . . .15-23
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen born in 1938 and currently
serving a prison sentence in HM Prison Long Lartin. He is represented
before the Commission by Mr. Ben Emmerson, counsel and
Mr. Jonathan Cooper, solicitor, practising in Evesham.
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent,
Mr. Huw Llewellyn, of the Foreign and Commonwealth Office.
4. The case concerns the applicant's complaint under Article 7 of
the Convention that the confiscation order imposed upon him constituted
the imposition of a retrospective criminal penalty.
B. The proceedings
5. The application was introduced on 22 June 1990 and registered on
19 November 1990.
6. On 7 October 1991, the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on the admissibility and merits of the application.
7. The Government submitted their written observations on
20 February 1992. The applicant submitted his observations on
28 May 1992.
8. On 10 April 1992, the Commission granted the applicant legal aid.
9. On 31 August 1992, the Commission decided to invite the parties
to an oral hearing on the admissibility and merits of the application.
10. At the hearing, which was held on 12 February 1993, the
Government were represented by Mr. Huw Llewellyn, Agent,
Mr. Alan Moses, Q.C. and Ms. Melanie Carter and Mr. Peter Vallance,
advisers from the Home Office. The applicant was represented by
Mr. Ben Emmerson, counsel and Mr. Jonathan Cooper, solicitor.
11. On 12 February 1993, the Commission declared admissible the
applicant's complaint under Article 7 of the Convention. The remainder
of the application was declared inadmissible. The parties were then
invited to submit any additional observations on the merits of the
application.
12. The Government submitted further observations on the merits on
6 April 1993 and the applicant submitted further observations on
8 April 1993.
13. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions, the
Commission finds that there is no basis on which a friendly settlement
can be effected.
C. The present Report
14. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, Acting President
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
J. C. SOYER
H. G. SCHERMERS
Mrs. G. H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
B. MARXER
G.B. REFFI
15. The text of the Report was adopted by the Commission
on 15 October 1993 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
16. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
17. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
18. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
19. The applicant was arrested on 3 November 1986 for suspected drugs
offences. He was charged on 4 November 1986 in respect of offences
concerning the importation of cannabis alleged to have occurred between
1 January 1986 and 3 November 1986. On 24 February 1987, the applicant
was charged with intent to supply cocaine and on 5 May 1987 a further
charge was brought, relating to possession of cocaine, alleged to have
been committed on 3 November 1986.
20. On 24 August 1988, the applicant was found guilty on five counts
and sentenced to 22 years' imprisonment in respect of two offences and
20 years' imprisonment in respect of three offences.
21. The judge also imposed on the applicant a confiscation order of
£66,914 under the Drug Trafficking Offences Act 1986 ("the 1986 Act")
in default of the payment of which the applicant would be liable to
serve a consecutive 2-year prison sentence. The operative provisions
of the 1986 Act had come into force on 12 January 1987.
22. The applicant applied to a single judge of the Court of Appeal
(Criminal Division) for leave to appeal against conviction and
sentence. He was granted leave to appeal against sentence only. His
application for leave to appeal against conviction was lodged outside
the 28 day time-limit. On appearing before the full Court of Appeal on
11 June 1990 the applicant applied for an extension of time so as to
apply for leave to appeal against conviction.
23. The applicant's reasons for his failure to apply within the
proper time were that, although he had always been dissatisfied with
his conviction, he did not appreciate, until the time-limit for an
application had expired, that the reasons for his dissatisfaction
constituted proper grounds for applying for leave to appeal.
24. On 11 June 1990, following a hearing at which the applicant was
represented and present,the Court of Appeal held that the security
precautions in evidence at the applicant's trial did not in any way
render the verdict unsafe or unsatisfactory and his application was
dismissed. In respect of the applicant's appeal against sentence, the
Court of Appeal reduced the applicant's overall sentence by 2 years.
In respect of the confiscation order, it held:
"The only matter in issue was the value of the appellant's
villa in Portugal. Two sums were put forward at the
material time. One was £40 000 and the other was £47 000.
The £47 000 figure was put forward by Mr. Woodhall, the
officer from Customs and excise who had charge of these
investigations. However evidence was given by a Mr.
Richardson, who was acquainted with this property and
indeed he had personally offered to purchase the villa for
£47 000. ... He said that he was aware that when he made
that offer that the total purchase price was in excess of
the then value of the villa, but he was prepared to go over
the odds, so to speak, because of the no interest terms
that had been offered. He went on to say that at the time
that the confiscation order was made, the villa was
currently valued at approximately £40 000.
The suggestion is that the Judge was in error when he based
himself on the earlier evidence of £47 000, and the
prosecution do not seek to uphold the Judge's view of the
matter. Therefore what we do is to reduce the total amount
of the confiscation by £7 000, which will result in the
figure of £59 914 being the subject of the order."
B. Relevant domestic law and practice
Background to the Drug Trafficking Act 1986
25. Following the arrest of drug trafficking suspects in an operation
known as "Operation Julie", the prosecution obtained before the Crown
Court following conviction of the defendants an order of forfeiture of
their profits. The defendants appealed successfully to the House of
Lords which held that the forfeiture power covered assets and monies
used for the commission of the specific offences but not the proceeds
of the drug trafficking generally (R. v. Cuthbertson 1980 3 WLR 89).
26. As a result, the Hodgson Committee was set up to consider whether
courts should be given the power to confiscate the proceeds of crime
and if so, the limits and enforcement of that power. In its report in
1984 "Profits of crime and their recovery", the Committee recommended
that criminal courts should have the power to order the confiscation
of the proceeds of an offence for which a person has been convicted and
that the object of such an order should be to restore the status quo
ante the offence.
27. When the subsequent Bill was introduced by the Secretary of State
on its second reading in the House of Commons, he stated inter alia:
"We intend to help guard against the possibility that the profits
from one trafficking operation will be used to finance others,
and, not least, to remove the sense of injury which ordinary
people are bound to feel at the idea of traffickers, who may have
ruined the lives of children, having the benefit of profits they
made doing so." (90 House of Commons Official Report 242)
The Drug Trafficking Act 1986
28. Section 1 of the 1986 Act provides as follows:
1 Confiscation orders
"(1) ... where a person appears before the Crown Court to be
sentenced in respect of one or more drug trafficking offences
(and has not previously been sentenced or otherwise dealt with
in respect of his conviction for the offence or, as the case may
be, any of the offences concerned), the court shall act as
follows:
(2) the court shall first determine whether he has benefited from
drug trafficking.
(3) For the purposes of this Act, a person who has at any time
(whether before or after the commencement of this Section)
received any payment or other reward in connection with drug
trafficking carried on by him or another has benefited from drug
trafficking.
(4) If the court determines that he has so benefited, the court
shall, before sentencing ... determine ... the amount to be
recovered in his case by virtue of this Section.
(5) The court shall then in respect of the offence or offences
concerned -
(a) order him to pay that amount..."
2 Assessing the proceeds of drug trafficking
(1) For the purposes of this Act-
(a) any payments or other rewards received by a person at
any time (whether before or after the commencement of
section 1 of this Act) in connection with drug trafficking
carried on by him or another are his proceeds of drug
trafficking, and
(b) the value of his proceeds of drug trafficking is the
aggregate of the values of the payments or other rewards.
(2) The court may, for the purpose of determining whether the
defendant has benefited from drug trafficking and , if he has,
of assessing the value of his proceeds of drug trafficking, make
the following assumptions, except to the extent that any of the
assumptions are shown to be incorrect in the defendant's case.
(3) Those assumptions are-
(a) that any property appearing to the court-
(i) to have been held by him at any time since his
conviction, or
(ii) to have been transferred to him at any time since
the beginning of the period of six years ending when
the proceedings were instituted against him,
was received by him, at the earliest time at which he
appears to the court to have held it, as a payment or
reward in connection with drug trafficking carried on
by him,
(b) that any expenditure of his since the beginning of that
period was met out of payments received by him in
connection with drug trafficking carried on by him, and
(c) that, for the purpose of valuing any property received
or assumed to have been received by him at any time as such
a reward, he received the property free of any other
interests in it...
3 Amount to be recovered under confiscation order
(1) Subject to subsection (3) below, the amount to be
recovered in the defendant's case shall be the amount the
Crown Court assesses to be the value of the defendant's
proceeds of drug trafficking.
(2) If the court is satisfied as to any matter relevant for
determining the amount that might be realised at the time
the confiscation order is made (whether by an acceptance
under section 3 of the Act or otherwise), the court may
issue a certificate giving the court's opinion as to the
matters concerned and shall do so if satisfied as mentioned
in sub-section (3) below.
(3) If the court is satisfied that the amount that may be
realised at the time of the confiscation order is made is
less than the amount the court assesses to be the value of
his proceeds of drug trafficking, the amount to be
recovered in the defendant's case under the confiscation
order shall be the amount appearing to the court to be the
amount that might be so realised."
28. The Act received the royal assent on 8 July 1986. Its provisions
were brought into force by various orders of the Secretary of State.
With the exception of Section 1(3) (which entered into force on
30 September 1986) Section 1 entered into force on 12 January 1987.
29. Section 38(4) of the 1986 Act provides:
"References in this Act to offences include a reference to
offences committed before the commencement of section 1 of this
Act; but nothing in this Act imposes any duty or confers any
power on any court in or in connection with proceedings against
a person for a drug trafficking offence instituted before the
commencement of that section."
Imprisonment in default
30. After a confiscation order has been made, the Crown Court decides
upon the period of imprisonment which the offender has to serve if he
fails to pay. This will not be activated until after such time within
which the Court has ordered the offender to pay. The maximum periods
of imprisonment are set down in Section 31 of the Powers of Criminal
Courts Act 1973. The maximum period for an order between the sums of
50,000 and 100,000 pounds sterling is 2 years.
Application of the legislation by the courts
31. The domestic courts have commented on the draconian nature of the
confiscation provisions in numerous cases and have often referred to
the orders, expressly or impliedly, as constituting penalties.
32. In the case of Dickens (1990) 91 CAR 164, the Court of Appeal
held that in the proceedings before the court concerning assessment of
proceeds the onus of proof to the criminal standard was on the
prosecution to establish that the defendant had benefitted from drug
trafficking and to what extent. The Lord Chief Justice stated: "In our
judgment the context of the Act and the nature of the penalties which
are likely to be imposed make it clear that the standard of proof
required is the criminal standard, namely proof so that the judge
feels sure, or beyond reasonable doubt..."
33. In the case of Porter (1990) 12 CAR(S) 377, the Court of Appeal
held that a trial judge could not impose a joint confiscation order on
co-defendants: "There must be certainty in sentencing. A convicted
person is entitled to know the extent of his monetary liability; a
fortiori when he is liable to lose his liberty if he fails to discharge
the monetary penalty."
34. In the case of In Re Lorenzo Barretto (30 November 1992
unreported) the High Court found that a new power of variation of
confiscation orders could not apply retrospectively to increase the
amount of an order made before a new 1990 Act came into force. In his
judgment, Mr. Justice Schieman made reference to Article 7 of the
Convention and found that in the absence of explicit retrospective
intention of the legislature, he would not construe the variation
powers as applying to alter the position of those who had already been
sentenced.
35. In other contexts however domestic courts have referred to the
confiscation provisions as not being punitive but reparative in
purpose.
36. For example, In Re:T(Restraint Order: Disclosure of Assets) 1992
1 WLR 949 Lord Justice Parker stated that section 3 of 1986 Act
"...reveals a very clear parliamentary intent...that the person
convicted of a drug trafficking offence, in addition to being punished
for that offence, should not be punished for other offences of a like
nature, but deprived of the benefits of all his other drug
trafficking". Lord Justice Leggatt said: "Confiscation applies to the
value of the Defendant's proceeds of drug trafficking, whereas
forfeiture extends to things used for the commission of the crime and
is therefore punitive. It is true that disclosure of assets exposes the
defendant to the risk of a confiscation order greater in amount than
could be made in the absence of disclosure, but it is not self-
incriminating because a person does not by making reparation incur
punishment."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
37. The Commission has declared admissible the applicant's complaint
that the confiscation order imposed on him constituted a retrospective
criminal penalty.
B. Point at issue
38. The issue to be determined is whether there has been a violation
of Article 7 (Art. 7) of the Convention.
C. Article 7 (Art. 7) of the Convention
39. Article 7 (Art. 7) provides that:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed.
2. This Article shall not prejudice the trial and
punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to
the general principles of law recognised by civilised
nations."
40. The applicant submits the confiscation order imposed on him
constituted a retrospective criminal penalty. He points to the
draconian nature of the order which is calculated on the basis of
assumptions that any money received or paid by the defendant in the
preceding six years is derived from drug trafficking. The purpose of
the order is wider than the removal of profits since it covers all
proceeds which have passed through the defendant's hands irrelevant of
whether he received any benefit or enrichment. Expenditure by the
defendant is not deducted in the calculation but in fact capable of
being added to the total figure. The effect of the order therefore is
not, in his submission, to restore the status quo since it will place
a defendant in a worse position. Further there is the imposition of a
period of imprisonment in default of payment (up to a maximum of ten
years) which is required to run consecutively to the prison term
imposed in respect of the offence. Consequently, the confiscation order
is essentially punitive in nature and effect since it arises out of
criminal proceedings in which guilt is determined and is contingent
upon a subsisting and valid criminal conviction.
41. The Government submit that the confiscation order did not
constitute a penalty for the purposes of Article 7 (Art. 7). It was a
preventive measure designed to prevent a defendant from benefitting
from the proceeds of drug trafficking and to prevent the use of the
proceeds for drug trafficking in the future. It was not intended as a
punishment or sanction for any specific offence. The nature and purpose
of a confiscation order should not be confused with the method of
identifying the appropriate person against whom the preventive measures
should be taken. The process of identifying the appropriate person
explains why such measures are linked to a drug trafficking offence and
that link is not sufficient to render the order a penalty having regard
to the purpose behind it. This proposition, that the link between the
criminal proceedings and the confiscation order is only for the purpose
of establishing the pre-condition that the person is a drug trafficker,
is demonstrated further by the fact that once the power to impose the
order is triggered the order may relate as in this case to a period in
respect of which there has been no conviction for drug trafficking.
42. The Commission notes first of all that there is no dispute as to
the retrospective effect of the confiscation provisions under the 1986
Act. At the time of the commission of the offences for which the
applicant was convicted (cf. para. 19 above) the legislative provisions
concerning confiscation were not in force (cf. para. 28 above). The
sole issue is as to whether the confiscation order constituted a
penalty imposed in respect of a criminal offence within the meaning of
Article 7 para. 1 (Art. 7-1) of the Convention.
43. An examination of the Commission's case-law reveals no
established definition of the term "penalty". While there are numerous
cases from the Commission and the Court dealing with the meaning of
"criminal charge", this is in the context of Article 6 para. 1
(Art. 6-1) and since the criteria listed (classification of the offence
in domestic law, nature of the offence and severity of the penalty) are
aimed at identifying the nature of the proceedings brought against an
accused, they are not, in the Commission's view, particularly useful
in ascertaining the character of the sanction imposed in this case (see
eg. Eur. Court H.R., Engel and others judgment of 8 June 1976, Series A
no. 22, pp. 33-34, para. 80).
44. The case of M. v. Italy (No. 12386/86, Dec. 15.4.91, D.R. 70
p. 59) provides some relevant comparison however. This application
concerned the complaints by the applicant, suspected of involvement in
organised crime, of the confiscation of property worth a considerable
amount of money. He invoked Article 6 para. 2 (Art. 6-2) and Article 7
(Art. 7) of the Convention. In considering whether the confiscation
order, if imposed retrospectively, constituted a penalty, the
Commission drew a distinction between penal measures and measures with
a preventive aim. It noted that the confiscation proceedings did not
involve a finding of guilt after determination of a criminal charge.
Rather the proceedings concerned the judicial investigation of the
probable source of revenue of a person suspected of organised crime
involvement and had the aim of removing that revenue from the future
disposal of the criminal organisation. The Commission commented that
the severity of a confiscation measure was not sufficient to give it
a penal character; it referred to the common use of confiscation
outside the penal sphere in administrative procedures eg in respect of
illegally imported goods, dangerous articles.
45. Both parties rely on the above case. The applicant points out
that unlike in M. his confiscation order was based on a finding of
guilt in respect of a criminal charge and was decided by the criminal
court at the end of the trial. The Government contend that the purpose
of the confiscation order being the same as in M. it should not be
decisive that in one case the courts dealt with the conviction and
confiscation separately while in the other they did not.
46. The Commission considers 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 (see eg Nos. 6211/73 and 6213/73, Dec. 11. 10.73
unpublished). Before embarking on a consideration of that question, it
would comment that a finding that a measure is not punitive in
character would not however remove the matter entirely from the
supervision of the Convention organs. A preventive measure relating to
property would attract the procedural guarantees of Article 6 para. 1
(Art. 6-1) of the Convention (insofar as it related to the
determination of civil rights and obligations) and Article 1 of
Protocol No. 1 (P1-1) to the Convention which guarantees the peaceful
enjoyment of possessions.
47. In the present case, the Commission recalls the background to the
1986 Act and the stated purpose of the Act (cf. paras. 25-27 above)
which indicate that the measure of confiscation was intended to be
reparative and preventive - to remove the proceeds of crime from the
offender so that "crime does not pay" and also to ensure the money
could not continue to be used in drug trafficking.
48. The procedure as enacted provides in practice that at the end of
criminal proceedings in which a person is convicted of drug trafficking
offences the court will proceed to determine whether the person has
benefitted from drug trafficking and if so assess the amount to be
subject to a confiscation order. The 1986 Act provides for drastic
assumptions in making that assessment, 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. These assumptions
however may be shown by the defendant to be incorrect.
49. The Commission notes that the domestic courts have commented on
the draconian nature of the provisions and appear to have attempted to
mitigate their effect by holding, for example, that the criminal
standard of proof lies on the prosecution to establish that a defendant
had in fact benefitted (cf. paras. 31-36 above). The statements of the
domestic courts referring to the confiscation order as penal or as a
penalty are not helpful however since they are contradictory and the
courts were addressing themselves to specific points of domestic law
and procedure rather than to the classification of the measure under
the provisions of the Convention.
50. Moreover, as stated above (at para. 44 in fine), the severity of
the measure, even with the inclusion of a term of imprisonment in
default of payment, cannot in itself be decisive of its character.
Default sentences exist outside the criminal or punitive sphere eg
failure to comply with civil obligations or court orders. Similarly,
the Commission agrees with the Government that the inclusion of the
confiscation proceedings at the end of the criminal trial does not by
itself render the measure punitive. The Commission notes the point made
by the applicant that the order is contingent on a finding of guilt.
But it considers that the domestic authorities have chosen to use a
conviction as the trigger for confiscation rather than, as in the M.
case, have separate and parallel proceedings in another court. The fact
that the confiscation order must fall away or cannot be imposed if a
conviction is later quashed or because for whatever technical reason
a defendant cannot be convicted reflects the high standard of proof
required in the United Kingdom system for identifying those persons who
have benefitted from drug trafficking.
51. The applicant argues 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. The Commission does
not find this argument conclusive. If a drug trafficker on arrest is
found to have a certain amount of money in his possession from the sale
of drugs, the domestic authorities cannot be required before
confiscating the money to embark on an exercise of calculating the
miscellaneous expenses which the trafficker might have incurred in the
process. The wide extent of the power to confiscate appears to the
Commission to derive rather from the purpose of ensuring that as much
drug trafficking proceeds as possible are caught in the net than from
any punitive purpose.
52. The Commission also notes that where a defendant is convicted,
perhaps only of one offence, the confiscation proceedings under the
1986 Act extend to an examination of proceeds from his drug trafficking
in the past generally. This in the Commission's view supports the
Government's contention that the role of the criminal proceedings is
to identify a person that has benefitted from drug trafficking and that
the confiscation procedure can be seen as a consequence with its own
specific purposes of reparation and prevention.
53. In light of the above considerations, the Commission finds that
the confiscation order imposed in the present case was not punitive in
nature or object and consequently did not constitute a penalty within
the meaning of Article 7 para. 1 (Art. 7-1) of the Convention.
CONCLUSION
54. The Commission concludes, by 7 votes to 7, with the casting vote
of the Acting President being decisive, that there has been
no violation of Article 7 (Art. 7) of the Convention.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Or. English
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
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
Full & Egal Universal Law Academy