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You are here: BAILII >> Databases >> European Court of Human Rights >> WELCH v. THE UNITED KINGDOM - 17440/90 [1995] ECHR 4 (9 February 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/4.html
Cite as: [1995] ECHR 4, 20 EHRR 247, (1995) 20 EHRR 247
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In the case of Welch v. the United Kingdom (1),
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of
Court A (2), as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr R. Macdonald,
Mr J. De Meyer,
Mr I. Foighel,
Mr R. Pekkanen,
Sir John Freeland,
Mr L. Wildhaber,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 26 October 1994 and
25 January 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 1/1994/448/527. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to
the Court since its creation and on the list of the
corresponding originating applications to the Commission.
2. Rules A apply to all cases referred to the Court before
the entry into force of Protocol No. 9 (P9) and thereafter
only to cases concerning States not bound by that Protocol
(P9). They correspond to the Rules that came into force on
1 January 1983, as amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
15 January 1994, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 17440/90)
against the United Kingdom of Great Britain and Northern
Ireland lodged with the Commission under Article 25 (art. 25)
by a British citizen, Mr Peter Welch, on 22 June 1990.
2. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United
Kingdom recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46). The object of the request was to
obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations
under Article 7 (art. 7) of the Convention.
3. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated
that he wished to take part in the proceedings and designated
the lawyer who would represent him (Rule 30).
4. The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,
the President of the Court (Rule 21 para. 3 (b)). On
28 January 1994, in the presence of the Registrar, the
President drew by lot the names of the other seven members,
namely Mr F. Matscher, Mr R. Macdonald, Mr N. Valticos,
Mr I. Foighel, Mr R. Pekkanen, Mr L. Wildhaber and
Mr K. Jungwiert (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
Subsequently Mr J. De Meyer, substitute judge, replaced
Mr Valticos, who was unable to take part in the further
consideration of the case (Rules 22 para. 1 and 24 para. 1).
5. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent
of the United Kingdom Government ("the Government"), the
applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38).
Pursuant to the order made in consequence, the Registrar
received the Government's memorial on 20 June 1994 and the
applicant's memorial on 24 June. On 15 September the
applicant's submissions under Article 50 (art. 50) were
received. The Secretary of the Commission subsequently
informed the Court that the Delegate would make his comments
at the hearing.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 24 October 1994. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr M. Eaton, Foreign and Commonwealth Office, Agent,
Mr A. Moses, QC, Counsel,
Mr H. Giles, Home Office,
Mr P. Vallance, Home Office,
Mr S. Jones, Home Office, Advisers;
(b) for the Commission
Mr Gaukur Jörundsson, Delegate;
(c) for the applicant
Mr B. Emmerson, Counsel,
Mr R. Atter, Solicitor,
Mr J. Cooper, Adviser.
The Court heard addresses by Mr Gaukur Jörundsson,
Mr Emmerson and Mr Moses and also replies to questions put by
the President and another judge.
AS TO THE FACTS
I. Circumstances of the case
7. On 3 November 1986 Mr Welch was arrested for suspected
drug offences. On 4 November he was charged in respect of
offences concerning the importation of large quantities of
cannabis. Prosecuting Counsel advised, prior to
February 1987, that there was insufficient evidence to charge
Mr Welch with possession of cocaine with intent to supply.
8. After further investigations, including forensic
examinations, further evidence came to light and on
24 February 1987 the applicant was charged with the offence of
possession with intent to supply cocaine alleged to have been
committed on 3 November 1986. Subsequently, on 5 May 1987, he
was charged with conspiracy to obtain cocaine within intent to
supply in respect of activities which occurred between
1 January 1986 and 3 November.
9. On 24 August 1988, Mr Welch was found guilty on five
counts and was given an overall sentence of twenty-two years'
imprisonment. In addition, the trial judge imposed a
confiscation order pursuant to the Drug Trafficking Offences
Act 1986 ("the 1986 Act") in the amount of £66,914. In
default of the payment of this sum he would be liable to serve
a consecutive two years' prison sentence. The operative
provisions of the 1986 Act had come into force on
12 January 1987. The Act applies only to offences proceedings
for which were instituted after this date.
10. On 11 June 1990 the Court of Appeal reduced Mr Welch's
overall sentence by two years. In addition it reduced the
confiscation order by £7,000 to £59,914.
II. Relevant domestic law
11. The intended purpose of the 1986 Act was to extend
existing confiscation powers to enable the court to follow
drug trafficking money which had been "laundered" into
legitimate property. In the words of the Secretary of State
who introduced the Bill in the House of Commons:
"By attacking the profits made from drug trafficking, we
intend to make it much less attractive to enter the
trade. 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 the profits that they
have made from doing so.
...
We need the legislation because the forfeiture powers in
existing law have proved inadequate. The courts cannot
order the forfeiture of the proceeds of an offence once
they have been converted into another asset - a house,
stocks and shares, or valuables of any sort. The
Operation Julie case was the most notorious example of
the courts being unable to deprive convicted traffickers,
as they wished, of the proceeds of their offences ... the
Bill is designed to remedy those defects. It will
provide powers for courts to confiscate proceeds even
after they have been converted into some other type of
asset." (Hansard of 21 January 1986, Cols 242 and 243)
A. Drug Trafficking Offences Act 1986
12. The relevant parts of the 1986 Act provide 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 ...
...
4. 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 ... 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 subsection (3) below.
(3) If the court is satisfied that the amount that may be
realised at the time 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."
B. Discretion of the trial judge
13. In determining the amount of the confiscation order the
trial judge may take into consideration the degree of
culpability of the offender. For example, in R. v. Porter
([1990] 12 Criminal Appeal Reports (sentencing) 377) the Court
of Appeal held that where more than one conspirator was before
the court the total proceeds of a drug trafficking conspiracy
could be unequally allocated as their respective share of the
proceeds if there was evidence that the defendants had played
unequal roles and had profited to a different extent.
Similarly, in the present case, the trial judge made a much
smaller order in respect of the applicant's co-defendant in
recognition of his lesser involvement in the offences.
C. Imprisonment in default of payment
14. 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. The maximum periods of
imprisonment are provided for 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 is two years.
D. Statements by domestic courts concerning the nature of
forfeiture and confiscation provisions
15. Prior to the passing of the 1986 Act, Lord Salmon
expressed the view that forfeitures of money had both a
punitive and deterrent purpose (House of Lords decision in
R. v. Menocal, [1979] 2 Weekly Law Reports 876).
16. The domestic courts have commented in various cases on
the draconian nature of the confiscation provisions in the
1986 Act and have occasionally referred to the orders,
expressly or impliedly, as constituting penalties (R. v.
Dickens [1990] 91 Criminal Appeal Reports 164; R. v. Porter
[1990] 12 Criminal Appeal Reports 377; In Re Lorenzo Barretto,
High Court decision of 30 November 1992 and Court of Appeal
decision of 19 October 1993).
In the Court of Appeal decision in the last-mentioned
case, which concerned the question whether a power to vary
confiscation orders introduced by the Criminal Justice
(International Co-operation) Act 1990 could be applied
retrospectively, the Master of the Rolls (Sir Thomas Bingham)
stated as follows (at p. 11):
"While it is true that a confiscation order is made
before sentence is passed for the substantive offence,
and the term of imprisonment in default is passed to
procure compliance and not by way of punishment, these
are in a broad sense penal provisions, inflicting the
vengeance of society on those who have transgressed in
this field."
17. However, the domestic courts have also referred to the
confiscation provisions as not being punitive but reparative
in purpose (Re T (Restraint Order; Disclosure of Assets)
[1992] 1 Weekly Law Reports 949).
PROCEEDINGS BEFORE THE COMMISSION
18. Mr Welch lodged his application (no. 17440/90) with the
Commission on 22 June 1990. He complained under Article 7
(art. 7) of the Convention that the confiscation order imposed
upon him constituted the imposition of a retrospective
criminal penalty. He further complained of violations of his
rights under Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of
the Convention.
19. On 12 February 1993 the Commission declared the
applicant's complaint admissible in so far as it raised issues
under Article 7 (art. 7) of the Convention. The remainder of
the application was declared inadmissible.
In its report of 15 October 1993 (Article 31) (art. 31),
it expressed the opinion that there had been no violation of
Article 7 (art. 7) (seven votes to seven with the casting vote
of the Acting President being decisive). The full text of the
Commission's opinion and of the two dissenting opinions
contained in the report is reproduced as an annex to this
judgment (1).
_______________
1. Note by the Registrar: For practical reasons this annex
will appear only with the printed version of the judgment
(volume 307-A of Series A of the Publications of the Court),
but a copy of the Commission's report is obtainable from the
registry.
_______________
FINAL SUBMISSIONS TO THE COURT
20. In their memorial, the Government requested the Court to
find that there has been no violation of Article 7 (art. 7) of
the Convention in the present case.
21. The applicant submitted in his memorial that his rights
under Article 7 (art. 7) have been violated by the application
of an enactment which was expressly retrospective in its
effect.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 7 PARA. 1 (art. 7-1) OF THE
CONVENTION
22. The applicant complained that the confiscation order that
was made against him amounted to the imposition of a
retrospective criminal penalty, contrary to Article 7 (art. 7)
which reads as follows:
"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 (art. 7) 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."
He emphasised that his complaint was limited to the
retrospective application of the confiscation provisions of
the 1986 Act and not the provisions themselves.
23. He submitted that in determining whether a confiscation
order was punitive the Court should look beyond its stated
purpose and examine its real effects. The severity and extent
of such an order identified it as a penalty for the purposes
of the Convention.
In the first place, under section 2 (3) of the 1986 Act
the national court was entitled to assume that any property
which the offender currently held or which had been
transferred to him in the preceding six years, or any gift
which he had made during the same period, were the proceeds of
drug trafficking (see paragraph 12 above). In addition by
seeking to confiscate the proceeds, as opposed to the profits,
of drug dealing, irrespective of whether there had in fact
been any personal enrichment, the order went beyond the
notions of reparation and prevention into the realm of
punishment.
Moreover, the fact that an order could not be made unless
there had been a criminal conviction and that the degree of
culpability of an accused was taken into consideration by the
court in fixing the amount of the order also pointed in the
direction of a penalty. Indeed prior to the passing of the
1986 Act the courts had regarded forfeiture orders as having
the dual purpose of punishment and deterrence (see
paragraph 15 above). Finally, confiscation orders had been
recognised as having a punitive character in various domestic
court decisions (see paragraph 16 above) and in several
decisions of the Supreme Court of the United States concerning
similar legislation (Austin v. the United States and Alexander
v. the United States, decisions of 28 June 1993,
125 Led 2d 441 and 488).
24. The Government contended that the true purpose of the
order was twofold: firstly, to deprive a person of the profits
which he had received from drug trafficking and secondly, to
remove the value of the proceeds from possible future use in
the drugs trade. It thus did not seek to impose a penalty or
punishment for a criminal offence but was essentially a
confiscatory and preventive measure. This could be seen from
the order in the present case, which had been made for the
purpose of depriving the defendant of illegal gains. Had no
order been made, the money would have remained within the
system for use in further drug-dealing enterprises.
It was stressed that a criminal conviction for drug
trafficking was no more than a "trigger" for the operation of
the statutory provisions. Once the triggering event had
occurred, there was no further link with any conviction.
Thus, the court could consider whether a person had benefited
from drug trafficking at any time and not merely in respect of
the offence with which he had been charged. Moreover, an
order could be made in relation to property which did not form
part of the subject-matter of the charge against the defendant
or which had been received by him in a period to which no
drug-dealing conviction related.
Furthermore, the fact that a period of imprisonment could
be imposed in default of payment could be of no assistance in
characterising the nature of the confiscation order since
there were many non-penal court orders which attracted such a
penalty in the event of non-compliance. Similarly the harsh
effect of the order was of no assistance, since the
effectiveness of a preventive measure required that a drug
trafficker be deprived not only of net profits but of money
which would otherwise remain available for use in the drug
trade.
25. For the Commission, the order in the present case was not
punitive in nature but reparative and preventive and,
consequently, did not constitute a penalty within the meaning
of Article 7 para. 1 (art. 7-1) of the Convention.
26. The Court first observes that the retrospective
imposition of the confiscation order is not in dispute in the
present case. The order was made following a conviction in
respect of drugs offences which had been committed before the
1986 Act came into force (see paragraph 11 above). The only
question to be determined therefore is whether the order
constitutes a penalty within the meaning of Article 7
para. 1 (art. 7-1), second sentence.
27. The concept of a "penalty" in this provision is, like the
notions of "civil rights and obligations" and "criminal
charge" in Article 6 para. 1 (art. 6-1), an autonomous
Convention concept (see, inter alia, - as regards "civil
rights" - the X v. France judgment of 31 March 1992, Series A
no. 234-C, p. 98, para. 28, and - as regards "criminal charge"
- the Demicoli v. Malta judgment of 27 August 1991, Series A
no. 210, pp. 15-16, para. 31). To render the protection
offered by Article 7 (art. 7) effective, the Court must remain
free to go behind appearances and assess for itself whether a
particular measure amounts in substance to a "penalty" within
the meaning of this provision (see, mutatis mutandis, the
Van Droogenbroeck v. Belgium judgment of 24 June 1982,
Series A no. 50, p. 20, para. 38, and the Duinhof and Duijf
v. the Netherlands judgment of 22 May 1984, Series A no. 79,
p. 15, para. 34).
28. The wording of Article 7 para. 1 (art. 7-1), second
sentence, indicates that the starting-point in any assessment
of the existence of a penalty is whether the measure in
question is imposed following conviction for a "criminal
offence". Other factors that may be taken into account as
relevant in this connection are the nature and purpose of the
measure in question; its characterisation under national law;
the procedures involved in the making and implementation of
the measure; and its severity.
29. As regards the connection with a criminal offence, it is
to be observed that before an order can be made under the
1986 Act the accused must have been convicted of one or more
drug-trafficking offences (see section 1 (1) of the 1986 Act
at paragraph 12 above). This link is in no way diminished by
the fact that, due to the operation of the statutory
presumptions concerning the extent to which the applicant has
benefited from trafficking, the court order may affect
proceeds or property which are not directly related to the
facts underlying the criminal conviction. While the reach of
the measure may be necessary to the attainment of the aims of
the 1986 Act, this does not alter the fact that its imposition
is dependent on there having been a criminal conviction.
30. In assessing the nature and purpose of the measure, the
Court has had regard to the background of the 1986 Act, which
was introduced to overcome the inadequacy of the existing
powers of forfeiture and to confer on the courts the power to
confiscate proceeds after they had been converted into other
forms of assets (see paragraph 11 above). The preventive
purpose of confiscating property that might be available for
use in future drug-trafficking operations as well as the
purpose of ensuring that crime does not pay are evident from
the ministerial statements that were made to Parliament at the
time of the introduction of the legislation (see paragraph 11
above). However it cannot be excluded that legislation which
confers such broad powers of confiscation on the courts also
pursues the aim of punishing the offender. Indeed the aims of
prevention and reparation are consistent with a punitive
purpose and may be seen as constituent elements of the very
notion of punishment.
31. In this connection, confiscation orders have been
characterised in some United Kingdom court decisions as
constituting "penalties" and, in others, as pursuing the aim
of reparation as opposed to punishment (see paragraphs 16 and
17 above). Although on balance these statements point more in
the direction of a confiscation order being a punitive
measure, the Court does not consider them to be of much
assistance since they were not directed at the point at issue
under Article 7 (art. 7) but rather made in the course of
examination of associated questions of domestic law and
procedure.
32. The Court agrees with the Government and the Commission
that the severity of the order is not in itself decisive,
since many non-penal measures of a preventive nature may have
a substantial impact on the person concerned.
33. However, there are several aspects of the making of an
order under the 1986 Act which are in keeping with the idea of
a penalty as it is commonly understood even though they may
also be considered as essential to the preventive scheme
inherent in the 1986 Act. The sweeping statutory assumptions
in section 2 (3) of the 1986 Act that all property passing
through the offender's hands over a six-year period is the
fruit of drug trafficking unless he can prove otherwise (see
paragraph 12 above); the fact that the confiscation order is
directed to the proceeds involved in drug dealing and is not
limited to actual enrichment or profit (see sections 1 and 2
of the 1986 Act in paragraph 12 above); the discretion of the
trial judge, in fixing the amount of the order, to take into
consideration the degree of culpability of the accused (see
paragraph 13 above); and the possibility of imprisonment in
default of payment by the offender (see paragraph 14 above) -
are all elements which, when considered together, provide a
strong indication of, inter alia, a regime of punishment.
34. Finally, looking behind appearances at the realities of
the situation, whatever the characterisation of the measure of
confiscation, the fact remains that the applicant faced more
far-reaching detriment as a result of the order than that to
which he was exposed at the time of the commission of the
offences for which he was convicted (see, mutatis mutandis,
the Campbell and Fell v. the United Kingdom judgment of
28 June 1984, Series A no. 80, p. 38, para. 72).
35. Taking into consideration the combination of punitive
elements outlined above, the confiscation order amounted, in
the circumstances of the present case, to a penalty.
Accordingly, there has been a breach of Article 7 para. 1
(art. 7-1).
36. The Court would stress, however, that this conclusion
concerns only the retrospective application of the relevant
legislation and does not call into question in any respect the
powers of confiscation conferred on the courts as a weapon in
the fight against the scourge of drug trafficking.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
37. Article 50 (art. 50) provides as follows:
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party."
A. Damage
38. The applicant claimed an unspecified amount of
compensation and/or restitution of the sum confiscated.
However, in the course of the hearing before the Court he
pointed out that the confiscation order had not yet been
enforced because of the present proceedings.
The Government, like the Delegate of the Commission, made
no observations.
39. The Court considers that in these circumstances the
matter is not ready for decision. The question must
accordingly be reserved and the further procedure fixed, with
due regard to the possibility of an agreement being reached
between the Government and the applicant (Rule 54 paras. 1
and 4 of Rules of Court A).
B. Costs and expenses
40. The applicant claimed £13,852.60 by way of costs and
expenses in respect of the Strasbourg proceedings.
Neither the Government nor the Delegate of the Commission
had any comments to make.
41. The Court considers that the sum is reasonable and that
the full amount claimed should be awarded less the sums paid
by way of legal aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 7
para. 1 (art. 7-1) of the Convention;
2. Holds that the respondent State is to pay, within three
months, 13,852 (thirteen thousand eight hundred and
fifty-two) pounds sterling and 60 (sixty) pence, together
with any value-added tax that may be chargeable, for
costs and expenses, less 10,420 (ten thousand four
hundred and twenty) French francs to be converted into
pounds sterling at the rate of exchange applicable on the
date of delivery of the present judgment;
3. Holds that the question of the application of Article 50
(art. 50) of the Convention is not ready for decision as
regards damage;
accordingly,
(a) reserves the said question in that respect;
(b) invites the Government and the applicant to submit,
within the forthcoming three months, their written
observations on the matter and, in particular, to
notify the Court of any agreement they may reach;
(c) reserves the further procedure and delegates to the
President of the Chamber the power to fix the same
if need be.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
9 February 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the
concurring opinion of Mr De Meyer is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE DE MEYER
There could be no doubt that the confiscation order
inflicted upon the applicant was a sanction following
conviction for a criminal offence, and that it had the nature
of a penalty.
Taking into consideration factors such as its "purpose",
its "characterisation under national law", its "severity", or
the elements involved in the making of the order referred to
in paragraph 33 of the judgment, could not be "relevant in
this connection".
I did not need these "other factors" (see paragraph 28 of
the present judgment) to reach a conclusion which was, in my
view, self-evident.