CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 avril 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 18465/91                       by AIR CANADA                       against the United Kingdom         The European Commission of Human Rights sitting in private on 1 April 1993, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  H. DANELIUS            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 2 May 1991 by Air Canada against the United Kingdom and registered on 8 July 1991 under file No. 18465/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to:   -      the observations submitted by the respondent Government on       25 March 1992 and the observations in reply submitted by the       applicant company on 22 May 1992;           -      the further observations submitted by the Government on       15 July 1992 and the applicant company's reply of       16 September 1992;   -      the parties' further observations, submitted by the respondent       Government on 22 January and by the applicant company on       26 January 1993;   -      the hearing held on 1 April 1993;         Having deliberated;           Decides as follows:     THE FACTS         The applicant is a corporation incorporated under Canadian law. It is a registered overseas company in the United Kingdom with a registered office in Hounslow, Middlesex.   It is represented before the Commission by Messrs Neil McGilchrist and David Johnston, solicitors, of Messrs. Beaumont and Son, Solicitors, London.         The facts of the case, as submitted by the parties, may be summarised as follows:         A Tristar aeroplane, owned and operated by the applicant company, landed at London Heathrow Airport on 26 April 1987 where it discharged cargo including a container which, when opened, was found to contain 331 kgs of cannabis resin, of a "street value" of about £800,000.   The aeroplane was on a regular scheduled flight starting in Singapore and travelling to Toronto, landing en route at Bombay and Heathrow.   It carried both fare-paying passengers and cargo.   Subsequently the aircraft made further international flights which included return visits to the United Kingdom.   On one of these subsequent visits which occurred on Friday 1 May 1987, a bank holiday, representatives of the Commissioners of Customs and Excise ("the Commissioners") seized the aircraft as liable to forfeiture under Section 141 (1) of the Customs and Excise Management Act 1979 ("the 1979 Act").   Later on the same day, acting under powers contained in Section 139 (5) and para. 16 of Schedule 3 of the 1979 Act, the aircraft was delivered back to the applicant company on payment by the latter of £50,000.   On 20 May 1987 the applicant company's solicitors gave notice of a claim challenging the Commissioners' assertion that the aircraft was liable to forfeiture.   Accordingly, the Commissioners initiated condemnation proceedings as required by para. 6 of Schedule 3 to the 1979 Act.         On the hearing of a preliminary issue, it was accepted that the importation of cannabis resin was prohibited under Section 31 of the Misuse of Drugs Act 1971 and that the cannabis was liable to forfeiture by virtue of Section 49 (1)(b) of that Act.   It was also accepted that after landing on 26 April 1987 the aircraft had made several scheduled international flights including flights into the United Kingdom before it was seized on 1 May 1987.         The following questions were formulated for the trial of the preliminary issue:         "(1) Whether the facts (a) that cannabis resin was found in       container ULD 6075AC and (b) that that container had been       carried by Aircraft on Flight AC 859 on 26 April 1987 alone       constitute 'use of aircraft for the carriage of a thing       liable to forfeiture' within the meaning of Section 141       (1)(a) of the Customs and Excise Management Act 1979 such       as to justify its subsequent seizure on 1 May 1987.         (2) Whether it is a defence to the plaintiffs' [the       Commissioners'] claim in this action if the defendants [the       applicant company] establish that they did not know that       the aforesaid container contained cannabis resin and were       not reckless in failing so to discover.         (3) Whether it is a defence to the plaintiffs' claim in this       action if the defendants established that they could not with       reasonable diligence have discovered that cannabis had been       secreted and hidden or was being carried in the container nor       could they by the exercise of reasonable diligence have prevented       its being secreted and hidden in the container.         (4) Whether it is necessary for the plaintiffs to prove in       this action:              i. that the defendants knew or ought to have            known that cannabis resin was on board the            aircraft on 26 April 1987 and/or              ii. that the aircraft was on other than a            regular scheduled and legitimate flight."         Mr. Justice Tucker gave judgment on 7 November 1988 on the preliminary issue.   After considering the law and the authorities, he concluded:         "I cannot think that the draughtsman of the 1979 Act had       the present situation in mind.   I cannot believe that it       was the intention of Parliament that the innocent and bona       fide operator of an extremely valuable aircraft on an       international scheduled flight should be at risk of having       the aircraft forfeited if, unknown to him and without any       recklessness on his part, some evil-minded person smuggles       contraband or prohibited goods aboard the aircraft.   It       cannot sensibly be said that in such circumstances the       aircraft "has been used for the carriage".   What has been       used is no more than the opportunity afforded by the       availability of cargo space on an already scheduled flight       which was going to be made in any event."         Adopting the words of Lord Reid in the case of Warner v. the Metropolitan Police Commissioner ([1969] 2 QB 256), he said:         "I refuse to believe that Parliament can ever have intended       such an oppressive result."         He determined the preliminary issues as follows:         "1.   No.   Those facts alone do not constitute "use of the       aircraft for the carriage of a thing liable to forfeiture."         2.   Yes.   It is a defence.         3.   Yes.   It is a defence.         4.   It is necessary for the plaintiffs to prove in this       action:              (i) that the defendants knew or ought to have            known that cannabis resin was on board the            aircraft on 26 April 1987;   or (but not and)              (ii) that the aircraft was on other than a            regular scheduled and legitimate flight."         The Commissioners appealed to the Court of Appeal, which gave its judgment on 14 June 1990.         Lord Justice Purchas, giving the first judgment, described the question in the appeal thus:         "Does the aircraft or other vehicle container, etc. become       liable to forfeiture without more merely because it is       established that it was used for the carriage of prohibited       goods; or is it necessary before the forfeiture provisions of       Section 141 (1) can be invoked to establish that there was some       degree of knowledge in the owner or user or proprietor of the       aircraft;   or a reckless disregard in relation to what was being       carried on the aircraft?"         After summarising the arguments and considering the authorities, he found:         "The wording of Section 141 is, in my view, clear and       unambiguous and does not permit of any implication or       construction so as to import an element equivalent to mens       rea [criminal intent] nor does it involve in any way any       person in the widest sense whether as user, proprietor or       owner but depends solely on "the thing" being used in the       commission of the offence which rendered the goods liable       to forfeiture. ... In my judgment the mitigating provisions       included in Section 152 and paragraph 16 of Schedule 3,       indicate clearly that Parliament intended to trust to the       Commissioners the exercise of these matters of discretion.       Apart from this the exercise of this discretion will be       readily open to review by the court under R.S.C. Order 53.       This is a remedy which has developed very considerably in       recent years and was not so available at the time when the       earlier authorities were decided.   I would only comment       that there may well be a case to exclude inter-continental       or large passenger jet aeroplanes flying on scheduled       flights from Section 141 (1) in the same way as vessels       over a certain size have been excluded and to provide for       them in Section 142. ...         The expression 'which has been used for the carriage of the       thing so liable to forfeiture' is perfectly       straightforward.   To attempt to distinguish in some way the       carriage of the article in question on a scheduled flight       as opposed to a specially commissioned flight raises a       totally illogical distinction and flies in the face of the       ordinary meaning of the words in the section."         Lord Justice Balcombe and Sir David Croom-Johnson, agreeing with Lord Justice Purchas, gave separate judgments.         The questions for consideration on the preliminary issue were accordingly answered as follows:         1.   Yes.         2.   No.         3.   No.         4.   No.         Leave to appeal to the House of Lords was refused.         On 7 November 1990 the House of Lords also refused to grant leave to appeal.         On 15 July 1992, in the course of the proceedings before the Commission, the respondent Government submitted further observations which included a list of nine matters which had given rise to concern about Air Canada's procedures at Heathrow Airport.   These matters related to specific cases in which drugs had entered or were believed to have entered the United Kingdom via Air Canada, and to correspondence between Air Canada and the authorities involved.     Relevant domestic law and practice         Customs and Excise Management Act 1979         Section 139 (5)         "Subject to Sub-sections (3) and (4) and to Schedule 3 to       the Act any thing seized or detained under the Customs and       Excise Acts shall, pending the determination as to its       forfeiture or disposal, be dealt with and if condemned or       deemed to have been condemned or forfeited, shall be       disposed of in such manner as the Commissioners may       direct."         Section 141 (1)         "...where any thing has become liable to forfeiture under       the Customs and Excise Acts -              (a) any ship, aircraft, vehicle, animal,            container (including any article of passengers'            baggage) or other thing whatsoever which has            been used for the carriage, handling, deposit or            concealment of the thing so liable to            forfeiture, either at a time when it was so            liable or for the purposes of the commission of            the offence for which it later became so liable;            ... shall also be liable to forfeiture."         Section 142 (1)         "Notwithstanding any other provision of the Customs and       Excise Acts 1979, a ship of 250 or more tons register shall       not be liable to forfeiture under or by virtue of any       provision of       the Customs and Excise Acts 1979, unless the offence in respect       of or in connection with which the forfeiture is claimed -              (a) was substantially the object of the voyage            during which the offence was committed;   or              (b) was committed while the ship was under chase            by a vessel in the service of Her Majesty after            failing to bring to when properly summoned to do            so by that vessel."         Section 152         "The Commissioners may, as they see fit -              (a) stay, sist or compound any proceedings for            an offence or for the condemnation of any thing            as being forfeited under the Customs and Excise            Acts;   or              (b) restore, subject to such conditions (if any)            as they think proper, any thing forfeited or            seized under those Acts;   or              (c) after judgment mitigate or remit any            pecuniary penalty imposed under those Acts;            ..."         Schedule 3, para. 6         "Where notice of claim in respect of any thing is duly given in       accordance with [paragraph 5] the Commissioners shall take       proceedings for the condemnation of that thing by the court, and       if the court finds that the thing was at the time of seizure       liable to forfeiture the court shall condemn it as forfeited."         Schedule 3, para. 16         "Where any thing has been seized as liable to forfeiture       the Commissioners may at any time if they see fit and       notwithstanding that the thing has not yet been condemned,       or is not yet deemed to have been condemned, as forfeited -                (a) deliver it up to any claimant upon his            paying to the Commissioners such sum as they            think proper, being a sum not exceeding that            which in their opinion represents the value of            the thing, including any duty or tax chargeable            thereon which has not been paid; ..."         Domestic Case-law         Judicial review proceedings in respect of decisions of the Commissioners under Section 152 have been brought in two cases.   In R. v. Commissioners of Customs and Excise ex parte Haworth (judgment of 17 July 1985) the Commissioners had seized the applicant's yacht as liable to forfeiture.   He asked the Commissioners to exercise their discretion under Section 152 and return the yacht.   The High Court, after considering correspondence between the applicant and the authorities and describing the Commissioners' powers as "astonishing", found that the Commissioners had not properly exercised their discretion in that they had not given Mr. Haworth the opportunity to reply to matters held against him.   The decision did not affect the seizure of his yacht.         In R. v. Commissioners of Customs and Excise ex parte Tsahl (judgment of 11 December 1989) the Commissioners had decided to return diamonds which had been seized on payment of £228,190.   The High Court was prepared to interfere with the Commissioners' discretion only to the extent of requiring the Commissioners to take as date of valuation of the diamonds (for the purpose of determining the amount of the payment for their return) the date of return rather than the date of import.   COMPLAINTS         The applicant company considers that there is no proportionality between the width of Section 141 of the 1979 Act as applied in the present case and the aim sought to be pursued.   They allege a violation of Article 1 of Protocol No. 1 to the Convention in this respect.         The applicant company also alleges a violation of Article 6 of the Convention.   It refers to the dissenting opinion of Judge Pettiti in the Agosi case (Eur. Court H.R., Agosi judgment of 24 October 1986, Series A no. 108) according to which the applicant in that case was "denied the opportunity both of proving its innocence in criminal proceedings and of asserting its rights in civil proceedings".     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 2 May 1991 and registered on 8 July 1991.         On 6 January 1992 the Commission decided to communicate the application to the respondent Government and to request the parties to submit their written observations on the admissibility and merits of the application so far as it relates to Article 1 of Protocol No. 1 to the Convention.         The Government submitted their observations on 25 March 1992 and the applicant company submitted its observations in reply on 22 May 1992.   On 15 July 1992 the Government submitted further observations, to which the applicant replied on 16 September 1992.         On 7 December 1992 the Commission decided to invite the parties to an oral hearing on the admissibility and merits of the case.   It also decided to request them to submit further written observations on the admissibility and merits of the issues arising under Article 6 of the Convention.         The respondent Government submitted their observations on 22 January 1993 and the applicant company submitted its observations on 26 January 1993.           At the hearing, which was held on 1 April 1993, the parties were represented as follows:   For the Government         Mrs. A. F. GLOVER, Foreign and Commonwealth Office, Agent       Mr. D. PANNICK, Q.C., Counsel       Mrs. C. D. HUGILL, HM Customs and Excise, Adviser       Mr. I. WALTON, HM Customs and Excise, Adviser     For the Applicant         Mr. D. B. JOHNSTON, Solicitor, Messrs. Beaumont & Son       Mr. R. WEBB, Q.C., Counsel.         After the hearing the Commission deliberated and declared the application admissible.       THE LAW   1.     The applicant company alleges a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention which provides as follows:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of       his possessions except in the public interest and subject       to the conditions provided for by law and by the general       principles of international law.         The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it       deems necessary to control the use of property in       accordance with the general interest or to secure the       payment of taxes or other contributions or penalties."         The Government consider that the applicant company, by not applying to the High Court for judicial review of the decision of the Commissioners of Customs and Excise ("the Commissioners") to return its aircraft on payment of £50,000, has failed to exhaust domestic remedies.   In the alternative, the Government submit that the complaint is manifestly ill-founded as various matters had given rise to considerable concern about the procedures adopted by Air Canada and that these matters, taken together with the possibility of an application for leave to apply for judicial review, satisfy the requirements of Article 1 of Protocol No. 1 (P1-1) that a fair balance be struck between the conflicting interests in the case.         The applicant company submits that judicial review could not have adequately remedied its complaints under Article 1 of Protocol No. 1 (P1-1) as judicial review is of limited scope; in particular it does not include an examination of proportionality, it is a review rather than a decision-taking process, and it is discretionary.   It further submits that a fair balance has not been struck between the demands of the general interest and its own interests where, notwithstanding the assumption on which the condemnation proceedings were based that there was no fault by Air Canada, Air Canada was outwitted by a clever smuggler and deprived of its aeroplane and £50,000.         With regard to the Government's contention that the applicant company has not exhausted domestic remedies in connection with this complaint, the Commission first notes that, by requiring the Commissioners to institute condemnation proceedings and by pursuing those proceedings to the Court of Appeal and the House of Lords, the applicant company did everything possible to challenge the seizure as such.         The Commission next notes that the applicant's complaints do not relate to two separate incidents - one concerning the seizure and subsequent forfeiture of aircraft and the other concerning the requirement that they pay £50,000 for its return - but rather to the events as a whole.   It is clear from the two decided cases on Section 152 of the Customs and Excise Management Act 1979 (R. v. Commissioners of Customs and Excise ex parte Haworth, judgment of 17 July 1985; R. v. Commissioners of Customs and Excise ex parte Tsahl, judgment of 11 December 1989) that the courts would only deal with matter which would be peripheral to the central issues in the present case.   Thus in Haworth, where the Commissioners appear not to have exercised their Section 152 discretion, the High Court ordered the Commissioners to re- consider whether to exercise that discretion: the courts did not take any decision on the merits of the case at all.   In Tsahl, which concerned the return of forfeited diamonds for a fixed proportion of their value, the High Court was only prepared to intervene to the extent of taking a different date of valuation.   It is apparent from the general tenor of both these judgments, at least in cases involving the exercise of the Commissioners' discretion under Section 152 of the Customs and Excise Management Act, that the courts accept that the Commissioners have a remarkably wide discretion in deciding whether and on what conditions to restore things forfeited.   Even if, as in the Haworth case, the applicant company could have founded an application for judicial review on a procedural error, the effect would only have been to have required the Commissioners to reconsider the exercise of their discretion.   Judicial review would not have provided any remedy for the seizure and detention of the aircraft, in respect of which the applicants had exhausted the domestic remedies in the condemnation proceedings.   The applicants do not complain simply of the imposition of a condition for return of the aircraft.   Their complaint embraces the seizure, detention and return on conditions.         For all these reasons the Commission finds that it cannot be said that the applicant company has failed to exhaust domestic remedies in respect of its complaint under Article 1 of Protocol No. 1 (P1-1) to the Convention.   This finding does not prejudice any argument under Article 1 of Protocol No. 1 (P1-1) that the procedural requirements of that provision were met by the availability of judicial review.         As to the remaining issues under this complaint, the Commission finds that serious issues of fact and law are raised which can only be resolved by an examination of the merits.   The complaint cannot therefore be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.   2.     The applicant company, referring to the dissenting opinion of Judge Pettiti in Agosi (Eur. Court H.R., Agosi judgment of 24 October 1986, Series A no. 108, p. 26), also alleges a violation of Article 6 (Art. 6) of the Convention.         The respondent Government regard any statutory "interferences" with property under Sections 141 (1) and 152 of the Customs and Excise Management Act 1979 as matters which do not determine civil rights or obligations or criminal charges within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and contend that the provision therefore does not apply.   They consider that the condemnation proceedings in any event complied fully with Article 6 (Art. 6) of the Convention, and that, as the applicant company did not apply for judicial review of the requirement to pay £50,000 for return of its aircraft, it may not make hypothetical complaints about any such proceedings.         The Commission finds that this complaint, too, raises serious issues of fact and law which can only be resolved by an examination of the merits.   It cannot therefore declare it manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.             For these reasons, the Commission by a majority             DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case.       Secretary to the Commission                 President of the Commission           (H. C. KRÜGER)                             (C. A. NØRGAARD)