CEDH · CASELAW;REPORTS;ENG — 30 novembre 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 }      EUROPEAN COMMISSION OF HUMAN RIGHTS   Application No. 18465/91   Air Canada   against   the United Kingdom   REPORT OF THE COMMISSION   (adopted on 30 November 1993)   TABLE OF CONTENTS                                                                    Page   I.          INTRODUCTION            (paras. 1 - 12)   . . . . . . . . . . . . . . . . . . . . 1              A.     The application                  (paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1              B.     The proceedings                  (paras. 5 - 7) . . . . . . . . . . . . . . . . . . 1              C.     The present Report                  (paras. 8 - 12)   . . . . . . . . . . . . . . . . . 2   II.         ESTABLISHMENT OF THE FACTS            (paras.   13 - 26)   . . . . . . . . . . . . . . . . . . . 3              A.     The particular circumstances of the case                  (paras. 13 - 21) . . . . . . . . . . . . . . . . . 3              B.     Background to the events at issue                  (para. 22) . . . . . . . . . . . . . . . . . . . . 5              C.     Relevant domestic law and practice                  (paras. 23 - 26) . . . . . . . . . . . . . . . . . 7                    a. Customs and Excise Management Act 1979. . . . . 7                  b. Misuse of Drugs Act 1971. . . . . . . . . . . . 8                  c. Domestic Case-law . . . . . . . . . . . . . . . 8   III.        OPINION OF THE COMMISSION            (paras. 27 - 60) . . . . . . . . . . . . . . . . . . . .10              A.     Complaints declared admissible                  (para. 27) . . . . . . . . . . . . . . . . . . . .10              B.     Points at issue                  (para. 28) . . . . . . . . . . . . . . . . . . . .10              C.     As to Article 1 of Protocol No. 1. . . . . . . . .10                  (paras. 29 - 45)                    Conclusion (para. 45). . . . . . . . . . . . . . .13              D.     As to Article 6 of the Convention                  (paras. 46 - 58) . . . . . . . . . . . . . . . . .14                    Conclusion (para. 58). . . . . . . . . . . . . . .15              E.     Recapitulation                  (paras. 59 - 60) . . . . . . . . . . . . . . . . .16   DISSENTING OPINION of Mr. S. Trechsel, joined by Mrs. J. Liddy. . .17   DISSENTING OPINION of Mr. B. Marxer . . . . . . . . . . . . . . . .18   PARTLY DISSENTING OPINION of Mr. H. Danelius. . . . . . . . . . . .20   PARTLY DISSENTING OPINION of Mr. M. Pellonpää . . . . . . . . . . .21   APPENDIX I        : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .23   APPENDIX II       : DECISION ON THE ADMISSIBILITY. . . . . . . . . .24   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 company is a corporation incorporated under Canadian law.   It is a registered overseas company in the United Kingdom with a registered office in Hounslow, Middlesex.   The applicant company is represented before the Commission by Messrs. Neil McGilchrist and David Johnston, solicitors, of Messrs. Beaumont and Son, Solicitors, London.   3.     The application is directed against the United Kingdom whose Government are represented by their Agent, Mrs. Audrey Glover, Foreign and Commonwealth Office, London.   4.     The application concerns the seizure and forfeiture of an aircraft belonging to the applicant company.   It raises issues under Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.   B.     The proceedings   5.     The application was introduced on 2 May 1991 and registered on 8 July 1991.   On 8 January 1992, the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the complaint under Article 1 of Protocol No. 1.   On 7 December 1992 the Commission requested observations under Article 6 of the Convention.   6.     Following exchanges of the parties' observations on 25 March and 22 May 1992, 15 July and 16 September 1992, 22 and 26 January 1993 a hearing was held on 1 April 1993, at which 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 and Mr. I. Walton, HM Customs and Excise, Advisers; for the applicant: Mr. D. B. Johnston, Solicitor, Messrs. Beaumont & Son, Mr. R. Webb, Q.C., Counsel.   After the hearing, the application was declared admissible.   The decision on admissibility is appended to this Report.         Further observations, in reply to questions from the Commission, were submitted by the Government on 18 May and by the applicant company on 20 May 1993.   7.     After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   8.     The present Report has been drawn up by the Commission pursuant to Article 31 of the Convention and after deliberations and votes, the following members being present:                 MM.C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  H. DANELIUS            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER   9.     The text of the Report was adopted on 30 November 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   10.    The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   11.    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.   12.    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.     The particular circumstances of the case   13.    A Tristar aeroplane, worth over £60 million, and owned and operated by the applicant company, landed at London Heathrow Airport on 26 April 1987.   Its cargo included a container which, when discharged and 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, on 1 May 1987, officers of the Commissioners of Customs and Excise ("the Commissioners"), acting under powers conferred by Section 139 (1) of the Customs and Excise Management Act 1979 ("the 1979 Act"), seized the aircraft as liable to forfeiture under Section 141 (1) of the 1979 Act.   Later on the same day the Commissioners, acting under powers contained in Section 139 (5) and para. 16 of Schedule 3 of the 1979 Act, delivered the aircraft back to the applicant company on payment by   it of £50,000.   14.    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.    The Commissioners accordingly initiated proceedings for condemnation by the court as required by para. 6 of Schedule 3 to the 1979 Act.   15.    On 18 June 1988 an order was made on agreed terms that there should be a determination of the following preliminary issues:         "(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."   16.    Mr. Justice Tucker gave judgment on 7 November 1988 on the preliminary issues.   He did not accept that Parliament had intended the Commissioners to have power to forfeit in a case where, unknown to the operator, "and without any recklessness on his part, some evil-minded persons 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'."   He accordingly answered 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."   17.    The Commissioners appealed to the Court of Appeal, which gave its judgment on 14 June 1990.   18.    Lord Justice Purchas, giving the first judgment, summarised the arguments and considered the authorities and 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 para. 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."   19.    Lord Justice Balcombe and Sir David Croom-Johnson, agreeing with Lord Justice Purchas, gave separate judgments.   20.    The questions for consideration on the preliminary issue were accordingly answered as follows:         1.   Yes.         2.   No.         3.   No.         4.   No.   21.    Leave to appeal to the House of Lords was refused by the Court of Appeal, and on 7 November 1990 the House of Lords also refused to grant leave to appeal.   B.     The background to the events at issue   22.    On 15 July 1992, in the course of the proceedings before the Commission, the respondent Government submitted further observations which included details of matters which had given rise to concern about Air Canada's procedures at Heathrow Airport in the period before the seizure of the aircraft in the present case.   These observations provided inter alia as follows:   "(1)   Between November 1983 and September 1984, there was a history of       misdeliveries of consignments by Air Canada Transit Shed when Air       Canada were not in possession of Customs' authority to release       goods.   In each case, the goods were checked into the shed by Air       Canada staff and the goods subsequently disappeared.   These       deliveries concerned 2 packages (72 kgs) of 'Handicraft' in       November 1983, 15 packages (995 kgs) of 'Artificial Jewellery'       in May 1984, and 22 packages (924 kgs) of 'Handicraft' in       September 1984.   Each of these consignments is believed to have       contained drugs.   (2)    In March 1986, a consignment arrived from India (New Delhi)       consisting of 30 packages (1222 kgs) described as 'cotton       powerloom bed sheets' and addressed to Holiday Inns, Montreal,       Canada.   It was examined and found to contain 809 kgs of cannabis       resin.   Enquiries by Customs and Excise established that the       consignment had not been ordered, and would not have been sent       on to Canada.   (3)    On 24 May 1986, a consignment on an air waybill arrived from       Thailand (Bangkok) consisting of 15 packages (480 kgs), described       as machine parts and addressed to Düsseldorf (West Germany) in       transit.   Air Canada staff moved it landside.   It was taken out       of the controlled area.   It was later intercepted and was found       to contain 300 kgs of cannabis resin.   Two Air Canada staff were       arrested, charged and convicted (amongst other defendants) of the       fraudulent evasion of the prohibition on importation of a       controlled drug contrary to section 170 of the Customs and Excise       Management Act 1979.   The two members of the Air Canada staff       were sentenced to 8 and 10 years' imprisonment respectively.   (4)    On 11 June 1986, Customs and Excise wrote to Air Canada's Cargo       Terminal Manager setting out their dissatisfaction concerning the       smuggling of large quantities of dangerous drugs with the       assistance of Air Canada staff misusing procedures...   (5)    On 18 June 1986, the Cargo Terminal Manager replied, promising       to improve performance...   (6)    On 15 December 1986, Customs and Excise wrote to all airline       operators at Heathrow and Gatwick warning them that              'The Commissioners of Customs and Excise are seriously            concerned that drugs may be imported into the United            Kingdom concealed in the structure of aircraft or in            baggage or pseudo freight illicitly put into aircraft holds            in the guise of bona fide baggage or freight'.         [A copy of the letter of 15 December 1986 was included with the       Government's observations.   It stated that where an aircraft:              '(ii) is used for the carriage, handling, deposit or            concealment of anything liable to forfeiture,              the Commissioners will consider exercising their powers            under the law, including the seizure and forfeiture of            aircraft or the imposition of monetary penalties in lieu of            such forfeiture'.]   (7)    On 31 December 1986, Customs and Excise wrote again to Air       Canada, stating that breaches of procedure prior to the       11 June 1986 letter had led the Commissioners to conclude that       £2000 should be deducted from the Air Canada bond pursuant to       Section 152 of the Customs and Excise Management Act 1979 in lieu       of putting Air Canada's bond into suit in accordance with       Section 131 of the 1979 Act.   (8)    Also between November 1986 and January 1987, a consignment of       39 boxes of gas operated cigarette lighters was removed from the       Air Canada Transit Shed without proper authority.   Air Canada       failed to inform Customs and Excise of this for a considerable       time.   £5000 was deducted from the Air Canada bond pursuant to       section 152 of the Customs and Excise Management Act 1979 in lieu       of putting Air Canada's bond into suit in accordance with       Section 131 of the 1979 Act.   (9)    At the time of the arrival of the aircraft which is the subject       of these proceedings (26 April 1987), Air Canada had not yet       implemented increased security, adequately or at all.       Furthermore, it was ascertained that in relation to the container       which held the 331 kgs of cannabis resin, the airway bill number       was false, the Air Canada world-wide cargo computer did not hold       any details of the consignment, no airway bill was drawn up and       despatched in respect of the consignment, and the consignment was       hidden away and could have contained an explosive device."   C.     Relevant domestic law and practice         a.    Customs and Excise Management Act 1979   23.    Section 139 (1)         "(1) Any thing liable to forfeiture under the customs and excise       Acts may be seized or detained by any officer or constable or any       member of Her Majesty's armed forces ..."         Section 1 of the 1979 Act defines "officer" as meaning "a person       commissioned by the Commissioners".         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; ..."         b.    Misuse of Drugs Act 1971   24.    Section 3(1)         "Subject to subsection (2) below ... the importation of a       controlled drug ... [is] hereby prohibited."         Subsection (2) is not applicable in the present case.   Cannabis and cannabis resin are both controlled drugs by virtue of Section 2 of the Misuse of Drugs Act 1971.         c.    Domestic Case-law   25.    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 applicant's yacht had been seized 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.   26.    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.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   27.    The Commission has declared admissible the applicant company's complaints -   -      that the seizure of the aircraft in the present case, and its       subsequent return on conditions, violated its right to peaceful       enjoyment of its possessions as guaranteed by Article 1 of       Protocol No. 1 (P1-1) ; and   -      that the proceedings involved did not comply with the       requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   B.     Points at issue   28.    The issues to be determined are -   -      whether there has been a violation of Article 1 to Protocol No. 1       (P1-1) of the Convention;   -      whether there has been a violation of Article 6 para. 1       (Art. 6-1) of the Convention.   C.     As to Article 1 of Protocol No. 1 to the Convention   29.     Article 1 of Protocol No. 1 (P1-1) of the Convention 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 Commission recalls that Article 1 of Protocol No. 1 (P1-1) in substance guarantees the right to property (see Eur. Court H.R., Agosi judgment of 24 October 1986 [hereinafter "Agosi judgment"], Series A no. 108, p. 17, para. 48 with further references).   It comprises three distinct rules:   the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property;   the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions;   the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (see, inter alia, the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 24, para. 62).   However, the three rules are not "distinct" in the sense of being unconnected;   the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, Eur. Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 46, para. 106).   30.    The present case concerns not merely one set of events, but two interrelated sets of action.   First, there was the seizure of the applicant company's aircraft and the subsequent finding, in the condemnation proceedings, that it was liable to forfeiture.   Secondly, there was the decision by the Commissioners to return the aircraft to the applicant company on payment of £50,000.   To that extent the case resembles the case of Agosi, in which there was also a seizure and a decision by the Commissioners in the exercise of a statutory discretion.   This case is, however, not comparable with the Agosi case in all respects.   In the first place, the gold coins which were seized in that case were the goods whose importation was prohibited under domestic law.   There is no question in the present case of the aircraft itself being in any way "prohibited": it was seized pursuant to a statutory power to forfeit goods used for the carriage of, inter alia, cannabis.   Secondly, the Commissioners in Agosi refused to return the coins at issue, and did not impose any conditions for their return. The Commissioners in the instant case immediately stated that the aircraft would be returned on payment of £50,000, pursuant to their statutory discretion under Section 152 (b) of the 1979 Act to "restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under those Acts".   31.    The applicant company underlines that the allegations concerning security arrangements above (para. 22) were raised for the first time in the proceedings before the Commission, and they deny each and every one.   They point out that the domestic courts heard argument on the agreed basis that no fault lay with Air Canada, and that judicial review could in any event not have remedied the position.   The applicant company sees a violation of the Convention in the very width of the powers given to the Commissioners and exercised in the present case.   It sees no proportionality between the agreed assumptions, or any actual fact, and the seizure of the aircraft or the required payment of £50,000.   32.    The Government submit that the applicant company had been lax in its security arrangements in the past (particularly in relation to the illegal importation of drugs), and that since the events of the present case there have been no complaints about the company.   They point to the importance of the fight against the importation of dangerous drugs, and consider that the requirement that the applicant company pay £50,000 for return of its aircraft struck a fair balance between the interests of the company and the general interest.   They point out that the Commissioners only seize and set conditions on return of goods seized where they consider this is appropriate to encourage the adoption of higher security standards by the company concerned.   The Commissioners' specific concerns in the present case included the applicant company's record in security matters, the fact that the aircraft had come from Bombay, and the quantity of the drugs seized.   33.    The Commission must determine whether the material provision in the present case is the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1) or the second paragraph.   34.    The prohibition on the importation of cannabis resin in Section 3(1) of the Misuse of Drugs Act 1971 constitutes a control of the use of that substance.   The statutory powers of seizure, forfeiture and return (subject, possibly, to conditions) used in the present case must also be considered to be aimed at controlling the use of any "ship, aircraft, vehicle, animal, container ... or other thing whatsoever which has been used for the carriage ... of [prohibited drugs]" (Section 141 (1) of the 1979 Act).   35.    It is therefore the second paragraph of Article 1 (P1-1-2) which is applicable in the present case.   36.    The second paragraph of Article 1 (P1-1-2) recognises 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".   It has not been suggested in the present case that the seizure and return of the aircraft on payment of £50,000 was to secure the payment of a tax or other contribution or penalty.   37.    The Commission must however consider whether the control of use in the present case was in itself compatible with the terms of this provision and, if so, it must establish whether there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (Agosi judgment, p. 18, para. 52).   38.    In the Agosi case the Court in examining proportionality had regard to the procedural remedies available.   In this case the remedies were two.   First there was a challenge to the legality of the seizure. That avenue was unsuccessfully taken by the applicant company, the Court of Appeal ruling that whether the company was at fault was irrelevant.   Secondly there was the possibility of seeking judicial review of the Commissioners' decision to impose a condition of payment of £50,000 for the return of the aircraft.   This course the applicant company did not take.   Having regard to the finding of the Court of Appeal that the seizure of the aircraft as liable to forfeiture was lawful, the width of the Commissioners' discretion, the fact that £50,000 was only a small fraction of the aircraft's value, and indeed of the "street value" of the illegally imported cannabis resin, and that there had been criticisms of the applicant company's security, it is unlikely that such an application would have succeeded.   Nonetheless the existence of the remedy is an element to be taken into account in examining proportionality.   39.    The Commission notes that the powers to seize and forfeit goods which applied in the present case are remarkably broad.   In particular, it seems more than surprising that the innocent owner of a large aircraft should risk losing it if, as the applicant company's representative expressed the point before the Commission, one passenger on a scheduled flight should exceed the permitted allowance of duty- free spirits by one bottle.   The Commission must, however, look at all the facts of the case.   Although the Court of Appeal found that the liability to forfeiture was absolute, the applicant company is not in the position of having been deprived of the use of a valuable asset for any considerable time at all.   The "loss" to the applicant company was in fact limited to the payment of £50,000 required by the Commissioners.   A control of the use of aircraft in connection with the transport of prohibited goods cannot as such be seen as incompatible with the terms of the second paragraph of Article 1 (P1-1-2).   40.    As to the relationship of proportionality between the means employed and the aim sought to be pursued, here too the Commission must look at all the circumstances of the case.   In this context, the allegations referred to by the Government and relating to Air Canada's allegedly inadequate security arrangements must be considered.   The Commission is not in a position to assess the accuracy of the allegations, but accepts that these matters were in the minds of the Commissioners in seizing and returning the aircraft.   41.    Further, the Commission must consider the question of proportionality not on the basis of the seizure and subsequent condemnation of the aircraft, but on the basis of a payment of £50,000 for its return.   The applicant company has not given any indication of any particular hardship incurred in making the payment, save for administrative problems in producing a banker's draft swiftly, and the Commission finds none.   It is submitted by the Government that since the events in question there have been no further security problems with Air Canada.   42.    The Commission notes that it has not been contended by the Government that the applicant company was given reasons for the seizure of the aircraft on 1 May 1987, nor that any reasons were furnished for the imposition of the requirement of £50,000 for return of the aircraft.   Moreover, the Government do not contest that the reasons which the Commissioners of Customs and Excise had in mind were first put to the applicant company in the course of the present proceedings. The Government do, however, consider that questions of Air Canada's behaviour could have been raised on an application for judicial review of the Commissioners' exercise of their discretion to return the aircraft subject to conditions.   43.    The Commission finds that, although the seizure and retention of a valuable aircraft without the giving of reasons could raise grave problems of proportionality under Article 1 of Protocol No. 1 (P1-1) of the Convention, the present case relates rather to a payment of £50,000 being required for the return of the aircraft.   Although it is true that reasons were only given for the seizure and immediate return in the course of the present proceedings, it is apparent from the papers before the Commission that Air Canada had been put on notice that its security arrangements were regarded as not having been sufficient.   Whether those specific allegations are true is not for the Commission to decide.   44.    Finally, the Commission regards the requirement to pay £50,000 in the present case as a normal incident of the exercise of regulatory powers which generally accompany international air traffic.   Whilst the applicant company was not given reasons for the seizure and return at the time, if that were its chief concern then judicial review may well have helped to elucidate matters.   It states, however, that it is principally concerned with the fact of the seizure of the aircraft and the required payment of the money.   In the light of the reasons which have now been furnished by the respondent Government for the Commissioners' actions, and bearing in mind the limited nature of the prejudice to Air Canada and the margin of appreciation accorded to Governments under this head of Article 1 of Protocol No. 1 (P1-1), the Commission finds that the requirement to pay £50,000 for return of the aircraft which had been seized on 1 May 1987 was proportionate to the