CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 mai 1995

.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 }        In the case of Air Canada 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. Gölcüklü,       Mr F. Matscher,       Mr B. Walsh,       Mr C. Russo,       Mr A. Spielmann,       Mr S.K. Martens,       Mr R. Pekkanen,       Sir John Freeland,         and also of Mr H. Petzold, Registrar,         Having deliberated in private on 23 November 1994 and 26 April 1995,         Delivers the following judgment, which was adopted on the last-mentioned date: _______________ Notes by the Registrar   1.   The case is numbered 9/1994/456/537.   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 11 March 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. 18465/91) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 (art. 25) by Air Canada, a company incorporated under Canadian law and registered as an overseas company in the United Kingdom, on 2 May 1991.         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 6 (art. 6) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention.   2.     In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that it wished to take part in the proceedings and designated the lawyers who would represent it (Rule 30).   3.     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 24 March 1994, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr B. Walsh, Mr C. Russo, Mr A. Spielmann, Mr S.K. Martens and Mr R. Pekkanen (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).   4.     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 lawyers 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 on 11 May 1994, the Registrar received the applicant's memorial on 29 August 1994 and the Government's memorial on 2 September 1994.   On 6 October 1994 the Secretary to the Commission indicated that the Delegate would submit his observations at the hearing.   5.     In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 21 November 1994.   The Court had held a preparatory meeting beforehand.         There appeared before the Court:   (a) for the Government   Mr M.R. Eaton, Foreign and Commonwealth Office,                 Agent, Mr D. Pannick, QC,                                            Counsel, Mr M. Maynard, HM Customs and Excise, Mr W. Parker, HM Customs and Excise,                         Advisers;   (b) for the Commission   Sir Basil Hall,                                              Delegate;   (c) for the applicant   Mr R. Webb, QC,                                               Counsel, Mr D. Clark,                                                Solicitor.         The Court heard addresses by Sir Basil Hall, Mr Webb and Mr Pannick and also replies to questions put by the President and another judge.   AS TO THE FACTS   I.     Particular circumstances of the case   A.     Background to litigation   6.     Between 1983 and 1987 a number of incidents gave rise to concern over the adequacy of the applicant company's security procedures at Heathrow Airport, London:         (1)   Between November 1983 and September 1984 a series of consignments, believed by Customs and Excise to have contained drugs, disappeared from the Air Canada transit shed.         (2)   In March 1986 809 kilograms of cannabis resin were discovered in a consignment from India (New Delhi).         (3)   In May 1986 a consignment from Thailand which had been taken out of the controlled area, was intercepted and found to contain 300 kilograms of cannabis resin.   Two Air Canada staff were subsequently convicted of offences connected to the importation of cannabis resin.         (4)   On 11 June 1986 Customs and Excise wrote to the applicant company's Cargo Terminal Manager expressing concern about the large quantities of drugs being smuggled into the country with the assistance of Air Canada staff.   In its reply Air Canada promised to improve its security.         (5)   On 15 December 1986 Customs and Excise wrote to all airline operators at Heathrow and Gatwick warning them about the possible penalties if illegal imports were discovered aboard their aircraft. The letter stated, inter alia, that where an aircraft was used for the carriage 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".         (6)   On 31 December 1986 Customs and Excise wrote again to the applicant company informing it that £2,000 would be deducted from Air Canada's bond pursuant to section 152 of the Customs and Excise Management Act 1979 ("the 1979 Act") for earlier breaches of security.         (7)   Between November 1986 and January 1987 another consignment was removed from the Air Canada transit shed without proper authority and the applicant company failed to inform Customs and Excise for a considerable time.   It was decided to deduct £5,000 from Air Canada's bond.   B.     Discovery of consignment of cannabis resin   7.     On 26 April 1987 a Tristar aircraft owned and operated by the applicant company and worth over £60 million, landed at Heathrow Airport, London, where it discharged cargo including a container which, when opened, was found to contain 331 kilograms of cannabis resin valued at about £800,000.   The airway bill number of the container was false, the applicant company's cargo computer did not hold any details of the consignment and no airway bill had been drawn up and despatched for it.         The aircraft was on a regular scheduled flight starting in Singapore and travelling to Toronto landing en route at Bombay and Heathrow.   It was carrying both fare-paying passengers and cargo.   C.     Action of the Customs and Excise Commissioners   8.     On the morning of 1 May 1987 officers of the Commissioners of Customs and Excise ("the Commissioners") acting under powers conferred by section 139 (1) of the 1979 Act seized the aircraft as liable to forfeiture under section 141 (1) of the same Act.   Passengers were waiting to board the aircraft.   9.     On the same day the Commissioners, acting under powers contained in section 139 (5) and paragraph 16 of Schedule 3 to the 1979 Act, delivered the aircraft back to the applicant company on payment of a penalty, namely a bankers' draft for £50,000.   10.    No reasons were given to the applicant company at the time for the decision either to seize the aircraft or to levy the penalty.   It was only during the course of proceedings before the European Commission of Human Rights that the Government offered the earlier security problems (see paragraph 6 above) as an explanation for the actions of the Commissioners.   D.     Proceedings before the High Court   11.    On 20 May 1987 the applicant company gave notice of a claim disputing that the aircraft was liable to forfeiture.   The Commissioners therefore brought condemnation proceedings before the court to confirm, inter alia, that the aircraft was liable to forfeiture at the time of seizure in accordance with paragraph 6 of Schedule 3 (see paragraph 18 below).   12.    On 18 June 1988 an order was made by a Master of the High Court with the consent of the parties that the preliminary issues to be decided were as follows:         "(1) Whether the facts that (a) cannabis resin was found in       container ULD6075AC; and (b) that container had been carried by       aircraft on Flight AC859 on 26 April 1987, alone constitute 'use       of the 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 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 establish 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."   13.    On 7 November 1988 giving judgment in the High Court ([1989] 2 Weekly Law Reports 589), Mr Justice Tucker 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."         He answered the preliminary questions 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."   E.     Proceedings before the Court of Appeal   14.    On 14 June 1990 the Court of Appeal overruled the decision of the High Court (Customs and Excise Commissioners v. Air Canada, [1991] 2 Queen's Bench Division 446).   Lord Justice Purchas stated as follows (at pp. 467-68):         "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 ... I would       only comment that there may well be a case to exclude       inter-continental or large passenger jet aircrafts 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 preliminary questions were answered as follows:         1.    Yes       2.    No       3.    No       4.    No   15.    Although the Court of Appeal condemned the aircraft as forfeited this did not have the effect of depriving Air Canada of ownership since it had paid the sum required for the return of the aircraft (see Schedule 3, paragraph 7 at paragraph 19 in fine below).   16.    In the course of his judgment Lord Justice Purchas added (at pp. 464 and 467):         "Mr Webb, for Air Canada, relying upon the above authorities,       made the following submissions ... that in effect if not in form       section 141 was a criminal provision under which severe penalties       could in practice be inflicted upon the owner or proprietor of       vessels, particularly large aircraft and that, therefore, under       the authorities just cited there should be implied in the terms       of that section a requirement that the Commissioners must       establish in their condemnation proceedings knowledge of some       sort in the airline by their servants or agents so as to comply       with the presumption of mens rea in criminal provisions.         ...         In my judgment, the answer to this submission which demonstrates       its fallacy is that the process which is invoked as a result of       sections 141 (1), 139 and Schedule 3 is by description a civil       process.   This of itself would not, if all other matters       militated to the contrary, prevent it from being in its nature       a criminal provision.   Mere words would not necessarily be       conclusive although the procedure in the civil courts outlined       in Schedule 3 must carry considerable weight.   The matter is,       however, put beyond argument by the earlier cases ... [which       decide that] section 141 and its predecessor sections in the       1952 Act and the 1876 Act provided a process in rem against any       vehicle, container or similar article which was in fact used in       the process of smuggling ..."         In their judgments, Lord Justice Balcombe and Sir David Croom-Johnson agreed that section 141 (1) did not create a criminal offence (at pp. 468 and 469).   17.    Leave to appeal to the House of Lords was refused by the Court of Appeal on that occasion and on 7 November 1990 by the House of Lords.   II.    Relevant domestic law and practice   A.     Customs and Excise Management Act 1979   18.    Liability to forfeiture                               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 purpose of the commission of the offence for which it            later became so liable; ... shall also be liable to            forfeiture."                           Schedule 3, paragraph 6         "Where notice of claim in respect of any thing is duly given in       accordance with [paragraphs 3 and 4 above] 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."   19.    Powers of Commissioners after seizure                               Section 139 (5)         "Subject to subsections (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 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, paragraph 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 ..."                           Schedule 3, paragraph 7         "Where any thing is in accordance with either of paragraphs 5       or 6 above condemned or deemed to have been condemned as       forfeited, then, without prejudice to any delivery up or sale of       the thing by the Commissioners under paragraph 16 ..., the       forfeiture shall have effect as from the date when the liability       to forfeiture arose."   B.     Judicial review   20.    The exercise of the powers conferred on the Commissioners of Customs and Excise are subject to judicial review.   The three traditional grounds for judicial review as described by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service ([1985] Appeal Cases 375 (House of Lords)) are illegality, irrationality and procedural impropriety.         "Illegality" means that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.         "Irrationality" or what is often also referred to as "Wednesbury unreasonableness" applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.         "Procedural impropriety" covers failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision, as well as failure to observe procedural rules that are expressly laid down even where such failure does not involve any denial of natural justice.   21.    In the case of R. v. Secretary of State for the Home Department, ex parte Brind ([1991] 1 Appeal Cases 696) the House of Lords held that lack of proportionality is not normally treated as a separate ground of review under English administrative law.         Lord Ackner, while considering that an administrative decision which suffered from a total lack of proportionality would be unreasonable in the Wednesbury sense, indicated that until Parliament incorporates the Convention into domestic law, there was no basis at present upon which the proportionality doctrine applied by the European Court of Human Rights could be followed by the courts of the United Kingdom (at pp. 762-63).         Lord Lowry (at p. 767) cited with approval the following statement from Halsbury's Laws of England (vol. 1 (1) at paragraph 78):         "Proportionality: The courts will quash exercises of       discretionary power in which there is not a reasonable       relationship between the objective which is sought to be achieved       and the means used to that end, or where punishments imposed by       administrative bodies or inferior courts are wholly out of       proportion to the relevant misconduct.   The principle of       proportionality is well established in European law, and will be       applied by English courts where European law is enforceable in       the domestic courts.   The principle of proportionality is still       at a stage of development in English law; lack of proportionality       is not usually treated as a separate ground of review in English       law, but is regarded as one indication of manifest       unreasonableness."   22.    Judicial review proceedings in respect of decisions of the Commissioners have been brought in two cases.   In R. v. Commissioners of Customs and Excise, ex parte Haworth (judgment of 17 July 1985), the High Court found that the Commissioners had acted unreasonably in that they had failed to give the owner of goods seized in a smuggling attempt the necessary information about matters held against him and no opportunity to reply thereto.         Similarly in R. v. Commissioners of Customs and Excise, ex parte Tsahl (judgment of 11 December 1989), the High Court required the Commissioners to take as the date of valuation of diamonds which they had seized, for the purpose of determining the amount of the payment for their return, the date of return rather than the date of import.   PROCEEDINGS BEFORE THE COMMISSION   23.    The applicant company lodged its application (no. 18465/91) with the Commission on 2 May 1991.   The applicant company complained that the seizure of its aircraft 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).   It further alleged that the proceedings involved did not comply with the requirements of Article 6 para. 1 (art. 6-1) of the Convention.   24.    The Commission declared the application admissible on 1 April 1993.   In its report of 30 November 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been no violation of Article 1 of Protocol No. 1 (P1-1) (nine votes to five) and that there had been no violation of Article 6 (art. 6) (eight votes to six).   25.    The full text of the Commission's opinion and of the 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 316-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 BY THE GOVERNMENT TO THE COURT   26.    The Government, in their memorial, requested the Court to decide and declare that the facts disclose no breach of the applicant's rights under Article 1 of Protocol No. 1 and Article 6 (P1-1, art. 6) of the Convention.   AS TO THE LAW   I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)   27.    The applicant company complained that the seizure of its aircraft and the subsequent requirement to pay £50,000 for its return amounted to an unjustified interference with the peaceful enjoyment of its possessions contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention which reads:         "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."   28.    It is not in dispute between those appearing before the Court that the matters complained of constituted an interference with the peaceful enjoyment of the applicant's possessions.   However there was disagreement as to whether there had been a deprivation of property under the first paragraph (P1-1) or a control of use under the second paragraph (P1-1).   A.     The applicable rule   29.    The Court recalls that Article 1 (P1-1) guarantees in substance the right of property and comprises three distinct rules.   The first, which is expressed in the first sentence of the first paragraph (P1-1) and is of a general nature, lays down the principle of peaceful enjoyment of property.   The second, in the second sentence of the same paragraph (P1-1), covers deprivation of possessions and makes it subject to certain conditions.   The third, contained in the second paragraph (P1-1), recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.   30.    However, the three rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, the AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 17, para. 48).   31.    The applicant considered that it had been deprived of its aircraft albeit for a temporary period and, subsequently, as a permanent measure, of the £50,000 that it was required to pay as a condition for the return of its property.   There had thus been a deprivation of possessions.   32.    For the Government, with whom the Commission agreed, this was not a case involving a deprivation of property since no transfer of ownership of the applicant's aircraft had taken place.   The seizure and demand for payment were to be seen as part of the system for the control of the use of an aircraft which had been employed for the import of prohibited drugs.   33.    The Court is of the same view.   It observes, in the first place, that the seizure of the aircraft amounted to a temporary restriction on its use and did not involve a transfer of ownership, and, in the second place, that the decision of the Court of Appeal to condemn the property as forfeited did not have the effect of depriving Air Canada of ownership since the sum required for the release of the aircraft had been paid (see paragraph 15 above).   34.    In addition, it is clear from the scheme of the legislation that the release of the aircraft subject to the payment of a sum of money was, in effect, a measure taken in furtherance of a policy of seeking to prevent carriers from bringing, inter alia, prohibited drugs into the United Kingdom.   As such, it amounted to a control of the use of property.   It is therefore the second paragraph of Article 1 (P1-1) which is applicable in the present case (see, mutatis mutandis, the above-mentioned AGOSI judgment, p. 17, para. 51).   B.     Compliance with the requirements of the second paragraph   35.    It remains to be decided whether the interference with the applicant's property rights was in conformity with the State's right under the second paragraph of Article 1 of Protocol No. 1 (P1-1) "to enforce such laws as it deems necessary to control the use of property in accordance with the general interest".   36.    According to the Court's well-established case-law, the second paragraph of Article 1 (P1-1) must be construed in the light of the principle laid down in the Article's (P1-1) first sentence (see, as the most recent authority, the Gasus Dosier- und Fördertechnik GmbH v. the Netherlands judgment of 23 February 1995, Series A no. 306-B, p. 49, para. 62).   Consequently, an interference must achieve a "fair balance" between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 (P1-1) as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aim pursued.   37.    In this regard the applicant considered that the interference with its property rights was not justified under Article 1 of Protocol No. 1 (P1-1).   In the first place, it complained that the power to forfeit the aircraft and to require payment as a condition of its return did not depend on showing that the owner, operator or airline was in some way at fault.   Indeed it pointed out that the proceedings brought before the United Kingdom courts were conducted on agreed assumptions predicated, in effect, on the fact that Air Canada had not been at fault.         Secondly, the relevant powers were exercised without a hearing before a judicial body.   In particular, there existed no adequate legal safeguards to protect Air Canada from the exercise of discretion by Customs and Excise officials.         Thirdly, the temporary seizure of the aircraft was disproportionate to any wrong that might have been done, as was the requirement to pay £50,000.   38.    For the Government, there were strong public interest reasons justifying the actions of the Commissioners in the present case.   There had been previous occasions when inadequate Air Canada procedures had led to the carriage of dangerous drugs.   Despite promises to improve their procedures they had failed to do so.   The events leading to the seizure of the aircraft had involved very serious lapses in security (see paragraph 6 above).   Moreover, it was noteworthy that following the events at issue there had been no further security problems with Air Canada.   The Commissioners had thus acted within the margin of appreciation conferred on them by the second paragraph of Article 1 of Protocol No. 1 (P1-1) in order to encourage the adoption of higher security standards by the applicant company.         In addition, it would have been open to Air Canada, if it believed that there was no reasonable basis for the decision to require the payment of money or that there had been an abuse of power, to challenge the exercise of the Commissioners' discretion by instituting proceedings for judicial review.   Had Air Canada done so the courts could have examined any disputed questions of fact as well as points of law.   Moreover the Commissioners, on the basis of the existing law (see paragraphs 20-22 above), would have been obliged to provide reasons for their actions.         In sum, in the Government's submission, a fair balance had been struck in the present case.   39.    The Commission also considered that judicial review proceedings could have been brought and that the actions taken were proportionate to the aim of controlling the use of aircraft involved in the importation of prohibited drugs.   40.    The Court first observes that it is clear from the decision of the Court of Appeal that both the seizure of the aircraft and the requirement of payment, in the absence of any finding of fault or negligence on the part of the applicant, were in conformity with the relevant provisions of the 1979 Act (see paragraphs 18-19 above).   41.    While the width of the powers of forfeiture conferred on the Commissioners by section 141 (1) of this Act is striking, the seizure of the applicant's aircraft and its release subject to payment were undoubtedly exceptional measures which were resorted to in order to bring about an improvement in the company's security procedures.   These measures were taken following the discovery of a container, the shipment of which involved various transport irregularities, holding 331 kilograms of cannabis resin (see paragraph 7 above).   Moreover, this incident was the latest in a long series of alleged security lapses which had been brought to Air Canada's attention involving the illegal importation of drugs into the United Kingdom during the period 1983-87 (see paragraph 6 above).   In particular, Air Canada - along with other operators - had been warned in a letter dated 15 December 1986 from the Commissioners that, where prohibited goods have been carried, they would consider exercising their powers under the 1979 Act including the seizure and forfeiture of aircraft.   42.    Against this background there can be no doubt that the measures taken conformed to the general interest in combating international drug trafficking.   43.    The applicant, however, claimed that no reasons had been given by the Commissioners, at the time of the events complained of, to justify their actions and that they had been, in effect, judge and jury in their own cause.   It was only in the course of the proceedings before the Commission that reference was made to earlier security shortcomings (see paragraph 10 above).   44.    The Court cannot accept this submission.   It notes that it would have been open to Air Canada to have instituted judicial review proceedings to challenge the failure of the Commissioners to provide reasons for the seizure of the aircraft or indeed to contend that the acts of the Commissioners constituted an abuse of their authority. Although not an appeal on the merits of the case, the availability and effectiveness of this remedy in respect of the exercise of discretion by the Commissioners under their statutory powers has already been noted by the Court in its AGOSI judgment (loc. cit., pp. 20-21, paras. 59-60).         Moreover, although the provision of reasons from the outset would have contributed to clarifying the situation, the applicant could not have been in any real doubt as to the reasons for the Commissioners' decision having regard to the numerous incidents concerning the various security lapses and irregularities which had occurred in the past (see paragraph 6 above) - which the applicant has not sought to deny in the proceedings before the Court - as well as the warning letter from the Commissioners which had been sent, inter alia, to Air Canada pointing out that forfeiture of an aircraft was a possibility (see paragraph 6 at point (5) above).   45.    The applicant next contended that judicial review proceedings only enabled the courts to examine the "reasonableness" of the exercise of discretion.   It pointed out that the courts have held that the principle of proportionality was not part of English law (see paragraph 21 above).   46.    The Court recalls that on a previous occasion it reached the conclusion that the scope of judicial review under English law is sufficient to satisfy the requirements of the second paragraph of Article 1 of Protocol No. 1 (P1-1).   In particular, it is open to the domestic courts to hold that the exercise of discretion by the Commissioners was unlawful on the grounds that it was tainted with illegality, irrationality or procedural impropriety (see paragraph 20 above and the above-mentioned AGOSI judgment, ibid.).         Furthermore, there have been cases in which the courts have found that the Commissioners had acted unreasonably in the exercise of their powers under the 1979 Act (see paragraph 22 above).         There is no reason to reach a different conclusion on this point in the present case notwithstanding the qualified exclusion of the proportionality principle as a separate ground of review (see paragraph 21 above).   47.    Finally, taking into account the large quantity of cannabis that was found in the container, its street value (see paragraph 7 above) as well as the value of the aircraft that had been seized, the Court does not consider the requirement to pay £50,000 to be disproportionate to the aim pursued, namely the prevention of the importation of prohibited drugs into the United Kingdom.   48.    Bearing in mind the above, as well as the State's margin of appreciation in this area, it considers that, in the circumstances of the present case, a fair balance was achieved.   There has thus been no violation of Article 1 of Protocol No. 1 (P1-1).   II.    ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE       CONVENTION   49.    The applicant further complained that it was, in effect, subjected to a criminal penalty.   In the alternative, the seizure of the aircraft amounted to a determination, without court proceedings, of the company's civil rights and obligations in breach of Article 6 para. 1 (art. 6-1), the relevant part of which reads:         "In the determination of his civil rights and obligations or of       any criminal charge against him, everyone is entitled to a fair       ... hearing ... by an independent and impartial tribunal ..."   A.     Applicability         1.    Criminal charge   50.    Air Canada considered that it had been, in effect, fined by the Commissioners and that neither the condemnation proceedings nor the theoretical possibility of judicial review satisfied the requirements of Article 6 para. 1 (art. 6-1).   51.    The Government, on the other hand, with whom the Commission agreed, pointed out that under domestic law no criminal charges had been brought and that the criminal courts had not been involved in the matter.   52.    The Court agrees with the Government's observation.   It is also noteworthy that the Court of Appeal specifically rejected the argument made by counsel for Air Canada that section 141 of the 1979 Act was tantamount to a criminal provision (see paragraph 16 above).   In this connection, the Court of Appeal pointed out that the description of the relevant provisions as being "civil" did not preclude it from finding that a provision was, in effect, "criminal" in nature.   However, the matter was resolved with reference to earlier cases which decided that section 141 provided a process in rem against, inter alia, any vehicle used in smuggling.         The Court is, for the same reasons, similarly persuaded.         Moreover, the factors referred to above - the absence of a criminal charge or a provision which is "criminal" in nature and the lack of involvement of the criminal courts - taken together with the fact that there was no threat of any criminal proceedings in the event of non-compliance, are sufficient to distinguish the present case from that of Deweer v. Belgium (judgment of 27 February 1980, Series A no. 35) where the applicant was obliged to pay a sum of money under constraint of the provisional closure of his business in order to avoid criminal proceedings from being brought against him.   53.    It is further recalled that a similar argument had been made by the applicant in the AGOSI case (loc. cit.).   On that occasion the Court held that the forfeiture of the goods in question by th