CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 31209/96                       by Ronald J. M. TAYLOR                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs. J. LIDDY, President            MM.   M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. MARXER                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            Mrs. M. HION            Mr.   R. NICOLINI              Mrs. M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 28 February 1996 by Ronald J.M. TAYLOR against the United Kingdom and registered on 29 April 1996 under file No. 31209/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen, born in 1936. He is currently detained in Swaleside prison, on the isle of Sheppey in Kent.        The facts of the case, as they have been submitted by the applicant, can be summarised as follows:   A.    Particular circumstances of the case        On 2 June 1986 the applicant, having pleaded guilty, was convicted by the Central Criminal Court of drug trafficking between 1 January 1974 and 17 September 1979. He was sentenced to six years' imprisonment and fined £234,750.        On 12 January 1987 section 1 of the Drugs Trafficking Offences Act 1986 came into force providing for the confiscation of the proceeds of drug-related offences.        On 1 November 1994 the Crown Court at Chelmsford found the applicant guilty of drug trafficking between 1 February 1990 and 20 April 1993 and sentenced him to ten years' imprisonment. The court also made a confiscation order under the Drugs Trafficking Offences Act 1986 in the sum of £15,311,729.19 which covered proceeds from drug trafficking relating to the period between 1 January 1974 and 17 September 1979 and the period between 1990 and 1993. In order to take into account the proceeds relating to the period between 1 January 1974 and 17 September 1979, the court relied on the applicant's own admission that he had benefited from drug trafficking during that period of time and had lived comfortably off the proceeds. In order to take into account the proceeds relating to the second period, the court relied on the evidence tendered during the proceedings. The court further ordered that in default of payment of this sum the applicant would be liable to serve a consecutive four years' prison sentence.        The applicant applied for leave to appeal against the confiscation order, invoking, inter alia, Article 7 of the Convention. On an unspecified date, a single judge gave the applicant leave to appeal.        The Court of Appeal delivered its judgment on 1 December 1995. The court considered that the Drugs Trafficking Offences Act gave it the power to confiscate proceeds from drug-trafficking which related, inter alia, to the period between 1 January 1974 and 17 September 1979. Moreover, the applicant's case was clearly distinguished from Welch v. United Kingdom (Eur. Court HR, judgment of 26 February 1996, Series A no. 307). As opposed to Welch, the applicant, when committing the offences which enabled the court to make the confiscation order, i.e. drug trafficking between 1 February 1990 and 20 April 1993, was aware of the possibility that such an order could be made, since the Drugs Trafficking Offences Act 1986 had already come into force. As a result, the court rejected the applicant's appeal.   B.    Relevant domestic law        The Drugs Trafficking Offences Act 1986 provides as follows:        "1. Confiscation orders        (1) ... where a person appears before the Crown Court to be      sentenced in respect of one or more drug trafficking offences      (and has not previously been sentenced or otherwise dealt with      in respect of his conviction for the offence or, as the case may      be, any of the offences concerned), the court shall act as      follows:        (2) The court shall first determine whether he has benefited from      drug trafficking.        (3) For the purposes of this Act, a person who has at any time      (whether before or after the commencement of this section)      received any payment or other reward in connection with drug      trafficking carried on by him or another has benefited from drug      trafficking.        (4) If the court determines that he has so benefited, the court      shall, before sentencing ... determine ... the amount to be      recovered in his case by virtue of this section.        (5) The court shall then in respect of the offence or offences      concerned -        (a) order him to pay that amount ...        ...        2. Assessing the proceeds of drug trafficking        (1) For the purposes of this Act -        (a) any payments or others rewards received by a person at any      time (whether before or after the commencement of section 1 of      this Act) in connection with drug trafficking carried on by him      or another are his proceeds of drug trafficking, and        (b) the value of his proceeds of drug trafficking is the      aggregate of the values of the payments or other rewards.        (2) The court may, for the purpose of determining whether the      defendant has benefited from drug trafficking and, if he has, of      assessing the value of his proceeds of drug trafficking, make the      following assumptions, except to the extent that any of the      assumptions are shown to be incorrect in the defendant's case.        (3) Those assumptions are -        (a) that any property appearing to the court -        (i)    to have been held by him at any time since his conviction,            or        (ii)   to have been transferred to him at any time since the            beginning of the period of six years ending when the            proceedings were instituted against him,            was received by him, at the earliest time at which he            appears to the court to have held it, as a payment or            reward in connection with drug trafficking carried on by            him,        (b) that any expenditure of his since the beginning of that      period was met out of payments received by him in connection with      drug trafficking carried on by him, and        (c) that, for the purpose of valuing any property received or      assumed to have been received by him at any time as such a      reward, he received the property free of any other interests in      it ..."   COMPLAINTS        The applicant complains under Article 7 of the Convention that the use by the Chelmsford Crown Court of the power to make a confiscation order in respect of proceeds from drug trafficking relating to the period between 1 January 1974 and 17 September 1979 amounts to a penalty for offences committed prior to the entry into force of section 1 of the Drugs Trafficking Offences Act 1986.   THE LAW        The applicant complains that the confiscation order, insofar as it concerns proceeds relating to the period between 1 January 1974 and 17 September 1979, is a penalty imposed retroactively in breach of Article 7 (Art. 7) of the Convention.        Article 7 para. 1 (Art. 7-1) of the Convention provides as follows:        "No one shall be held guilty of any criminal offence on account      of any act or omission which did not constitute a criminal      offence under national or international law at the time when it      was committed. Nor shall a heavier penalty be imposed than the      one that was applicable at the time the criminal offence was      committed".        The Commission recalls that, in accordance with the Court's Welch v. the United Kingdom judgment, a confiscation order could amount to a "penalty" within the meaning of Article 7 (Art. 7) of the Convention (supra, p. 14, para. 36). It also recalls that the Court reached the conclusion that the confiscation order imposed in Welch constituted such a penalty given the sweeping statutory assumptions in section 2 para. 3 of the 1986 Act that all property passing through the offender's hands over a six-year period was the fruit of drug trafficking unless he could prove otherwise, the fact that the confiscation order was directed to the proceeds involved in drug dealing and was not limited to actual enrichment or profit, the discretion of the trial judge, in fixing the amount of the order, to take into consideration the degree of culpability of the accused and the possibility of imprisonment in default of payment by the offender.        The Commission, taking the same elements into account, considers that the confiscation order imposed on the applicant also constitutes a "penalty" within the meaning of Article 7 (Art. 7) of the Convention. Having reached this conclusion, the Commission must next determine whether this was a penalty imposed for the offences of which the applicant had been found guilty in 1986.        The Commission notes that, according to the Drugs Trafficking Offences Act, a confiscation order cannot be made unless there is a criminal conviction. However, the order may affect proceeds which are not directly related to the facts underlying a criminal conviction (see Welch v. United Kingdom judgment, supra, p. 13, para. 29). In the circumstances of the case, the conviction which activated the power of the Chelmsford Crown Court to make a confiscation order was that of 1 November 1994. This conviction concerned drug trafficking which had occurred between 1 February 1990 and 20 April 1993. However, under the Drugs Trafficking Act, the Crown Court could order the confiscation also of proceeds which did not relate to the facts of which it had convicted the applicant and, as a result, the Crown Court was able to take into account also the proceeds relating to drug trafficking between 1 January 1974 and 17 September 1979.        The fact that the applicant had already been convicted of drug trafficking during this period of time was immaterial for the power of the Crown Court to make the confiscation order. This transpires clearly from the Act which links the power of the court to make a confiscation order to the accused's having "benefited" from drug trafficking and not to the accused's having been convicted. According to the Act a person may be considered to have "benefited" from drug trafficking without having been convicted, while a person who has been convicted is not necessarily considered to have benefited. Following this logic, the Crown Court, in order to make the confiscation order, did not rely on the applicant's previous conviction but on his own admission that he had "benefited" from drug trafficking between 1 January 1974 and 17 September 1979.        In these circumstances, the Commission considers that, although the confiscation order also concerned proceeds from drug trafficking between 1 January 1974 and 17 September 1979, this was not a "penalty" for the offences committed by the applicant between 1 January 1974 and 17 September 1979, but for the offences he committed between 1990 and 1993. When committing these offences, however, the applicant was aware that he was liable to a confiscation order which could have concerned earlier proceeds, since the Drugs Trafficking Offences Act 1986 had already come into force. As a result, the Commission considers that no appearance of a violation of Article 7 (Art. 7) of the Convention is disclosed.        It follows that the application is manifestly ill-founded and that it must be rejected as inadmissible in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber