CEDH · CASELAW;REPORTS;ENG — 15 octobre 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. 17440/90                             Peter Welch                               against                         the United Kingdom                      REPORT OF THE COMMISSION                    (adopted on 15 October 1993)                          TABLE OF CONTENTS                                                             page   I.    INTRODUCTION      (paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-13) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 14-18). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 19-36) . . . . . . . . . . . . . . . . . . . . .3        A.    Particular circumstances of the case           (paras. 19-24). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 25-36). . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 37-67) . . . . . . . . . . . . . . . . . . . . .8        A.    Complaint declared admissible           (para. 37). . . . . . . . . . . . . . . . . . . . .8        B.    Point at issue           (para. 38). . . . . . . . . . . . . . . . . . . . .8        C.    Article 7 of the Convention           (paras. 39-54). . . . . . . . . . . . . . . . . . .8             CONCLUSION           (para. 54). . . . . . . . . . . . . . . . . . . . 11             DISSENTING OPINION of MM. J. C. Soyer, Martinez           Mrs. Liddy, MM. Geus, and Marxer   . . . . . . . . 12             DISSENTING OPINION of Mr. H. G. Schermers . . . . 14   APPENDIX I      HISTORY OF THE PROCEEDINGS . . . . . . . . . 15   APPENDIX II     DECISION ON THE ADMISSIBILITY. . . . . . .15-23   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 is a British citizen born in 1938 and currently serving a prison sentence in HM Prison Long Lartin.   He is represented before the Commission by Mr. Ben Emmerson, counsel and Mr. Jonathan Cooper, solicitor, practising in Evesham.   3.    The application is directed against the United Kingdom.   The respondent Government are represented by their Agent, Mr. Huw Llewellyn, of the Foreign and Commonwealth Office.   4.    The case concerns the applicant's complaint under Article 7 of the Convention that the confiscation order imposed upon him constituted the imposition of a retrospective criminal penalty.   B.    The proceedings   5.    The application was introduced on 22 June 1990 and registered on 19 November 1990.   6.    On 7 October 1991, the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.   7.    The Government submitted their written observations on 20 February   1992. The applicant submitted his observations on 28 May 1992.   8.    On 10 April 1992, the Commission granted the applicant legal aid.   9.    On 31 August 1992, the Commission decided to invite the parties to an oral hearing on the admissibility and merits of the application.   10.   At the hearing, which was held on 12 February 1993, the Government were represented by Mr. Huw Llewellyn, Agent, Mr. Alan Moses, Q.C. and Ms. Melanie Carter and Mr. Peter Vallance, advisers from the Home Office. The applicant was represented by Mr. Ben Emmerson, counsel and Mr. Jonathan Cooper, solicitor.   11.   On 12 February 1993, the Commission declared admissible the applicant's complaint under Article 7 of the Convention. The remainder of the application was declared inadmissible. The parties were then invited to submit any additional observations on the merits of the application.   12.   The Government submitted further observations on the merits on 6 April 1993 and the applicant submitted further observations on 8 April 1993.   13.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission finds that there is no basis on which a friendly settlement can be effected.   C.    The present Report   14.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   S. TRECHSEL, Acting President                   A. WEITZEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   J. C. SOYER                   H. G. SCHERMERS              Mrs. G. H. THUNE              Mr.   F. MARTINEZ              Mrs. J. LIDDY              MM.   J.-C. GEUS                   B. MARXER                   G.B. REFFI   15.   The text of the Report was adopted by the Commission on 15 October 1993 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   16.   The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is        1)   to establish the facts, and        2)   to state an opinion as to whether the facts found disclose          a breach by the State concerned of its obligations under          the Convention.   17.   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.   18.   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.    Particular circumstances of the case   19.   The applicant was arrested on 3 November 1986 for suspected drugs offences.   He was charged on 4 November 1986 in respect of offences concerning the importation of cannabis alleged to have occurred between 1 January 1986 and 3 November 1986.   On 24 February 1987, the applicant was charged with intent to supply cocaine and on 5 May 1987 a further charge was brought, relating to possession of cocaine, alleged to have been committed on 3 November 1986.   20.   On 24 August 1988, the applicant was found guilty on five counts and sentenced to 22 years' imprisonment in respect of two offences and 20 years' imprisonment in respect of three offences.   21.   The judge also imposed on the applicant a confiscation order of £66,914 under the Drug Trafficking Offences Act 1986 ("the 1986 Act") in default of the payment of which the applicant would be liable to serve a consecutive 2-year prison sentence. The operative provisions of the 1986 Act had come into force on 12 January 1987.   22.   The applicant applied to a single judge of the Court of Appeal (Criminal Division) for leave to appeal against conviction and sentence.    He was granted leave to appeal against sentence only.   His application for leave to appeal against conviction was lodged outside the 28 day time-limit. On appearing before the full Court of Appeal on 11 June 1990 the applicant applied for an extension of time so as to apply for leave to appeal against conviction.   23.   The applicant's reasons for his failure to apply within the proper time were that, although he had always been dissatisfied with his conviction, he did not appreciate, until the time-limit for an application had expired, that the reasons for his dissatisfaction constituted proper grounds for applying for leave to appeal.   24.   On 11 June 1990, following a hearing at which the applicant was represented and present,the Court of Appeal held that the security precautions in evidence at the applicant's trial did not in any way render the verdict unsafe or unsatisfactory and his application was dismissed. In respect of the applicant's appeal against sentence, the Court of Appeal reduced the applicant's overall sentence by 2 years. In respect of the confiscation order, it held:        "The only matter in issue was the value of the appellant's      villa in Portugal. Two sums were put forward at the      material time. One was £40 000 and the other was £47 000.      The £47 000 figure was put forward by Mr. Woodhall, the      officer from Customs and excise who had charge of these      investigations. However evidence was given by a Mr.      Richardson, who was acquainted with this property and      indeed he had personally offered to purchase the villa for      £47 000. ... He said that he was aware that when he made      that offer that the total purchase price was in excess of      the then value of the villa, but he was prepared to go over      the odds, so to speak, because of the no interest terms      that had been offered. He went on to say that at the time      that the confiscation order was made, the villa was      currently valued at approximately £40 000.        The suggestion is that the Judge was in error when he based      himself on the earlier evidence of £47 000, and the      prosecution do not seek to uphold the Judge's view of the      matter. Therefore what we do is to reduce the total amount      of the confiscation by £7 000, which will result in the      figure of £59 914 being the subject of the order."   B.    Relevant domestic law and practice   Background to the Drug Trafficking Act 1986   25.   Following the arrest of drug trafficking suspects in an operation known as "Operation Julie", the prosecution obtained before the Crown Court following conviction of the defendants an order of forfeiture of their profits. The defendants appealed successfully to the House of Lords which held that the forfeiture power covered assets and monies used for the commission of the specific offences but not the proceeds of the drug trafficking generally (R. v. Cuthbertson 1980 3 WLR 89).   26.   As a result, the Hodgson Committee was set up to consider whether courts should be given the power to confiscate the proceeds of crime and if so, the limits and enforcement of that power. In its report in 1984 "Profits of crime and their recovery", the Committee recommended that criminal courts should have the power to order the confiscation of the proceeds of an offence for which a person has been convicted and that the object of such an order should be to restore the status quo ante the offence.   27.   When the subsequent Bill was introduced by the Secretary of State on its second reading in the House of Commons, he stated inter alia:        "We intend to help guard against the possibility that the profits      from one trafficking operation will be used to finance others,      and, not least, to remove the sense of injury which ordinary      people are bound to feel at the idea of traffickers, who may have      ruined the lives of children, having the benefit of profits they      made doing so." (90 House of Commons Official Report 242)   The Drug Trafficking Act 1986   28.   Section 1 of the 1986 Act 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 other rewards received by a person at           any time (whether before or after the commencement of           section 1 of this Act) in connection with drug trafficking           carried on by him or another are his proceeds of drug           trafficking, and             (b) the value of his proceeds of drug trafficking is the           aggregate of the values of the payments or other rewards.        (2) The court may, for the purpose of determining whether the      defendant has benefited from drug trafficking and , if he has,      of assessing the value of his proceeds of drug trafficking, make      the following assumptions, except to the extent that any of the      assumptions are shown to be incorrect in the defendant's case.        (3) Those assumptions are-             (a) that any property appearing to the court-                  (i) to have been held by him at any time since his                conviction, or                (ii) to have been transferred to him at any time since                the beginning of the period of six years ending when                the proceedings were instituted against him,                  was received by him, at the earliest time at which he                appears to the court to have held it, as a payment or                reward in connection with drug trafficking carried on                by him,             (b) that any expenditure of his since the beginning of that           period was met out of payments received by him in           connection with drug trafficking carried on by him, and             (c) that, for the purpose of valuing any property received           or assumed to have been received by him at any time as such           a reward, he received the property free of any other           interests in it...        3 Amount to be recovered under confiscation order             (1) Subject to subsection (3) below, the amount to be           recovered in the defendant's case shall be the amount the           Crown Court assesses to be the value of the defendant's           proceeds of drug trafficking.             (2) If the court is satisfied as to any matter relevant for           determining the amount that might be realised at the time           the confiscation order is made (whether by an acceptance           under section 3 of the Act or otherwise), the court may           issue a certificate giving the court's opinion as to the           matters concerned and shall do so if satisfied as mentioned           in sub-section (3) below.             (3) If the court is satisfied that the amount that may be           realised at the time of the confiscation order is made is           less than the amount the court assesses to be the value of           his proceeds of drug trafficking, the amount to be           recovered in the defendant's case under the confiscation           order shall be the amount appearing to the court to be the           amount that might be so realised."   28.   The Act received the royal assent on 8 July 1986.   Its provisions were brought into force by various orders of the Secretary of State. With the exception of Section 1(3) (which entered into force on 30 September 1986) Section 1 entered into force on 12 January 1987.   29.   Section 38(4) of the 1986 Act provides:        "References in this Act to offences include a reference to      offences committed   before the commencement of section 1 of this      Act;   but nothing in this Act imposes any duty or confers any      power on any court in or in connection with proceedings against      a person for a drug trafficking offence instituted before the      commencement of that section."   Imprisonment in default   30.   After a confiscation order has been made, the Crown Court decides upon the period of imprisonment which the offender has to serve if he fails to pay. This will not be activated until after such time within which the Court has ordered the offender to pay. The maximum periods of imprisonment are set down in Section 31 of the Powers of Criminal Courts Act 1973. The maximum period for an order between the sums of 50,000 and 100,000 pounds sterling is 2 years.   Application of the legislation by the courts   31.   The domestic courts have commented on the draconian nature of the confiscation provisions in numerous cases and have often referred to the orders, expressly or impliedly, as constituting penalties.   32.   In the case of Dickens (1990) 91 CAR 164, the Court of Appeal held that in the proceedings before the court concerning assessment of proceeds the onus of proof to the criminal standard was on the prosecution to establish that the defendant had benefitted from drug trafficking and to what extent. The Lord Chief Justice stated: "In our judgment the context of the Act and the nature of the penalties which are likely to be imposed   make it clear that the standard of proof required is the criminal standard, namely proof so that the judge feels sure, or beyond reasonable doubt..."   33.   In the case of Porter (1990) 12 CAR(S) 377, the Court of Appeal held that a trial judge could not impose a joint confiscation order on co-defendants: "There must be certainty in sentencing. A convicted person is entitled to know the extent of his monetary liability; a fortiori when he is liable to lose his liberty if he fails to discharge the monetary penalty."   34.   In the case of In Re Lorenzo Barretto (30 November 1992 unreported) the High Court found that a new power of variation of confiscation orders could not apply retrospectively to increase the amount of an order made before a new 1990 Act came into force. In his judgment, Mr. Justice Schieman made reference to Article 7 of the Convention and found that in the absence of explicit retrospective intention of the legislature, he would not construe the variation powers as applying to alter the position of those who had already been sentenced.   35.   In other contexts however domestic courts have referred to the confiscation provisions as not being punitive but reparative in purpose.   36.   For example, In Re:T(Restraint Order: Disclosure of Assets) 1992 1 WLR 949 Lord Justice Parker stated that section 3 of 1986 Act "...reveals a very clear parliamentary intent...that the person convicted of a drug trafficking offence, in addition to being punished for that offence, should not be punished for other offences of a like nature, but deprived of the benefits of all his other drug trafficking". Lord Justice Leggatt said: "Confiscation applies to the value of the Defendant's proceeds of drug trafficking, whereas forfeiture extends to things used for the commission of the crime and is therefore punitive. It is true that disclosure of assets exposes the defendant to the risk of a confiscation order greater in amount than could be made in the absence of disclosure, but it is not self- incriminating because a person does not by making reparation incur punishment."   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   37.   The Commission has declared admissible the applicant's complaint that the confiscation order imposed on him constituted a retrospective criminal penalty.   B.    Point at issue   38.   The issue to be determined is whether there has been a violation of Article 7 (Art. 7) of the Convention.   C.    Article 7 (Art. 7) of the Convention   39.   Article 7 (Art. 7) provides that:        "1.   No one shall be held guilty of any criminal offence on      account of any act or omission which did not constitute a      criminal offence under national or international law at the      time when it was committed.   Nor shall a heavier penalty be      imposed than the one that was applicable at the time the      criminal offence was committed.        2.    This Article shall not prejudice the trial and      punishment of any person for any act or omission which, at      the time when it was committed, was criminal according to      the general principles of law recognised by civilised      nations."   40.   The applicant submits the confiscation order imposed on him constituted a retrospective criminal penalty. He points to the draconian nature of the order which is calculated on the basis of assumptions that any money received or paid by the defendant in the preceding six years is derived from drug trafficking. The purpose of the order is wider than the removal of profits since it covers all proceeds which have passed through the defendant's hands irrelevant of whether he received any benefit or enrichment. Expenditure by the defendant is not deducted in the calculation but in fact capable of being added to the total figure. The effect of the order therefore is not, in his submission, to restore the status quo since it will place a defendant in a worse position. Further there is the imposition of a period of imprisonment in default of payment (up to a maximum of ten years) which is required to run consecutively to the prison term imposed in respect of the offence. Consequently, the confiscation order is essentially punitive in nature and effect since it arises out of criminal proceedings in which guilt is determined and is contingent upon a subsisting and valid criminal conviction.   41.   The Government submit that the confiscation order did not constitute a penalty for the purposes of Article 7 (Art. 7). It was a preventive measure designed to prevent a defendant from benefitting from the proceeds of drug trafficking and to prevent the use of the proceeds for drug trafficking in the future. It was not intended as a punishment or sanction for any specific offence. The nature and purpose of a confiscation order should not be confused with the method of identifying the appropriate person against whom the preventive measures should be taken. The process of identifying the appropriate person explains why such measures are linked to a drug trafficking offence and that link is not sufficient to render the order a penalty having regard to the purpose behind it. This proposition, that the link between the criminal proceedings and the confiscation order is only for the purpose of establishing the pre-condition that the person is a drug trafficker, is demonstrated further by the fact that once the power to impose the order is triggered the order may relate as in this case to a period in respect of which there has been no conviction for drug trafficking.   42.   The Commission notes first of all that there is no dispute as to the retrospective effect of the confiscation provisions under the 1986 Act. At the time of the commission of the offences for which the applicant was convicted (cf. para. 19 above) the legislative provisions concerning confiscation were not in force   (cf. para. 28 above). The sole issue is as to whether the confiscation order constituted a penalty imposed in respect of a criminal offence within the meaning of Article 7 para. 1 (Art. 7-1) of the Convention.   43.   An examination of the Commission's case-law reveals no established definition of the term "penalty". While there are numerous cases from the Commission and the Court dealing with the meaning of "criminal charge", this is in the context of Article 6 para. 1 (Art. 6-1) and since the criteria listed (classification of the offence in domestic law, nature of the offence and severity of the penalty) are aimed at   identifying the nature of the proceedings brought against an accused, they are not, in the Commission's view, particularly useful in ascertaining the character of the sanction imposed in this case (see eg. Eur. Court H.R., Engel and others judgment of 8 June 1976, Series A no. 22, pp. 33-34, para. 80).   44.   The case of M. v. Italy (No. 12386/86, Dec. 15.4.91, D.R. 70 p. 59) provides some relevant comparison however. This application concerned the complaints by the applicant, suspected of involvement in organised crime, of the confiscation of property worth a considerable amount of money. He invoked Article 6 para. 2 (Art. 6-2) and Article 7 (Art. 7) of the Convention. In considering whether the confiscation order, if imposed retrospectively, constituted a penalty, the Commission drew a distinction between penal measures and measures with a preventive aim. It noted that the confiscation proceedings did not involve a finding of guilt after determination of a criminal charge. Rather the proceedings concerned the judicial investigation of the probable source of revenue of a person suspected of organised crime involvement and had the aim of removing that revenue from the future disposal of the criminal organisation. The Commission commented that the severity of a confiscation measure was not sufficient to give it a penal character; it referred to the common use of confiscation outside the penal sphere in administrative procedures eg in respect of illegally imported goods, dangerous articles.   45.   Both parties rely on the above case. The applicant points out that unlike in M. his confiscation order was based on a finding of guilt in respect of a criminal charge and was decided by the criminal court at the end of the trial. The Government contend that the purpose of the confiscation order being the same as in M. it should not be decisive that in one case the courts dealt with the conviction and confiscation separately while in the other they did not.   46.   The Commission considers that regard must be had to the essential nature and object of a measure both as stated in domestic law and as revealed in practice (see eg Nos. 6211/73 and 6213/73, Dec. 11. 10.73 unpublished). Before embarking on a consideration of that question, it would comment that a finding that a measure is not punitive in character would not however remove the matter entirely from the supervision of the Convention organs. A preventive measure relating to property would attract the procedural guarantees of Article 6 para. 1 (Art. 6-1) of the Convention (insofar as it related to the determination of civil rights and obligations) and Article 1 of Protocol No. 1 (P1-1) to the Convention which guarantees the peaceful enjoyment of possessions.   47.   In the present case, the Commission recalls the background to the 1986 Act and the stated purpose of the Act (cf. paras. 25-27 above) which indicate that the   measure of confiscation was intended to be reparative and preventive - to remove the proceeds of crime from the offender so that "crime does not pay" and also to ensure the money could not continue to be used in drug trafficking.   48.   The procedure as enacted provides in practice that at the end of criminal proceedings in which a person is convicted of drug trafficking offences the court will proceed to determine whether the person has benefitted from drug trafficking and if so assess the amount to be subject to a confiscation order. The 1986 Act provides for drastic assumptions in making that assessment, in particular that all money passing through the defendant's hands in the past six years will be assumed to be the benefit of drug trafficking. These assumptions however may be shown by the defendant to be incorrect.   49.   The Commission notes that the domestic courts have commented on the draconian nature of the provisions and appear to have attempted to mitigate their effect by holding, for example, that the criminal standard of proof lies on the prosecution to establish that a defendant had in fact benefitted (cf. paras. 31-36 above). The statements of the domestic courts referring to the confiscation order as penal or as a penalty are not helpful however since they are contradictory and the courts were addressing themselves to specific points of domestic law and procedure rather than to the classification of the measure under the provisions of the Convention.   50.   Moreover, as stated above (at para. 44 in fine), the severity of the measure, even with the inclusion of a term of imprisonment in default of payment, cannot in itself be decisive of its character. Default sentences exist outside the criminal or punitive sphere eg failure to comply with civil obligations or court orders. Similarly, the Commission agrees with the Government that the inclusion of the confiscation proceedings at the end of the criminal trial does not by itself render the measure punitive. The Commission notes the point made by the applicant that the order is contingent on a finding of guilt. But it considers that the domestic authorities have chosen to use a conviction as the trigger for confiscation rather than, as in the M. case, have separate and parallel proceedings in another court. The fact that the confiscation order must fall away or cannot be imposed if a conviction is later quashed or because for whatever technical reason a defendant cannot be convicted reflects the high standard of proof required in the United Kingdom system for identifying those persons who have benefitted from drug trafficking.   51.   The applicant   argues that the true nature and object of the confiscation is punitive since, in practice, it goes beyond reparation and prevention   in the scope of the proceeds which it can attach ie it is not limited to the actual enrichment or profit. The Commission does not find this argument conclusive. If a drug trafficker on arrest is found to have a certain amount of money in his possession from the sale of drugs, the domestic authorities cannot be required before confiscating the money to embark on an exercise of calculating the miscellaneous expenses which the trafficker might have incurred in the process. The wide extent of the power to confiscate appears to the Commission to derive rather from the purpose of ensuring that as much drug trafficking proceeds as possible are caught in the net than from any punitive purpose.   52.   The Commission also notes that where a defendant is convicted, perhaps only of one offence, the confiscation proceedings under the 1986 Act extend to an examination of proceeds from his drug trafficking in the past generally. This in the Commission's view supports the Government's contention that the role of the criminal proceedings is to identify a person that has benefitted from drug trafficking and that the confiscation procedure can be seen as a consequence with its own specific purposes of reparation and prevention.   53.   In light of the above considerations, the Commission finds that the confiscation order imposed in the present case was not punitive in nature or object and consequently did not constitute a penalty within the meaning of Article 7 para. 1 (Art. 7-1) of the Convention.        CONCLUSION   54.   The Commission concludes, by 7 votes to 7, with the casting vote of the Acting President being decisive, that there has been no violation of Article 7 (Art. 7) of the Convention.   Secretary to the Commission    Acting President of the Commission        (H.C. KRÜGER)                        (S. TRECHSEL)                                                      Or. English       DISSENTING OPINION OF MM. SOYER, MARTINEZ, MRS. LIDDY, MM. GEUS, and MARXER        We agree with the majority of the Commission that regard must be had to the essential nature and object of a measure both as stated in domestic law and as revealed in practice but also consider the effect relevant. Where a sanction or measure is not strictly speaking a penalty, it may nonetheless have a similar purpose or effect which may bring it within the ambit of Article 7 of the Convention (No. 5155/71, Dec. 1.6.73, unpublished).        As noted by the majority, the 1986 Act provides for drastic assumptions in assessing the amount to be subject to a confiscation order, in particular that all money passing through the defendant's hands in the past six years will be assumed to be the benefit of drug trafficking. The draconian nature of the provisions has been commented upon by the domestic courts, which have taken steps to mitigate the provisions by for example insisting on the criminal standard of proof applying to the prosecution as regards whether a person has benefitted from drug trafficking (cf. paras. 31-36 above). Nonetheless, once the initial step of establishing that a defendant has b nefitted has been accomplished by the prosecution, the burden of proof effectively switches to the defendant to prove that particular assets were in fact not derived from drug trafficking and therefore should not be included in the calculation of the proceeds to be confiscated (see eg. Dickens (1990) 91 CAR 164).        We find force in the applicant's argument that the true nature and object of the confiscation is punitive since in practice it goes beyond reparation and prevention   in the scope of the proceeds which it can attach ie it is not limited to the actual enrichment or profit. Further, expenditure by the defendant is in fact capable of being added to the total figure assessed.   While the severity of the order, combined as it is with sentence of imprisonment in default, is not decisive in itself, it is nonetheless a significant factor in assessing whether the measure is punitive in its essential effect. There was no sentence of imprisonment in default in the M. case referred to above (see para. 44).        The Commission in the case of M. took into account, in finding the measure preventive, that the confiscation was not linked to a finding of guilt or part of criminal proceedings. In the present case, the confiscation was contingent upon a finding of guilt. It could not be imposed or must fall away if for whatever technical reason a defendant is acquitted or successful on appeal against conviction. As an example, it is apparent that if an international drug trafficker succeeded in securing an acquittal by virtue of a finding of insanity it would not be possible to confiscate any of the proceeds of his trafficking.        We are aware that the United Kingdom system could be regarded as giving a high standard of procedural protection to suspects as a result of linking confiscation to criminal proceedings with a correspondingly higher burden of proof on the prosecution. However, that link to the criminal conviction combined with the stringency of the measure, particularly the sentence of 2 years' imprisonment in default, leads us to the view that such confiscation is a measure which in practice is essentially punitive in its nature and effect.        Consequently, we consider that the confiscation order imposed on the applicant was a penalty within the meaning of Article 7 para. 1 of the Convention. We would emphasise however that this conclusion is not a criticism of confiscation itself as a means of combatting the problems of drug trafficking: merely that the imposition of such a penalty cannot under the terms of the Article be imposed retrospectively.                                                       Or.English              DISSENTING OPINION OF Mr. H. G. Schermers        In my opinion, the confiscation of property acquired by crime, even without express prior legislation, is not contrary to Article 7 of the Convention, nor to Article 1 of the First Protocol.   In this respect, I can support much of the opinion of the majority.   In principle, therefore, I do not consider the 1986 Act as such contrary to the Convention.   The importance of effectively fighting crime justifies its drastic assumptions.   These drastic assumptions, however, illustrate that, apart from its purpose to "take back" what was obtained illegally, the Act also includes a punitive element.   Without the assumption of an underlying crime, only illegally-obtained profit could be confiscated and only to the extent to which the authorities could prove the unjust enrichment.   In my view, the confiscation of property in excess of the amount which the authorities can prove to be obtained from crime is of a punitive character.   That part of the confiscation, therefore, may not be retroactively imposed.   The facts as presented to the Commission suggest that property in excess of that amount has been confiscated which leads me to the conclusion that there has been a violation of Article 7 of the Convention.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                           Item ________________________________________________________________   22.06.90        Introduction of the application   19.11.90        Registration of the application   Examination of admissibility   07.10.91        Commission's decision to invite the parties to submit                observations on the admissibility and merits of the                application   20.02.92        Government's observations   10.04.92        Commission's grant of legal aid to the applicant   28.5.92         Applicant's observations   31.08.92        Commission's decision to invite the parties to an oral                hearing on the admissibility and merits   12.02.93        Hearing on the admissibility and merits   12.02.93        Commission's decision to declare the application                partially admissible, partially inadmissible.   Examination of the merits   12.02.93        Commission's deliberations on the merits   06.04.93        Government's submission of further observations on the                merits   08.04.93        Applicant's submission of further observations on the                merits   03.07.93        Commission's consideration of the state of proceedings   15.10.93        Commission's deliberations on the merits, final votes                and adoption of the Report