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You are here: BAILII >> Databases >> European Court of Human Rights >> WELCH v. THE UNITED KINGDOM - 17440/90 [1995] ECHR 4 (9 February 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/4.html Cite as: (1995) 20 EHRR 247, 20 EHRR 247, [1995] ECHR 4

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In the case of Welch 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. Matscher,

Mr R. Macdonald,

Mr J. De Meyer,

Mr I. Foighel,

Mr R. Pekkanen,

Sir John Freeland,

Mr L. Wildhaber,

Mr K. Jungwiert,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 26 October 1994 and

25 January 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 1/1994/448/527. 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

15 January 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. 17440/90)

against the United Kingdom of Great Britain and Northern

Ireland lodged with the Commission under Article 25 (art. 25)

by a British citizen, Mr Peter Welch, on 22 June 1990.

2. 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 7 (art. 7) of the Convention.

3. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated

that he wished to take part in the proceedings and designated

the lawyer who would represent him (Rule 30).

4. 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

28 January 1994, in the presence of the Registrar, the

President drew by lot the names of the other seven members,

namely Mr F. Matscher, Mr R. Macdonald, Mr N. Valticos,

Mr I. Foighel, Mr R. Pekkanen, Mr L. Wildhaber and

Mr K. Jungwiert (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43).

Subsequently Mr J. De Meyer, substitute judge, replaced

Mr Valticos, who was unable to take part in the further

consideration of the case (Rules 22 para. 1 and 24 para. 1).

5. 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 lawyer 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, the Registrar

received the Government's memorial on 20 June 1994 and the

applicant's memorial on 24 June. On 15 September the

applicant's submissions under Article 50 (art. 50) were

received. The Secretary of the Commission subsequently

informed the Court that the Delegate would make his comments

at the hearing.

6. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 24 October 1994. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr M. Eaton, Foreign and Commonwealth Office, Agent,

Mr A. Moses, QC, Counsel,

Mr H. Giles, Home Office,

Mr P. Vallance, Home Office,

Mr S. Jones, Home Office, Advisers;

(b) for the Commission

Mr Gaukur Jörundsson, Delegate;

(c) for the applicant

Mr B. Emmerson, Counsel,

Mr R. Atter, Solicitor,

Mr J. Cooper, Adviser.

The Court heard addresses by Mr Gaukur Jörundsson,

Mr Emmerson and Mr Moses and also replies to questions put by

the President and another judge.

AS TO THE FACTS

I. Circumstances of the case

7. On 3 November 1986 Mr Welch was arrested for suspected

drug offences. On 4 November he was charged in respect of

offences concerning the importation of large quantities of

cannabis. Prosecuting Counsel advised, prior to

February 1987, that there was insufficient evidence to charge

Mr Welch with possession of cocaine with intent to supply.

8. After further investigations, including forensic

examinations, further evidence came to light and on

24 February 1987 the applicant was charged with the offence of

possession with intent to supply cocaine alleged to have been

committed on 3 November 1986. Subsequently, on 5 May 1987, he

was charged with conspiracy to obtain cocaine within intent to

supply in respect of activities which occurred between

1 January 1986 and 3 November.

9. On 24 August 1988, Mr Welch was found guilty on five

counts and was given an overall sentence of twenty-two years'

imprisonment. In addition, the trial judge imposed a

confiscation order pursuant to the Drug Trafficking Offences

Act 1986 ("the 1986 Act") in the amount of £66,914. In

default of the payment of this sum he would be liable to serve

a consecutive two years' prison sentence. The operative

provisions of the 1986 Act had come into force on

12 January 1987. The Act applies only to offences proceedings

for which were instituted after this date.

10. On 11 June 1990 the Court of Appeal reduced Mr Welch's

overall sentence by two years. In addition it reduced the

confiscation order by £7,000 to £59,914.

II. Relevant domestic law

11. The intended purpose of the 1986 Act was to extend

existing confiscation powers to enable the court to follow

drug trafficking money which had been "laundered" into

legitimate property. In the words of the Secretary of State

who introduced the Bill in the House of Commons:

"By attacking the profits made from drug trafficking, we

intend to make it much less attractive to enter the

trade. 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 the profits that they

have made from doing so.

...

We need the legislation because the forfeiture powers in

existing law have proved inadequate. The courts cannot

order the forfeiture of the proceeds of an offence once

they have been converted into another asset - a house,

stocks and shares, or valuables of any sort. The

Operation Julie case was the most notorious example of

the courts being unable to deprive convicted traffickers,

as they wished, of the proceeds of their offences ... the

Bill is designed to remedy those defects. It will

provide powers for courts to confiscate proceeds even

after they have been converted into some other type of

asset." (Hansard of 21 January 1986, Cols 242 and 243)

A. Drug Trafficking Offences Act 1986

12. The relevant parts of the 1986 Act provide 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 ...

...

4. 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 ... 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 subsection (3) below.

(3) If the court is satisfied that the amount that may be

realised at the time 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."

B. Discretion of the trial judge

13. In determining the amount of the confiscation order the

trial judge may take into consideration the degree of

culpability of the offender. For example, in R. v. Porter

([1990] 12 Criminal Appeal Reports (sentencing) 377) the Court

of Appeal held that where more than one conspirator was before

the court the total proceeds of a drug trafficking conspiracy

could be unequally allocated as their respective share of the

proceeds if there was evidence that the defendants had played

unequal roles and had profited to a different extent.

Similarly, in the present case, the trial judge made a much

smaller order in respect of the applicant's co-defendant in

recognition of his lesser involvement in the offences.

C. Imprisonment in default of payment

14. 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. The maximum periods of

imprisonment are provided for 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 is two years.

D. Statements by domestic courts concerning the nature of

forfeiture and confiscation provisions

15. Prior to the passing of the 1986 Act, Lord Salmon

expressed the view that forfeitures of money had both a

punitive and deterrent purpose (House of Lords decision in

R. v. Menocal, [1979] 2 Weekly Law Reports 876).

16. The domestic courts have commented in various cases on

the draconian nature of the confiscation provisions in the

1986 Act and have occasionally referred to the orders,

expressly or impliedly, as constituting penalties (R. v.

Dickens [1990] 91 Criminal Appeal Reports 164; R. v. Porter

[1990] 12 Criminal Appeal Reports 377; In Re Lorenzo Barretto,

High Court decision of 30 November 1992 and Court of Appeal

decision of 19 October 1993).

In the Court of Appeal decision in the last-mentioned

case, which concerned the question whether a power to vary

confiscation orders introduced by the Criminal Justice

(International Co-operation) Act 1990 could be applied

retrospectively, the Master of the Rolls (Sir Thomas Bingham)

stated as follows (at p. 11):

"While it is true that a confiscation order is made

before sentence is passed for the substantive offence,

and the term of imprisonment in default is passed to

procure compliance and not by way of punishment, these

are in a broad sense penal provisions, inflicting the

vengeance of society on those who have transgressed in

this field."

17. However, the domestic courts have also referred to the

confiscation provisions as not being punitive but reparative

in purpose (Re T (Restraint Order; Disclosure of Assets)

[1992] 1 Weekly Law Reports 949).

PROCEEDINGS BEFORE THE COMMISSION

18. Mr Welch lodged his application (no. 17440/90) with the

Commission on 22 June 1990. He complained under Article 7

(art. 7) of the Convention that the confiscation order imposed

upon him constituted the imposition of a retrospective

criminal penalty. He further complained of violations of his

rights under Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of

the Convention.

19. On 12 February 1993 the Commission declared the

applicant's complaint admissible in so far as it raised issues

under Article 7 (art. 7) of the Convention. The remainder of

the application was declared inadmissible.

In its report of 15 October 1993 (Article 31) (art. 31),

it expressed the opinion that there had been no violation of

Article 7 (art. 7) (seven votes to seven with the casting vote

of the Acting President being decisive). The full text of the

Commission's opinion and of the two 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 307-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 TO THE COURT

20. In their memorial, the Government requested the Court to

find that there has been no violation of Article 7 (art. 7) of

the Convention in the present case.

21. The applicant submitted in his memorial that his rights

under Article 7 (art. 7) have been violated by the application

of an enactment which was expressly retrospective in its

effect.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 7 PARA. 1 (art. 7-1) OF THE

CONVENTION

22. The applicant complained that the confiscation order that

was made against him amounted to the imposition of a

retrospective criminal penalty, contrary to Article 7 (art. 7)

which reads as follows:

"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 (art. 7) 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."

He emphasised that his complaint was limited to the

retrospective application of the confiscation provisions of

the 1986 Act and not the provisions themselves.

23. He submitted that in determining whether a confiscation

order was punitive the Court should look beyond its stated

purpose and examine its real effects. The severity and extent

of such an order identified it as a penalty for the purposes

of the Convention.

In the first place, under section 2 (3) of the 1986 Act

the national court was entitled to assume that any property

which the offender currently held or which had been

transferred to him in the preceding six years, or any gift

which he had made during the same period, were the proceeds of

drug trafficking (see paragraph 12 above). In addition by

seeking to confiscate the proceeds, as opposed to the profits,

of drug dealing, irrespective of whether there had in fact

been any personal enrichment, the order went beyond the

notions of reparation and prevention into the realm of

punishment.

Moreover, the fact that an order could not be made unless

there had been a criminal conviction and that the degree of

culpability of an accused was taken into consideration by the

court in fixing the amount of the order also pointed in the

direction of a penalty. Indeed prior to the passing of the

1986 Act the courts had regarded forfeiture orders as having

the dual purpose of punishment and deterrence (see

paragraph 15 above). Finally, confiscation orders had been

recognised as having a punitive character in various domestic

court decisions (see paragraph 16 above) and in several

decisions of the Supreme Court of the United States concerning

similar legislation (Austin v. the United States and Alexander

v. the United States, decisions of 28 June 1993,

125 Led 2d 441 and 488).

24. The Government contended that the true purpose of the

order was twofold: firstly, to deprive a person of the profits

which he had received from drug trafficking and secondly, to

remove the value of the proceeds from possible future use in

the drugs trade. It thus did not seek to impose a penalty or

punishment for a criminal offence but was essentially a

confiscatory and preventive measure. This could be seen from

the order in the present case, which had been made for the

purpose of depriving the defendant of illegal gains. Had no

order been made, the money would have remained within the

system for use in further drug-dealing enterprises.

It was stressed that a criminal conviction for drug

trafficking was no more than a "trigger" for the operation of

the statutory provisions. Once the triggering event had

occurred, there was no further link with any conviction.

Thus, the court could consider whether a person had benefited

from drug trafficking at any time and not merely in respect of

the offence with which he had been charged. Moreover, an

order could be made in relation to property which did not form

part of the subject-matter of the charge against the defendant

or which had been received by him in a period to which no

drug-dealing conviction related.

Furthermore, the fact that a period of imprisonment could

be imposed in default of payment could be of no assistance in

characterising the nature of the confiscation order since

there were many non-penal court orders which attracted such a

penalty in the event of non-compliance. Similarly the harsh

effect of the order was of no assistance, since the

effectiveness of a preventive measure required that a drug

trafficker be deprived not only of net profits but of money

which would otherwise remain available for use in the drug

trade.

25. For the Commission, the order in the present case was not

punitive in nature but reparative and preventive and,

consequently, did not constitute a penalty within the meaning

of Article 7 para. 1 (art. 7-1) of the Convention.

26. The Court first observes that the retrospective

imposition of the confiscation order is not in dispute in the

present case. The order was made following a conviction in

respect of drugs offences which had been committed before the

1986 Act came into force (see paragraph 11 above). The only

question to be determined therefore is whether the order

constitutes a penalty within the meaning of Article 7

para. 1 (art. 7-1), second sentence.

27. The concept of a "penalty" in this provision is, like the

notions of "civil rights and obligations" and "criminal

charge" in Article 6 para. 1 (art. 6-1), an autonomous

Convention concept (see, inter alia, - as regards "civil

rights" - the X v. France judgment of 31 March 1992, Series A

no. 234-C, p. 98, para. 28, and - as regards "criminal charge"

- the Demicoli v. Malta judgment of 27 August 1991, Series A

no. 210, pp. 15-16, para. 31). To render the protection

offered by Article 7 (art. 7) effective, the Court must remain

free to go behind appearances and assess for itself whether a

particular measure amounts in substance to a "penalty" within

the meaning of this provision (see, mutatis mutandis, the

Van Droogenbroeck v. Belgium judgment of 24 June 1982,

Series A no. 50, p. 20, para. 38, and the Duinhof and Duijf

v. the Netherlands judgment of 22 May 1984, Series A no. 79,

p. 15, para. 34).

28. The wording of Article 7 para. 1 (art. 7-1), second

sentence, indicates that the starting-point in any assessment

of the existence of a penalty is whether the measure in

question is imposed following conviction for a "criminal

offence". Other factors that may be taken into account as

relevant in this connection are the nature and purpose of the

measure in question; its characterisation under national law;

the procedures involved in the making and implementation of

the measure; and its severity.

29. As regards the connection with a criminal offence, it is

to be observed that before an order can be made under the

1986 Act the accused must have been convicted of one or more

drug-trafficking offences (see section 1 (1) of the 1986 Act

at paragraph 12 above). This link is in no way diminished by

the fact that, due to the operation of the statutory

presumptions concerning the extent to which the applicant has

benefited from trafficking, the court order may affect

proceeds or property which are not directly related to the

facts underlying the criminal conviction. While the reach of

the measure may be necessary to the attainment of the aims of

the 1986 Act, this does not alter the fact that its imposition

is dependent on there having been a criminal conviction.

30. In assessing the nature and purpose of the measure, the

Court has had regard to the background of the 1986 Act, which

was introduced to overcome the inadequacy of the existing

powers of forfeiture and to confer on the courts the power to

confiscate proceeds after they had been converted into other

forms of assets (see paragraph 11 above). The preventive

purpose of confiscating property that might be available for

use in future drug-trafficking operations as well as the

purpose of ensuring that crime does not pay are evident from

the ministerial statements that were made to Parliament at the

time of the introduction of the legislation (see paragraph 11

above). However it cannot be excluded that legislation which

confers such broad powers of confiscation on the courts also

pursues the aim of punishing the offender. Indeed the aims of

prevention and reparation are consistent with a punitive

purpose and may be seen as constituent elements of the very

notion of punishment.

31. In this connection, confiscation orders have been

characterised in some United Kingdom court decisions as

constituting "penalties" and, in others, as pursuing the aim

of reparation as opposed to punishment (see paragraphs 16 and

17 above). Although on balance these statements point more in

the direction of a confiscation order being a punitive

measure, the Court does not consider them to be of much

assistance since they were not directed at the point at issue

under Article 7 (art. 7) but rather made in the course of

examination of associated questions of domestic law and

procedure.

32. The Court agrees with the Government and the Commission

that the severity of the order is not in itself decisive,

since many non-penal measures of a preventive nature may have

a substantial impact on the person concerned.

33. However, there are several aspects of the making of an

order under the 1986 Act which are in keeping with the idea of

a penalty as it is commonly understood even though they may

also be considered as essential to the preventive scheme

inherent in the 1986 Act. The sweeping statutory assumptions

in section 2 (3) of the 1986 Act that all property passing

through the offender's hands over a six-year period is the

fruit of drug trafficking unless he can prove otherwise (see

paragraph 12 above); the fact that the confiscation order is

directed to the proceeds involved in drug dealing and is not

limited to actual enrichment or profit (see sections 1 and 2

of the 1986 Act in paragraph 12 above); the discretion of the

trial judge, in fixing the amount of the order, to take into

consideration the degree of culpability of the accused (see

paragraph 13 above); and the possibility of imprisonment in

default of payment by the offender (see paragraph 14 above) -

are all elements which, when considered together, provide a

strong indication of, inter alia, a regime of punishment.

34. Finally, looking behind appearances at the realities of

the situation, whatever the characterisation of the measure of

confiscation, the fact remains that the applicant faced more

far-reaching detriment as a result of the order than that to

which he was exposed at the time of the commission of the

offences for which he was convicted (see, mutatis mutandis,

the Campbell and Fell v. the United Kingdom judgment of

28 June 1984, Series A no. 80, p. 38, para. 72).

35. Taking into consideration the combination of punitive

elements outlined above, the confiscation order amounted, in

the circumstances of the present case, to a penalty.

Accordingly, there has been a breach of Article 7 para. 1

(art. 7-1).

36. The Court would stress, however, that this conclusion

concerns only the retrospective application of the relevant

legislation and does not call into question in any respect the

powers of confiscation conferred on the courts as a weapon in

the fight against the scourge of drug trafficking.

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

37. Article 50 (art. 50) provides as follows:

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict

with the obligations arising from the ... Convention, and

if the internal law of the said Party allows only partial

reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured

party."

A. Damage

38. The applicant claimed an unspecified amount of

compensation and/or restitution of the sum confiscated.

However, in the course of the hearing before the Court he

pointed out that the confiscation order had not yet been

enforced because of the present proceedings.

The Government, like the Delegate of the Commission, made

no observations.

39. The Court considers that in these circumstances the

matter is not ready for decision. The question must

accordingly be reserved and the further procedure fixed, with

due regard to the possibility of an agreement being reached

between the Government and the applicant (Rule 54 paras. 1

and 4 of Rules of Court A).

B. Costs and expenses

40. The applicant claimed £13,852.60 by way of costs and

expenses in respect of the Strasbourg proceedings.

Neither the Government nor the Delegate of the Commission

had any comments to make.

41. The Court considers that the sum is reasonable and that

the full amount claimed should be awarded less the sums paid

by way of legal aid.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 7

para. 1 (art. 7-1) of the Convention;

2. Holds that the respondent State is to pay, within three

months, 13,852 (thirteen thousand eight hundred and

fifty-two) pounds sterling and 60 (sixty) pence, together

with any value-added tax that may be chargeable, for

costs and expenses, less 10,420 (ten thousand four

hundred and twenty) French francs to be converted into

pounds sterling at the rate of exchange applicable on the

date of delivery of the present judgment;

3. Holds that the question of the application of Article 50

(art. 50) of the Convention is not ready for decision as

regards damage;

accordingly,

(a) reserves the said question in that respect;

(b) invites the Government and the applicant to submit,

within the forthcoming three months, their written

observations on the matter and, in particular, to

notify the Court of any agreement they may reach;

(c) reserves the further procedure and delegates to the

President of the Chamber the power to fix the same

if need be.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

9 February 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the

concurring opinion of Mr De Meyer is annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

CONCURRING OPINION OF JUDGE DE MEYER

There could be no doubt that the confiscation order

inflicted upon the applicant was a sanction following

conviction for a criminal offence, and that it had the nature

of a penalty.

Taking into consideration factors such as its "purpose",

its "characterisation under national law", its "severity", or

the elements involved in the making of the order referred to

in paragraph 33 of the judgment, could not be "relevant in

this connection".

I did not need these "other factors" (see paragraph 28 of

the present judgment) to reach a conclusion which was, in my

view, self-evident.