CASE OF AIR CANADA v. THE UNITED KINGDOM

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
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
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:
Mr M.R. Eaton, Foreign and Commonwealth Office, Agent,
Mr M. Maynard, HM Customs and Excise,
Mr W. Parker, HM Customs and Excise, Advisers;
The Court heard addresses by Sir Basil Hall, Mr Webb and
Mr Pannick and also replies to questions put by the President and
I. Particular circumstances of the case
6. Between 1983 and 1987 a number of incidents gave rise to concern
over the adequacy of the applicant company's security procedures at
(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
(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
(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
(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
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
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
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
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
"(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
(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
(i) that the Defendants knew or ought to have known that
cannabis resin was on board the aircraft on 26 April 1987;
(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
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'.
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;
(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
"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
The preliminary questions were answered as follows:
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
"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
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
II. Relevant domestic law and practice
A. Customs and Excise Management Act 1979
"... where any thing has become liable to forfeiture under the
(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
"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
19. Powers of Commissioners after seizure
"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, 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
(c) after judgment mitigate or remit any pecuniary penalty
"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 ..."
"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
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
"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
"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
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
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
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
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
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
"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
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
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
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
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
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
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
Thirdly, the temporary seizure of the aircraft was
disproportionate to any wrong that might have been done, as was the
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
In sum, in the Government's submission, a fair balance had been
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
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,
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
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
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
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
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 ..."
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
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
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 the national
court were measures consequential upon the act of smuggling committed
by another party and that criminal charges had not been brought against
AGOSI in respect of that act. The fact that the property rights of
AGOSI were adversely affected could not of itself lead to the
conclusion that a "criminal charge" for the purposes of Article 6
(art. 6), could be considered as having been brought against the
applicant company (loc. cit., p. 22, paras. 65-66).
54. Bearing in mind that, unlike the AGOSI case, the applicant
company had been required to pay a sum of money and that its property
had not been confiscated, the Court proposes to follow the same
55. Accordingly the matters complained of did not involve "the
determination of [a] criminal charge".
2. Civil rights and obligations
56. It has not been disputed by those appearing before the Court that
the present case concerns a dispute relating to the applicant company's
On the basis of its established case-law the Court sees no reason
to differ from this view (see, the Editions Périscope v. France
judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40).
B. Compliance with Article 6 para. 1 (art. 6-1)
57. The applicant further maintained that its civil rights and
obligations had been determined by the procedures under the 1979 Act.
It contended, in this respect also, that neither the condemnation
proceedings nor the remedy of judicial review satisfied Article 6
para. 1 (art. 6-1). In particular, the proportionality of the measures
complained of could not be examined in judicial review proceedings and
the wider the statutory provisions under scrutiny the narrower the
scope of review. Moreover the remedy was discretionary in nature.
58. In the Government's submission, the Commissioners could not
forfeit the aircraft until they had taken condemnation proceedings in
the High Court which the applicant had the opportunity to defend.
Furthermore, it had the possibility to bring judicial review
proceedings to challenge the decision to require the money payment for
59. For the Commission, the applicant's complaint as regards the
condemnation proceedings related more to the content of the rights and
obligations under domestic law than to any procedural right in
connection with the determination of civil rights. Further, as regards
judicial review proceedings, it was not prepared to express a view in
the abstract since no proceedings had actually been brought by Air
60. The Court notes that the applicant's complaint related to both
the seizure of the aircraft and the payment of £50,000.
61. As regards the seizure, the relevant provisions of United Kingdom
law required the Commissioners to take proceedings for forfeiture once
the seizure of the aircraft had been challenged (see paragraphs 11 and
18 above). Such proceedings were in fact brought and, with the
agreement of the parties, were limited to the determination of
specified questions of law. In such circumstances, the requirement of
access to court inherent in Article 6 para. 1 (art. 6-1) was satisfied.
62. Furthermore, it was also open to Air Canada to bring judicial
review proceedings contesting the decision of the Commissioners to
require payment as a condition for the return of the aircraft. As
noted above (see paragraph 44 above), had such proceedings been
brought, Air Canada could have sought to contest the factual grounds
on which the exercise of discretion by the Commissioners was based.
However, for whatever reason, such proceedings were not in fact
instituted. Against this background, the Court does not consider it
appropriate to examine in the abstract whether the scope of judicial
review, as applied by the English courts, would be capable of
satisfying Article 6 para. 1 (art. 6-1) of the Convention.
63. Accordingly, there has been no violation of Article 6 para. 1
1. Holds by five votes to four that there has been no violation of