Article 37

SEIZURE AND CONFISCATION

Any drugs, substances and equipment used in or intended for the commission of any of the offences, referred to in article 36, shall be liable to seizure and confiscation.

Commentary

1. The question arises whether the words "shall be liable to seizure and confiscation" are meant to impose upon Parties an obligation to seize and confiscate, under the conditions of article 37, the drugs, substances and equip ment involved, or whether those words only require the Parties to provide for legal power of their competent authorities and courts to do so. These words can be understood either in the sense of "shall be legally bound to be seized and confiscated" ("shall be subject to seizure and confiscation"), or in that of "shall be open to seizure and confiscation" ("shall be exposed to seizure and confiscation"). 1 They could therefore be interpreted in both ways. In fact, some delegates 2 understood these words as not imposing a legal obligation to seize and confiscate the goods in question, while others 3 stated that they meant to provide by this text for such an obligation. There was also some awareness of the possible ambiguity of this phrase. a It appears, however, that the stronger view at the Conference favoured a definite obligation of Parties to seize and confiscate the drugs, substances and equipment concerned. 5

2. The Legal Adviser of the Plenipotentiary Conference stated 6 that in his opinion the purpose of the provision 7 "was to compel a country which had no law authorizing seizure and confiscation to adopt such a law". He also stated that "at least according to the English text, the court must confiscate property which had been seized if it was established that it was intended for the commission of an offence". This opinion was not contested. s It may also be noted that the Canadian representative, who was the chairman of the Drafting Committee of the Plenipotentiary Conference, was in favour of an obligation of Parties to carry out the seizures and confiscations in question, and that he obviously believed that the words "shall be liable to" imposed such an obligation. 9 It may also be of interest in this context to note that the Canadian representative was also the chairman of the Drafting Committee at the thirteenth session of the Commission on Narcotic Drugs which adopted the language in question. 10

3. It may also be remarked that the provision of article 37 would not be very meaningful if it did not provide for an obligation to make seizures and confiscations under its terms.

4. It is submitted that the opinion of the Legal Adviser to the effect that article 37, in using the phrase "shall be liable to", not only requires Parties to provide for legal authority of Government organs to make the seizures and confiscations but also imposes upon them an obligation to take these actions, represents the better view because it accords with the objectives and purposes of the Convention. This view is also corroborated by the provision of article 33 requiring Parties not to permit the possession of drugs except under legal authority, and by that of article 4, paragraph (c) which stipulates inter alia that Parties should limit the possession of drugs exclusively to medical and scientific purposes. Parties may-and generally do-give their judicial courts the power to decide on the seizures and confiscations.

5. It is, however, admitted that the French and Spanish versions do not easily lend themselves to the suggested interpretation. 11 It will on the other hand be noted that the Ad Hoc Committee of the Plenipotentiary Con ference on articles 44-46 of the Third Draft decided to request the Drafting Committee to bring the French and Spanish texts in line with the English text. 12 The Drafting Committee and later the Plenipotentiary Conference appear, however, to have overlooked the need to bring about the required concordance of these three versions. It may finally be mentioned that the original text of the provision under consideration was English. 13

6. It will be recalled that poppy straw and the leaves of the cannabis plant (when not accompanied by the tops) are not "drugs", and are therefore not as such within the scope of article 37.14 The straw may, however, have to be seized and confiscated as a "substance" if used or intended for the clandestine manufacture of morphine, though such manufacture appears to be highly improbable under present conditions. 15 Parties may also find it necessary to seize and confiscate cannabis leaves in order to implement article 28, paragraph 3.

7. Article 37 applies to drugs in Schedule I and II and to all preparations, including preparations in Schedule III, because it is not one of the provisions from which drugs in Schedule II or any preparations are excluded. 16

8. Different opinions were expressed at the Plenipotentiary Conference
as to the meaning of the word " equipment". One delegate expressed the opinion that this term covered also "vehicles", 17 while another was of the view that it did not refer to "vehicles". 18 It would, however, hardly be possible to understand the French text, which uses the word "materiel", and the Spanish text, which employs the term "utensilio" for the English "equipment", as including vehicles, and in any event as including large "vehicles" such as railroad cars, large boats or airplanes.

9. It is also suggested that only equipment used for the commission of the offences in question with the consent of its owner need be subject to confiscation under article 37. It is submitted that equipment so used should be "seized", i.e. be made subject to a provisional measure, whenever it is not clear from the circumstances that it has been employed without the agreement of the owner, and that it should then be left to the courts to determine his position before they take a final decision on the "confiscation".

10. It will be noted that the term "seizure" is used for the provisional act of taking possession pending the procedure on the final disposal of the seized drugs, substances or equipment, that is, pending the final decision on their "confiscation". i9

11. Large conveyances such as railroad cars, large boats and airplanes will hardly ever be used or intended to be used with the agreement of their owners for the commission of the offences to which article 37 refers. It follows that even if the term "equipment" covers vehicles and other conveyances, this article would in practice not apply to these large conveyances. Motor cars, small boats and small airplanes are, on the other hand, quite often the property of illicit traffickers, and intended and used by them for illicit traffic in narcotic drugs. It would be desirable that Governments should seize and confiscate them whatever their view may be on the meaning of the term "equipment".

12. It will be noted that the Single Convention did not take over the restrictions imposed by earlier narcotics treaties on the disposal of drugs confiscated from the illicit traffic. 20 The Parties are, however, authorized to export only to other Parties confiscated opium which because of the place in which it was "produced" 21 should not be the object of legal international trade under the terms of article 24, paragraphs 2 to 4. 22

13. See also above comments on article 33. For an earlier provision corresponding to article 37 of the Single Convention, see article 10 of the 1936 Convention.
 

1 The Concise Oxford Dictionary of Current English, Fifth Edition, Oxford, at the Clarendon Press, 1964, p. 697.

2 The representatives of Denmark, the United Kingdom and in a somewhat different way the United States representative; Records, vol. II, p. 246.

3 The representatives of France, the Federal Republic of Germany, Mexico and Yugoslavia; Records, vol. I, p. 128 and vol. II, pp. 245 and 246.

4 Statement of the representative of the International Criminal Police Organization; Records, vol. II, pp. 246-247.

5 Records, vol. I, pp. 128-129 and vol. II, pp. 245-247.

6 Records, vol. II, p. 246.

7 He referred to article 46, para. 1 of the Third Draft which corresponds to article 37 of the Single Convention and which reads: "1. Any drugs, substances and equipment intended for the commission of any of the offences referred to in article 45, paragraph 1, shall be liable to seizure and confiscation;" article 45, para. 1 of the Third Draft corresponds to article 36, para. 1 and para. 2, subpara. (a), clause (ii) of the Single Convention.

8 The representative of the United States of America, speaking after the Legal Adviser, indicated that a Party would not be responsible for a court decision declining to decide to confiscate the substances concerned. He was also in favour of Parties undertaking an obligation to seize and confiscate; Records, vol. II, p. 246.

9 Ibid.

10 Commission on Narcotic Drugs, report on the thirteenth session (1958), paragraph 459 and annex V, article 47, paragraph 1; Official Records of the Economic and Social Council, Twenty-sixth Session, Supplement No. 9 (E/3133).

11 The French text renders the English phrase "shall be liable to seizure and confiscation" by the words "pourront etre saisis et confisques" and the Spanish text by the words "podrdn ser objeto de aprehension y decomiso".

12 Records, vol. II p. 247; see also pp. 245 and 248.

13 Records, vol. II, p. 1 and 18. In favour of the opinion that article 37 imposes an obligation to make the seizures and confiscations concerned, it may also be adduced that the words "shall be liable to adequate punishment . . ." in article 36, paragraph 1 are rendered in the French and Spanish versions by phrases which clearly provide an obligation of the Parties.

14 See above, comments on article 1, paragraph 1, subparas. (r) and (b).

15 See above, comments on article 25.

16 Article 2, paragraphs 2 to 4.

17 Records, vol. I, p. 128.

18 Records, vol. II, p. 246.

19 This final decision is generally left to judicial courts; the Single Convention, however, would not prevent a Party from giving this authority to an administrative organ. It may also be noted that this use of the term "seizure" is not consistent with the language employed in the English and French versions of article 20, para. 1, subpara. (e), article 21, para. 2 and article 24, para. 5, subpara. (b). The Spanish text of these provisions is, however, in this connexion in accord with its article 37 since they use respectively the words "decomiso", "decomisada" and "decomisen".

20 Article 18 of the 1931 Convention and article 7 of the 1953 Protocol.

21 Article 1, para. 1, subpara. (t).

22 Article 24, para. 5, subpara. (b) and above comments on that paragraph.