Non-conviction Based Sanctions: The Court of Justice v. the European Court of Human Rights, Who Decides?

Abstract

Recovering the proceeds of crime has become an instrumental tool in the fight against transnational criminality. It is expounded frequently that this tool is fundamental because it removes the incentive and means to commit further criminal activity. However, the ‘follow the money’ approach to crime control raises human rights concerns because it interacts with the pre-trial investigative stage through asset restraint, the trial phase through criminal confiscation, and through concurrent and post-conviction civil recovery. The human rights protection that is available differs depending on which stage of the process you are at. Moreover, some Member States of the European Union have adopted more extensive recovery in the form of non-conviction based recovery (also known as non-conviction based forfeiture). Asset restraint and confiscation have been challenged as a violation of human rights obligations: For example, on grounds that they deprive an individual of their property in violation of Art. 1 of Protocol 1 of the European Convention of Human Rights (ECHR), and in the case of restraint, arguably without a fair trial in violation of Art. 6 ECHR. However, civil recovery and other forms of non-conviction based forfeiture have received relatively little judicial attention.