Civil Asset Forfeiture and the Presumption of Innocence under Article 6(2) Echr
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| DOI | http://doi.org/10.1177/203228441400500206 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 2, 2014 221
CIVIL ASSET FORFEITURE
AND THE PRESUMPTION OF INNOCENCE
UNDER ARTICLE6(2) ECHR
J B*
ABSTRACT
is article deals with so-called civil asset forfeiture (CAF), or non-conviction based
con scation, and the presumption of innocence (POI). CAF measures are civ il actions,
directed against proceeds of cr ime, which facilitate the forfeiture of suspected criminal
proceeds, even when it has not been possible to achieve a criminal conviction. CAF
emphasises the unlaw ful provenance of the property, rather that the guilt of the property
holder, and is generally considered to be preventive, rathe r than punitive, in nature. One
of the central concerns raised in rel ation to CAF is that the respondent can be excluded
from some of the basic safeguards normally conferred on a defendant in criminal
proceedings, including the POI. i s article analyses the relationship between CAF and
the POI as expressed in Article6(2) of the European Convention on Human Rights
(ECH R). Ov erall , it i s con clud ed th at Art icle 6(2) wi ll nor mall y not b e app lica ble to CAF
proceedings. However, even if the POI were considered to apply, it is concluded that it
would be unlikely that this would have a dramatic e ect on the operation of forfeiture
proceedings, as the ECHR is mainly concerned with iss ues of procedural fairness rather
than substantial unreasonablenes s.
Keywords: asset recover y; ECHR; presumption of innocence
* Post-doctoral res earch fellow, Facult y of Law, University of Bergen, Norw ay. E-mail: johan.bouc ht@
jur.uib.no. e article is written withi n a post doc-project on ex tended asset recovery mainly
nanced by the Nor wegian Research Counci l (FRISAM) and in part by the Fu nctionality of the
Crimina l Justice System project at t he Faculty of Law, Universit y of Bergen. I wish to tha nk Andrew
Ashworth, Iain Cameron, Michele Panzavolta, Julian V. Roberts and Jon Petter Rui for va luable
comments on earlier d ra s of th is paper.
Johan Boucht
222 Intersentia
1. INTRODUCTION
A fundamental pr inciple underpinning crimina l justice policy is that the perpet rator
must not pro t from his crime. It follows that criminal con scation following a
conviction is an important mechanism to deprive a defendant of nancial bene t
derived from his crimi nal behaviour.1
However, criminal con scation is not always possible due to the di culties
inherent in showing that the property derives from a particular criminal o ence.
is can be the case, for example, where individuals suspected of involvement in
more serious criminality committed with the intent of achieving economic pro t
(e.g . tra cking in narcotics, smuggling and money laundering) possess property to
an extent that does not reasonably correspond to their lawful income. Although it
may be clearly probable that the property or goods in question originate from
criminal activity, a con scation claim may be rejected if it cannot be shown that t he
property derives from a particular criminal o ence. In order to address situations
such as these, and to make it ‘easier’ for the state to successfully claim con scation,
rules on so-called extended con scation have been introduced.2 In extended
con scation t he requirement to concretise the crimi nal o ence from which t he assets
originate has been moderated, so that instead of targeting a particular preceding
o ence, extended con scation o en pursues proceeds from more vague preceding
criminal activity. Traditional criminal procedural safeguards have usually also been
watered down, for example by a reversed burden of proof or a lowered standard of
proof (or both).
However, the opportunities provided by con scation and extended con scation
are not considered su cient in light of intensi ed transnational and international
economical ly motivated (and o en organis ed) criminalit y.3 Som e E u ro pe an co un t ri es ,
for example the United Kingdom, Italy, Bulgaria and Slovenia, have therefore
introduced so-called Civil Asset Forfeiture (CAF), or non-conviction based
con scation, schemes in order to increase e ciency in the eld of asset recovery.4 In
the United States, CAF schemes have ex isted for a long time both at federal and state
1 Instrumenta lities (instrumentum sceleris) and the produce of cri me (productum sceleris) are a lso
normally subje cted to con scation (or forfeiture).
2 See Johan Boucht, ‘E xtended Con scation and the Propos ed Directive on Free zing and Con scation
of Crimina l Proceeds in t he EU: On Strik ing a Balance between E ciency, Fairness and Legal
Certainty’, European Journal of Crime, Cri minal Law and Criminal Pr ocedure (2013), 127–162 .
3 See e.g. Proposa l for a directive of the Eu ropean Parliament and of t he Council on the free zing and
con scation of proceeds of cri me in the Europea n Union, COM(2012) 85 nal, p.2, where the
Commission conclu ded that “although reg ulated by EU and nationa l laws, con scation of crimin al
assets remai ns underdeveloped and under utilised”.
4 See e.g. Europea n Parliament Report on t he proposal for a direct ive of the European Pa rliament and
of the Council on t he freezing a nd con scation of proceeds of crime in the European Union
(COM(2012)0085 – C7–0075/2012 – 2012/0036(COD)), A7–0178/2013, 34.
Civil Asse t Forfeiture and the Presu mption of Innocence under A rticle6(2) ECHR
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 2, 2014 223
level.5 e EU has also discussed the possibility of introducing a common non-
conviction based con scation scheme amongst member s tates.6
Civil forfeiture measures that are directed against tainted property (i.e. the
proceeds of crime) are detached from possible criminal proceedings, and pursued in
order to forfeit suspected criminal proceeds even when it has not been possible to
secure a crimi nal conviction. CAF thus rest s upon a principle that a holder of property
cannot rightfully own property that is obtained by unlawful conduct; and these
measures therefore target the proceeds of unlawful activity that the respondent does
not have any right to retain.7 CAF is normally considered to be preventive in nature,
and to emphasise the unlaw ful nature of the property, rather than b eing punitive and
deterrent.8
Arguably, the trend towards more extensive forfeiture schemes as general law
enforcement tools can be seen as part of a new stream in criminal justice policy,
particula rly in response to organised crime, oriented towards the nancial pro ts of
crime, which ‘strive s to curb cri me by taki ng away the pro ts of crime , rather tha n by
punishing the ind ividuals who have allegedly committed t he crimes’.9 However, from
a criminal justice point of view this trend also gives rise to questions as to how such
measures comply with fundamental principles of criminal and criminal procedural
law. is is so because of CAF’s charac ter of lying in the borderland between cri minal
and civil measu res. One such basic principle, of particular interest for th is inquiry, is
the presumption of innocence (POI) as expressed in Article 6(2) of the European
Convention of Human Rights (ECHR).10
5 See Stefan D. Cas sella, Asset For feiture Law in the United States ( JurisNet LLC, 200 7), 1–27.
6 See COM(2012) 85 nal. e nal D irective on the freezing a nd con scation of instr umentalities
and proceeds of cr ime in the European Union (2014/42/EU L127/39) does not, however, provide for
the establis hment of a non-convic tion based con sc ation regi me in the EU (see als o 2012/0036(COD),
28 November 2013). Article 4(2) states instead that where ‘regular’ con scation would not be
possible, ‘at least where s uch impossibility is t he result of illness or absc onding of the suspected or
accused person, Member States shal l take the necessary mea sures to enable the con scat ion of
instrument alities and proceeds i n cases where crimina l proceedings have been in itiated regarding
a crimina l o ence which is liable to g ive rise, directly or ind irectly, to economic bene t, a nd such
proceedings cou ld have led to a criminal convic tion if the suspected or acc used person had been
able to stand tri al’. For a critical discu ssion of the original proposa l, see J.P. Rui, ‘Non Conviction
Based Con scation in the EU – a n assessment of Article5 of the Proposal for a d irective of the
European Parli ament and of the Council on the f reezing and con scat ion of proceeds of crime in
the European Union’, ERA Fo rum (13/2 012), 3 49– 360.
7 See Smith, Owen a nd Bodnar on Asset recovery. Criminal con sca tion and civil recovery, Binder II
(London: Oxford University Press 2012), I-1023. See also Cec il Walsh v. Director of the Assets
Recovery Agency [20 05] NICA 6, p.7 and Justice Stevens in i n U.S. v. Ursery, U.S. U20022 (1996).
8 Ben Emmerson et al., Human Rights and Criminal Ju stice, 3 ed. (London: Sweet & Maxwel l
2012), 204.
9 See Guy Stessens , Money laundering: a new international law enforcement model (Cam brid ge:
Cambridge Univer sity Press 2000), 12.
10 See Jon Petter Rui, ‘ e Civil Asset Forfeiture Approach to Organised Crime. Exploring the
Possibilities for a n EU model’, Eucrim (4/2011), 164. Rui also points at other potenti ally problematic
issues: 1) the self-incr imination defence in A rticle6(1) ECHR, 2) the ne bis in idem principle in P.4
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