Non-conviction based confiscation and the second aspect of the presumption of innocence under Article 6(2) ECHR

Abstract

In recent years, non-conviction based confiscation (NCBC) schemes, which enable confiscation without a conviction (or sometimes prosecution) of a criminal offence, have proliferated in Europe, and worldwide. These schemes expand the reach of confiscation but have largely been found compliant with the European Convention of Human Rights (ECHR). In some recent cases, the European Court of Human Rights (ECtHR) has scrutinised NCBC schemes through the presumption of innocence under Article 6(2) ECHR, but not in its most common form, but in its second reputational aspect. Where the defendant has been acquitted in previous criminal proceedings, or where those proceedings have been discontinued, the reputational aspect of the presumption of innocence requires that the subsequent proceedings must not impute criminal liability on the individual. This article analyses the relationship between the second aspect of the presumption of innocence under Article 6(2) ECHR and NCBC. It is suggested, inter alia, that a distinction should be made between NCBC proceedings in which the assets can be linked to a specific offence and cases where this is not the case.