Limits to Measures of Confiscation of Property Linked to Serious Criminal Offences in the Case Law of the European Court of Human Rights

In the past thirty years, a growing number of international agreements and acts of international institutions has resorted to different kinds of confiscation (“direct confiscation”, “value confiscation”, “enlarged confiscation” or “non-conviction based confiscation”) to contrast and suppress international and transnational crimes. It can be considered that the flexibility – in terms of variety of measures and functions – of confiscation, together with the forced and permanent deprivation of property to which it always leads, significantly affect the favor towards this measure by States and international organisations. The European Court of Human Rights (ECtHR), taking into account the aforementioned proliferation of international acts and agreements concerning the fight to criminal activities, maintains that common “European and even universal legal standards” can be said to exist which encourage the confiscation of property linked to serious criminal offences. Moreover, the Court has gone so far as to maintain that, in accordance with such “universal legal standards”, States Parties to the European Convention of Human Rights must be given “a wide margin of appreciation with regard to what constitutes the appropriate means of applying measures to control the use of property such as the confiscation of all types of proceeds of crime”. However, the implementation of such measures by States authorities must conform with human rights guarantees – inter alia the principle of legality in criminal matters, due process rights and property rights – provided for in customary and conventional international law. This essay seeks to examine the relevant case law of the ECtHR and to focus on the possibility of reconciling, on the one hand, international obligations on the protection of human rights and, on the other hand, international agreements and acts – concerning the fight against criminal activities – that provide for the various types of confiscation measures.