Published online by Cambridge University Press: 02 January 2018
Civil forfeiture is playing an increasingly prominent role in the fight against organised crime. While this tool is attractive to law enforcement agencies, it does give rise to concerns under Art 6 of the ECHR. Such proceedings ought to attract the full range of enhanced procedural protections inherent in the criminal process. Even if the Strasbourg Court decides otherwise, there is an argument that the presumption of innocence ought to apply where civil forfeiture proceedings are instituted against a person subsequent to that person being acquitted in criminal proceedings. The Strasbourg jurisprudence, though, is permeated by confusion and inconsistency, which does not inspire confidence that the rights of the individual will be protected. The final section of this paper, then, considers whether civil forfeiture represents a proportionate response in the fight against organised crime. Ultimately, though, given lack of information on such crime, we cannot provide an answer either way – what can be said, though, is that civil forfeiture has had a significant impact on the rights of the individual.
I would like to thank Professor Clive Walker, Professor Dermot Walsh, Professor Louise Ellison and Dr Carole McCartney for their helpful comments on a previous draft.
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2. See eg the Proceeds of Crime Act 2002, as amended (UK) and the Proceeds of Crime Acts 1996–2005 (Ireland).
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26. Ibid, para 3.7.
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28. Engel v Netherlands (no. 1), above 27, para 79.
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30. Ibid.
31. AP, MP and TP v Switzerland [1998] 26 EHRR 541, para 40. Cf Demicoli v Malta [1992] 14 EHRR 47; Ravnsborg v Sweden [1994] 18 EHRR 38; Garyfallou AEBE v Greece [1999] 28 EHRR 344; Kadubec v Slovakia [2001] 33 EHRR 41; Västberga Taxi Aktiebolag and Vulic v Sweden, App. No. 36985/97, 21 May 2003.
32. Weber v Switzerland [1990]12 EHRR 508; Ravnsborg v Sweden, above 31; Garyfallou AEBE v Greece, above 31. The absence of imprisonment in lieu is not, however, decisive. Västberga Taxi Aktiebolag and Vulic v Sweden, above 31.
33. Campbell and Fell v UK [1985] 7 EHRR 165 (violation of Art 6).
34. Demicoli v Malta, above 31 (violation of Art 6).
35. Bendenoun v France [1994] 18 EHRR 54 (no violation of Art 6); Västberga Taxi Aktiebolag and Vulic v Sweden, above 31 (violation of Art 6).
36. Schmautzer v Austria [1996] 21 EHRR 511 (violation of Art 6).
37. Findlay v UK [1997] 24 EHRR 221 (violation of Art 6).
38. Pierre-Bloch v France [1998] 26 EHRR 202 (Art 6 not applicable).
39. Malige v France [1999] 28 EHRR 578 (no violation of Art 6).
40. Kadubec v Slovakia, above 31 (violation of Art 6).
41. Lutz v Germany [1988] 10 EHRR 182 (no violation of Art 6); Garyfallou AEBE v Greece, above 31 (violation of Art 6); Lauko v Slovakia [2001] 33 EHRR 40 (violation of Art 6).
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45. [1984] 6 EHRR 409, para 53. In both Bendenoun v France, above 35, para 47 and Västberga Taxi Aktiebolag and Vulic v Sweden, above 31, para 79, tax surcharges were said to serve both deterrent and punitive purposes. Cf AP, MP and TP v Switzerland, above 31, para 41. In Malige v France, above 39, para 39, although the imposition of penalty points for a driving offence was said to have a preventive character, it also had a punitive and deterrent effect and, as such, was akin to a secondary penalty. In Lauko v Slovakia , above 41, para 58, the Court, rejecting the contention that a minor offence was preventive and educational, found that it served both deterrent and punitive purposes. In Kadubec v Slovakia, above 31, para 52, the imposition of a fine and an order to pay costs of proceedings was found to serve a deterrent and punitive purpose. In contrast, see Pierre-Bloch v France, above 38, paras 56, 57, where the forfeiture of a parliamentary seat and disqualification from standing for election for a period of 1 year was held not to be a criminal sanction.
46. [2004] 39 EHRR 1.
47. Ibid, para 102. Cf Janosevic v Sweden [2004] 38 EHRR 22, para 68.
48. See eg Gale v Serious Organised Crime Agency, above 7.
49. See eg Murphy v GM, PB, PC Ltd [1998] IEHC 5.
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55. These are £10,000 and €13,000, respectively.
56. This paper is only concerned with civil forfeiture, and deliberately does not engage with the substantial body of jurisprudence concerned with post-conviction forfeiture and the ECHR. See eg Phillips v UK, App. No. 41087/98, 5 July 2001; Welch v UK [1995] 20 EHRR 247.
57. M v Italy App. No. 12386/86, 15 April 1991.
58. Our concern here is only with the issue of confiscation. It is worth mentioning that the terms ‘confiscation’ and ‘forfeiture’ are often, erroneously, used interchangeably. For the sake of consistency, this paper retains the use of ‘confiscation’ and ‘forfeiture’ as used by the courts in their relevant judgments. Cf Profits of Crime and Their Recovery: Report of a Committee Chaired by Sir Derek Hodgson (London: Heinemann, 1984).
59. M v Italy, above 57, at 95.
60. Ibid, at 97.
61. We will consider the presumption of innocence under Art 6(2) in more detail in the next section.
62. M v Italy, above 57, at 97.
63. Ibid, at 98.
64. Cf Naylor, above 1, at 41. In the next section, we will consider allegations of criminal wrongdoing in civil proceedings.
65. M v Italy, above 57, at 98.
66. Ibid.
67. Air Canada v UK [1995] 20 EHRR 150.
68. The Strasbourg Court was concerned with both property rights and the right to a fair trial. This paper confines itself to Art 6 issues.
69. Cf Lauko v Slovakia, above 41.
70. Air Canada v UK, above 67, at para 6 of his dissenting judgment.
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75. See eg Bochan v Ukraine App. No. 7577/02, 3 May 2007.
76. See n 51 and associated text.
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78. Bochan v Ukraine, above 75, para 78; Lutz v Germany, above 41, para 60.
79. [2011] UKSC 49.
80. [1994] 17 EHRR 221.
81. Ibid, para 13.
82. Ibid, para 30.
83. Leutscher v Netherlands [1997] 24 EHRR 181.
84. Ibid, para 14.
85. Ibid, para 31.
86. [2001] 33 EHRR 56.
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89. It is significant that after failing to secure a criminal conviction, it is the state that initiates civil forfeiture proceedings. That is very different to, for example, a situation in which an alleged victim initiates proceedings for compensation. We shall return to this in due course.
90. [2005] 41 EHRR 7.
91. Ibid, para 13.
92. Ibid, para 41. This is important in relation to whether civil forfeiture ought to be regarded as a ‘criminal’ measure – see above.
93. Ibid, para 42.
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97. Ibid, para 19.
98. Kadubec v Slovakia, above 31.
99. The obvious answer would appear to be that, in Ringvold, the civil proceedings were not a consequence and the concomitant of the criminal proceedings, more on which later.
100. Ringvold v Norway, above 96, dissenting opinion of Costa J.
101. Ibid, dissenting opinion of Costa J.
102. App. No. 30287/96, 11 February 2003.
103. This case might then be seen as analogous to the situation in both Sekanina and Rushiti.
104. App. No. 30287/96, above 101, para 46.
105. Ibid, para 47.
106. Ibid, para 48.
107. Gale v Serious Organised Crime Agency, above 7, para 19.
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128. Ibid, para 34.
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130. Air Canada v UK, above 67, paras 41, 42.
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