Johan Boucht
BI Norwegian Business School, Norway
Abstract
In recent years, non-conviction-based confiscation (NCBC) schemes—which allow for the confiscation of assets without a conviction (or, in some cases, even prosecution) for a criminal offense—have proliferated in Europe and around the world.
These schemes expand the scope of confiscation but have largely been found to comply with the European Convention on Human Rights (ECHR). In some recent cases, the European Court of Human Rights (ECtHR) has examined NCBC schemes through the lens of the presumption of innocence under Article 6(2) of the ECHR, 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 attribute criminal liability to the individual.
This article analyzes the relationship between the second aspect of the presumption of innocence under Article 6(2) of the ECHR and NCBC. It is suggested, among other things, that a distinction should be made between NCBC proceedings in which the assets can be linked to a specific offense and cases where this is not the case.