Confiscation and the Presumption of Innocence: Key Issues in ECtHR Case-law Considering the Contemporary Broadening of Confiscation’s Scope

Abstract

This article outlines the central positions of ECtHR case-law regarding the application of the criminal limb of Article 6 ECHR, and particularly the presumption of innocence (Art. 6 [2] ECHR), in the field of confiscation. Special focus is placed on the contemporary forms of broadening confiscation’s scope. To this end, the article commences with an analysis of the “autonomous concept” of “criminal charge”. Thereafter, it systematises ECtHR case-law based on the specific form of the extension of confiscation it pertains to. The article argues that, while it is important that the “autonomous concept” of “criminal charge” prevents arbitrary actions by states, a higher level of protection for persons affected by contemporary forms of confiscation is essential. In this context, it argues that the formulation of a more systematic approach by the ECtHR in the field of confiscation is of utmost importance, and it outlines proposals to strengthen the respect of the presumption of innocence in modern confiscation regimes.