Pecunia non olet? Legal norms and anti-corruption judicial frameworks of preventive confiscation

Abstract

The mechanism of preventive non-conviction-based seizure and confiscation of assets derived from corrupt acts offers an intricate interplay of criminal and civil law norms. The preventive seizure and confiscation approach is analyzed as to its functions, purposes, and norm-changing effects. The normative change is observed in the preventive confiscation as the decision of the judicial or quasi-judicial organs is based on the degree of danger posed by the relevant person and corrupt activity on a suspicion-based inquiry, thus eliminating the need for criminal conviction. The normative side of the mechanism of preventive confiscation seeks to immunize the lawful economy from a “contamination” by the ill-procured assets through corruption. The approach includes various human rights protections established by the European Court of Human Rights such as the right to a fair trial, the right to property, and the rule of law. The preventive mechanism also focuses on measuring the likelihood to commit illegal acts in the future, and management and usage of the proceeds from the illegal corrupt activity for socially oriented goals.