Civil Asset Forfeiture and the Presumption of Innocence under Article 6(2) Echr

Abstract

This article deals with so-called civil asset forfeiture (CAF), or non-conviction based confiscation, and the presumption of innocence (POI). CAF measures are civil actions, directed against proceeds of crime, which facilitate the forfeiture of suspected criminal proceeds, even when it has not been possible to achieve a criminal conviction. CAF emphasises the unlawful provenance of the property, rather that the guilt of the property holder, and is generally considered to be preventive, rather than punitive, in nature. One of the central concerns raised in relation to CAF is that the respondent can be excluded from some of the basic safeguards normally conferred on a defendant in criminal proceedings, including the POI. This article analyses the relationship between CAF and the POI as expressed in Article 6(2) of the European Convention on Human Rights (ECHR). Overall, it is concluded that Article 6(2) will normally not be applicable to CAF proceedings. However, even if the POI were considered to apply, it is concluded that it would be unlikely that this would have a dramatic effect on the operation of forfeiture proceedings, as the ECHR is mainly concerned with issues of procedural fairness rather than substantial unreasonableness.