The regime of freezing and seizure of assets in criminal proceedings and their compatibility with recognized international human rights

Compatibility with international human rights

There is need to stress that the human rights dream of a free, harmonious, equal, peaceful, secure and prosperous society which, in return, can be achieved if the major forms of crime such as crimes against humanity, genocide, terrorism are eradicated. And the eradication of these crimes might take some forms that might step on some rights of individuals.

Proportionality and necessity are basic qualities inherent under international law. Consequently, apart from emergency situations, it is permissible to limit rights for legitimate purposes if the measures taken are proportional to the objective, and also the least intrusive means to achieve the objective.^13(*) Under some circumstances, certain rights may be restricted and even where they are phrased in absolute terms, they are subject to the general limitation clauses contained within the Universal Declaration on Human Rights (in article 29) and the International Covenant on Civil and Political Rights (in article 19(3)), and therefore within customary law. The criteria for permissible derogation, as synthesised from the Universal Declaration and the International Covenant, are that the right must: be provided by law, serve a legitimate purpose, and be necessary in a democratic society.

Safety issues might justify restricting certain individual rights for the greater good. For example, since the tragic events of September 11, 2001, airlines justify restrictions on sharp objects including nail files and scissors to reduce the risk of terrorism. This policy is in the interests of public protection although it restricts the freedom of individual members of the public to choose what they take with them when they travel.^14(*)

The Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights^15(*) are more comprehensive:

I.             Limitation Clauses

A.           General Interpretative Principles Relating to the Justification of Limitations

B.           Interpretative Principles Relating to Specific Limitation Clauses

                                             i.              "prescribed by law"

                                           ii.              "in a democratic society"

                                          iii.              "public order"

                                         iv.              "public health"

                                           v.           "public morals"

                                         vi.             "national security"

                                        vii.              "public safety"

                                      viii.             "rights and freedoms of others," or "rights and reputations of others»...

II.                Derogations in a Public Emergency

A.     "Public Emergency Which Threatens the Life of the Nation"

B.     Proclamation, Notification, and Termination of a Public Emergency

C.     "Strictly Required by the Exigencies of the Situation"...

Canadian courts use a method called the Stakeholder Model to decide whether specific laws or policies are «reasonably justified in a free and democratic society». It ensures that policy makers take into consideration the broad range of stakeholder rights and interests and incorporate the weighing and balancing process that judges use when they apply Section 1 of the Canadian Charter. This guarantees that resulting decisions are non-arbitrary and constitutional. Moreover, it makes sure that those who give up their rights find the experience as painless and non-intrusive as possible. The three steps to that model are the following:

Step 1: Identify all stakeholders and their significant arguments;

Step 2: Validate key concerns by matching and weighing similar competing arguments to determine which claims carry greater weight;

Step 3: Ensure minimal impairment of infringed stakeholder rights.^16(*)

The compatibility of the regime of freezing and seizure of assets in international criminal proceedings with recognized international human rights falls under the scope of the balancing of different rights and the limitation and derogation of certain rights. On the domestic and global levels most the crimes such as murder, terrorist acts, genocide, and crime against humanity are "prescribed by law", can affect "public order", "public morals", "national security", "public safety" and the "rights and freedoms of others," or "rights and reputations of others", moreover, they can cause "Public Emergency Which Threatens the Life of the Nation".

* ¹³ Charles Goredema, op cit

* ¹⁴ Shaheen Shariff, Balancing competing rights: A Stakeholder Model for democratic schools. See: http://www.csse.ca/CJE/Articles/FullText/CJE29-2/CJE29-2-Shariff.pdf (accessed 07 September 2008)

* ¹⁵ United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1985/4 (1985).

* ¹⁶ Shaheen Shariff, op cit