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The regime of freezing and seizure of assets in
criminal proceedings and their compatibility with recognized international
human rights.
1) Introduction
2) International level
I. United Nations
II. International Criminal Court
3) Abuses and controversy
4) Compatibility with international human rights
Introduction
Article 1 (g) of the Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime and the Financing of Terrorism of
the Council of Europe1(*)
defines «freezing» or «seizure» as temporarily prohibiting
the transfer, destruction, conversion, disposition or movement of property or
temporarily assuming custody or control of property on the basis of an order
issued by a court or other competent authority.
The regime of freezing and seizure of assets in criminal
proceedings is a provisional measure that can lead to forfeiture or
confiscation which is usually carried out in a sentence pursuant to a
conviction and is a punitive act against the offender.
On the domestic level, this regime can take different forms in
criminal proceedings depending on the legal system (common law, civil law,
Roman Dutch or any other law system).
On the regional and global levels it seems to have a bigger
impact or a huge scope of usage when it comes to the fight against terrorism
and transnational organised crime. Indeed, terrorism acts/attacks have badly
shaken the globe in the last two decades.
Terrorism has claimed tens of thousands of lives during
the 1990s. Among the more gruesome episodes are the series of violent attacks
in Algeria, the assassination attempt on Egyptian president Hosni Mubarak in
Addis Ababa in 1995, the massacre of 58 foreign tourists and four Egyptians in
Luxor, Egypt, in November 1997, the simultaneous attacks against the two
embassies of the US in Nairobi and Dar es Salaam in August 1998, and the
unsuccessful attempts to destroy another embassy in Kampala. Many have come to
regard the bombings of the embassies of the US in Dar es Salaam and Nairobi as
a dress rehearsal of the events of 11 September 2001. Terrorism struck Kenya
again at the close of 2002 when a suicide bomb destroyed a popular tourist
hotel in coastal Mombasa. Almost simultaneously, an attempt was made to shoot
down a civilian aircraft taking off from the airport nearby.2(*)
Having almost come together in different ways, times and
level, the international community has decided to react against terrorism using
sometimes this mechanism of freezing and seizure of assets as the most onerous
method by which to deprive terrorist groups of financial means, thereby
discouraging the financing of international crime with the intent of preventing
future attacks.
International level
I. United Nations
We must treat with caution any claim by the anti-crime and
anti-terror regime holding seizure and forfeiture rights as customary
international law norms. While treaties prohibiting specific acts popularly
understood as 'terrorist' date back to the 1960's, the search for a single,
global definition has only gained momentum since September 11, 2001.3(*)
It's also important to point out that In declaring terrorism a
threat to international peace and security, the Council noted that there was an
intimate connection between terrorism and transnational organized crime,
especially money laundering, illicit drug trades, illegal arms-trafficking and
illegal movement of potentially deadly substances. It therefore emphasized the
need for regional and international responses to this phenomenon. States were
further called on to sign all "relevant international conventions and protocols
relating to terrorism", including by name the Convention for the Suppression of
the Financing of Terrorism (December 1999).
This Convention for the Suppression of the Financing of
Terrorism allows measures that open doors to the freezing and seizure of assets
related to terrorism and envisages states drawing up specific agreements to
enable sharing those related benefits, or using them to provide relief to
victims. Similarly, the Convention on Prevention of Transnational Organized
Crime permits signatory states to appropriate proceeds into a fund, which will
then be used to develop and strengthen technical procedures, especially within
developing states which would otherwise be unable to maintain the standard
required. The Arab League Convention for the Suppression of
Terrorism4(*), however,
seems directly opposed to these measures of confiscation, and specifically sets
out that any property or proceeds seized may be used in evidence provided there
is a guarantee that they will be returned.5(*) This different approach by the Arab League on this
seizure issue has an impact on the status of this regime in international
law.
Indeed, the two main sources of international law are treaty
and custom. Whereas treaties create obligations only for the signatory states,
rules of custom are binding by virtue of their general acceptance either by the
entire community of states or by a region. Treaties, if accepted widely enough,
can pass into custom6(*).
The significance of the Arab League being opposed at a certain
degree to these proceedings shows that it can't fall yet under customary
international law.
II. International Criminal Court
It is really important to mention the use of the regime of
freezing and seizure of assets in the context of the International Criminal
Court (ICC). First, ICC jurisprudence has made significant strides in
acknowledging the rights of victims.
The Statute has importantly recognized the right of
victims to participate in proceedings, not only as witnesses of the crimes
within the jurisdiction of the International Criminal Court (ICC) but as
persons with a valid interest in the outcome. It has also made it possible for
the ICC to order reparations to, or in respect of victims, including
restitution, compensation and rehabilitation. This is a significant departure
from previous international criminal tribunals, and one that is likely to have
a major impact on the course of justice before the ICC. Article 75, paragraph 1
of the Statute provides that The Court shall establish principles relating to
reparations to, or in respect of, victims, including restitution, compensation
and rehabilitation. On this basis, in its decision the Court may, either upon
request or on its own motion in exceptional circumstances, determine the scope
and extent of any damage, loss and injury to, or in respect of, victims and
will state the principles on which it is acting, These principles are further
elaborated upon in the Rules of Procedure and Evidence.7(*)
Second, reparation procedures developed by the ICC include
seizure and forfeiture. Once a warrant arrest or a summons has been issued, the
Pre-trial Chamber may make an order for protective measures to ensure that any
assets which might be the subject of a future reparations order are maintained.
That's what the article 57.3.e of the Rome Statute is about. And on its article
93.1.h & k on other forms of cooperation, States Parties are required to
assist in the execution of searches and seizures and the identification,
tracing and freezing or seizure of proceeds, property and assets and
instrumentalities of crimes for the purpose of eventual forfeiture, without
prejudice to the rights of bona fide third parties. Ultimately, the ICC hopes
to seize the assets of offenders and order them to pay compensation to their
victims. Seizing the proceeds of crime has proved very difficult for national
courts. The authorities must locate the proceeds and then must prove that they
are linked with crime. This is not always easy, and in Europe also raises legal
issues under the European Convention on Human Rights. International experience
recovering funds from perpetrators is miserable8(*).
Abuses and controversy
The widespread use of the regime of freezing and seizure of
assets in criminal proceedings, which usually involve assertion of in rem
jurisdiction9(*), has
also brought many complaints about their misuse to deprive innocent persons of
their lawful property and can have an impact on their trial rights. Without a
requirement to prove that a crime had been committed, much less committed by
the party in possession of the property, it has become too easy, critics
attest, for law enforcement personnel to seize and prosecutors to forfeit
properties because it will likely require significant resources to recover
seized assets. This may be because in such cases the courts no longer abide by
the old common law rule that the party in possession is to be presumed the
lawful owner unless it is proved otherwise.10(*)
In 1989, the United States Supreme Court ruled that the
Government could freeze the assets of many criminal defendants before trial
without regard to whether the person would have enough money left to hire a
defence lawyer.11(*)
The most basic right of the accused is to be seen as a
person before the law and to be entitled to its equal protection. This is the
essential component of many other trial rights, because people deprived of
recognition by the law will not gain access to the compendium of rights at all.
The right to protection by the law entails a right to an effective remedy, for
which competent bodies must be set up by law. The composition of such a body is
particularly important where the trial is criminal in nature... There are
further requirements that protect each individual as his or her case is tried.
All accused must be presumed innocent until proven otherwise, and a case of
guilt must be made without relying on the accused incriminating him or herself.
An additional principle is that every person is entitled to legal assistance of
his or her choice. Failure to provide legal assistance may mean that a trial is
unfair, and thus below the required human rights standard. These rights vest in
everyone and are activated when a person is charged with a crime. They are
recognised (albeit to varying degrees) in the International Covenant on Civil
and Political Rights and, to a lesser extent, the Universal Declaration of
Human Rights, also afford exceptional rights to refugees and asylum
seekers...in cases where expropriation is allowed within the state, it must be
subject to equitable compensation, and for the public benefit. Property rights
are intimately linked to trial rights in this context. Seizure of property as a
preventative measure against crime is often posited not as a punitive but as a
civil measure. Once the confiscation is characterised as civil, the state is
entitled to make incursions into property rights, without having to follow up a
confiscation with a criminal charge. This means that the onus lies with the
alleged criminal to show that the property is not linked to criminal activity,
a difficult requirement to meet. To the extent that this creates a reverse
onus, it violates the right against self-incrimination and the right to a fair
trial.12(*)
However, outside of the United States, and in international
jurisprudence, there should be a balance between the public interest, threat to
the peace, security, well-being and the individual trial rights like the
protection of accused persons, property rights and the right to privacy.
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 Rights15(*) 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".
* 1 ETS No.198, Warsaw,
16.V.2005.
* 2 Charles Goredema,
Initiative against terrorism in Southern Africa. Implications for human
rights, African Security Review Vol 12 No 1, 2003.See:
http://www.iss.co.za/pubs/ASR/12No1/EGored.html
( accessed 06 September 2008)
* 3 CH Powell and IA Goodman,
Africa and Terrorism, Joining the Global Campaign, Monograph No 74,
July 2002, see:
http://www.iss.co.za/pubs/Monographs/No74/Chap3.html
( accessed 06 September 2008)
* 4 The Arab Convention for
the Suppression of Terrorism, adopted by the Council of Arab Ministers of the
Interior and the Council of Arab Ministers of Justice. Cairo, April 1998.,
Articles 19 and 20. See:
http://www.al-bab.com/arab/docs/league/terrorism98.htm
(accessed 08 September 2008)
* 5 Ibidem
* 6 See:
http://www.law.berkeley.edu/library/classes/iflr/customary.html
(Accessed 08 September 2008)
* 7 Carla Ferstman, The
right to reparation at the International Criminal Court, see
http://www.article2.org/mainfile.php/0106/62/
(accessed 07 September 2008)
* 8 Jo-Anne Wemmers,
Reparation and the ICC: Meeting the needs of victims, Report of a
workshop held January 28th 2006,Universite de Montreal Canada, pge 21
* 9 «Rem» is Latin for
'thing.' When a court exercises in rem jurisdiction, it exercises
authority over a thing, rather than a person.It describes the power a
court may exercise over
property
* 10 See:
http://en.wikipedia.org/wiki/Asset_forfeiture(
accessed 05 September 2008)
* 11 See:
http://query.nytimes.com/gst/fullpage.html?res=950DE7DC103AF930A15755C0A96F948260(
accessed 05 September 2008)
* 12 CH Powell and IA Goodman,
op cit
* 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
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