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

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par Christian Tshimbalanga Mwata
 - Licence en Droit 2000
  

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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(*).

* 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

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