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

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 jurisdiction^9(*), 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.

* 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