Non-conviction based confiscation and its implications on human rights : a comparative study

Abstract

The prevailing mantra in asset recovery is that crime must not pay and it is incumbent on the State to attack criminals where it hurts the most, in their profits. The global challenge posed by escalating serious crime necessitates the adoption of more sophisticated strategies for asset confiscation. Challenges in confiscating profits from organised crime arise due to complex financial networks and difficulty in establishing direct links to crimes, for instance, when the perpetrator absconds or dies during or before proceedings commence. In response to these challenges, there has been widespread international support for the adoption of non-conviction-based confiscation methods, offering flexibility to confiscate assets without rigid reliance on criminal convictions. This approach has garnered support from esteemed entities including the UNCAC, the FATF and the EU. In Malta, non-conviction-based confiscation was first partly introduced vide Act VIII of 2015 which amended Article 23C of the Criminal Code and was clarified further through Act V of 2021 which introduced the Proceeds of Crime Act. However, the implementation of these measures raises certain human rights concerns. How does such confiscation align with the accused’s right to a fair trial, when guilt has not been established? How are property rights protected in such instances? With the relatively recent enactment of Maltese legislation, this dissertation explores these implications by examining ECtHR decisions concerning similar challenges faced in other jurisdictions. Special attention is given to the implementation of these measures in England through Part 5 of the UK Proceeds of Crime Act 2002. Following a comparative analysis between Maltese and English legislation, the author concludes that in part, non-conviction-based confiscation infringes on the right to fair trial and the right to property. Accordingly, various recommendations to Part VI of the Maltese Proceeds of Crime Act are posited to strike a balance between the implementation of an effective non-conviction-based confiscation regime and upholding the rights of the individuals concerned.