Legal Opinion: Compatibility of the proposed EU legislation on asset confiscation with the European human rights law framework

On 25 May 2022, the European Commission tabled a proposal that could make a violation of EU restrictive measures an EU crime as defined by the Article 83(1) of the Treaty on the Functioning of the European Union (TFEU) as well as to enable seizure of frozen assets.

The purpose of this legal opinion, prepared by International Partnership for Human Rights (IPHR), is to examine whether asset confiscation, as set out in the proposed EU Directive, complies with the international human rights law framework. More specifically, it analyses the compliance with fair trial rights of asset confiscation orders which are issued following a violation of restrictive measures (commonly known as targeted sanctions).

Using the case law of the European Court of Human Rights (ECtHR or the Court) and the Court of Justice of the European Union (CJEU), this legal opinion argues that the proposed Directive, through its purpose of establishing ‘rules to facilitate the effective implementation of Union restrictive measures and the subsequent recovery of related property where necessary to prevent, detect, or investigate criminal offenses related to the violation of Union restrictive measures’, does not raise any significant challenges with regard to the affected person’s fair trial rights.

Following an introduction presenting the European Commission’s proposal to add the violation of EU restrictive measures as an EU crime and the proposal for a new Directive on Asset Recovery and Confiscation, the legal opinion dissects each type of confiscation measure and their compliance with fair trial rights. The legal opinion then analyses how the preventive function of a confiscation order – a criminal law measure – enables a legitimate balance between achieving EU policy objectives of general interest and protecting the fair trial rights of affected persons. The legal opinion then reaches the conclusion that the proposed Directive is generally compliant with fair trial rights.