PROTECTION OF BASIC HUMAN RIGHTS DURING THE APPLICATION OF CONFISCATION OF PROPERTY. ANALYSIS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

Abstract

Confiscation is an important instrument in the fight against organized crime and other forms of serious crime.Confiscation, which is an act of seizing of someone’s property by a competent authority, can have implications on certain human rights and freedoms that are foreseen and guaranteed by international conventions. Many states, in the name of a more effective fight against organized crime and serious crimes, have adopted new forms of confiscation that are simpler than the traditional form of confiscation. Confiscation, especially the Non-conviction based in which no conviction is required for the accused and sometimes it is not even necessary to start criminal proceedings for the confiscation of the property can cause a violation of the rights provided by the European Convention on Human Rights, especially the right to a fair trial (Article 6) and the right to property (Article 1 Protocol 1) The purpose of this paper is to analyze the rights guaranteed by the European Convention on Human Rights that can potentially be violated during the application of the confiscation measure. Also, in this paper we will make a brief overview of the two types of confiscation: Conviction based confiscation (in personam) and Non-conviction based confiscation (in rem). The methodology used in this paper consists of an analysis of the relevant decisions of the European Court of Human Rights against the Republic of North Macedonia and other countries as well as an analysis of the relevant legislation. One of the biggest challenges when applying the measure of confiscation is achieving a balance between the protection of basic human rights and the goals to be achieved by the confiscation. From the above, we can conclude that when applying the confiscation, it can easily turn into a punishment, even though it is not intended as such. The ECtHR, in its decisions, has consistently emphasized the importance of procedural safeguards, proportionality and the rule of law when states resort to measures such as confiscation of assets. Therefore, the states should take measures to harmonize the criminal legislation with the international standards that refer to the application of the measure of confiscation.