Article 54 of the UN Convention Against Corruption requires state parties to have procedures “to give effect to an order of confiscation issued by a court of another State Party.” Once a party receives a request to return assets backed by a confiscation order issued by a court in the requesting state, the process is simple. The requested party brings the order before a domestic court, and the court orders the assets forfeited. The requested state then hands over the money, securities, title to the property, or whatever is required to transfer the assets from their current owner to the requesting state.
What if the asset’s owner contests the transfer, however? What if the owner asserts the court proceedings that led to the confiscation order issuing in the requesting state were not fair? Does the requested state have an obligation to entertain the complaint?
In a paper for the Geneva Centre for Civil and Political Rights, I argued that the International Covenant on Civil and Political Rights imposes such an obligation on its 169 state parties. It guarantee in article 14 that in any criminal case or civil suit “all persons … shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal.” Thus, a requested state must consider whether a confiscation order issued to support an asset recovery demand complies with article 14. While the rule follows ineluctably from article 14, so far as I could find no human rights court or treaty body had ever been presented with a case where it was applied.
That was because I was ignorant of Professor Radha Dawn Ivory’s analysis in the Utrecht Law Review.
Professor Ivory parses the cases handed down by the European Court of Human Rights construing the fair trial strictures contained in article six of the European Convention on Human Rights. Article six’s requirements are in substance identical to those in the Civil and Political Rights Covenant, and in its jurisprudence the European Court has left no doubt, as Professor Ivory shows, that states that are party to the European Convention must, before returning assets, consider whether the proceedings that led to the court order behind the request were fair.
The leading case is Saccoccia v. Austria. Saccoccia had been convicted in a U.S. court of money laundering and other crimes. An order confiscating his property had issued, and Austrian courts had enforced it. Before the European Human Rights Court, Saccoccia argued that Austria had breached its obligations under article six by failing to take account of the unfair procedures the led to the U.S. confiscation order. Although the Human Rights Court rejected the claim that the U.S. procedures were unfair, it ruled that the Austrian courts had an obligation to consider whether the decision that led to the confiscation order was the result of a “flagrant denial of justice.”
In her article, Professor Ivory explores the procedural and substantive issues raised by Saccoccia and analogous cases involving the recognition of foreign court extradition orders and requests for mutual legal assistance. What are the criteria the European Human Rights Court will use in determining whether a confiscation order was the result of a flagrant denial? How deeply must a national court probe to satisfy itself that a confiscation order was not the result of a flagrant denial of justice?
As more states step up enforcement of their anticorruption laws, the number of confiscation orders will increase as well. This is a salutary development, for it means that more stolen assets will be returned to the states that have been victimized by corruption. But it also means that national courts and international bodies can expect to hear more claims of the kind Saccoccia raised before the Austrian courts and the European Human Rights Court. Professor Saccoccia’s article, and her more recent work (here and here) has initiated an important conversation on how these courts should respond.