ECHR Article 1 para. 2 of Protocol No. 1
Control of the use of property
Forfeiture of a civil servant’s wrongfully acquired property as part of domestic anti-corruption measures: no violation
Facts – In 2004 the first applicant, a former government minister, was charged with abuse of authority and extortion. The Public Prosecutor’s Office of the Ajarian Autonomous Republic subsequently initiated proceedings for forfeiture of property against him and the remaining applicants, all close relatives of the first applicant, for having wrongfully and inexplicably acquired property. In September 2004 the Ajarian Supreme Court ordered the confiscation of six properties. In January 2005, following an appeal by all four applicants, the Supreme Court of Georgia set aside the confiscation of one property and upheld the remaining confiscation orders. The first applicant lodged a constitutional complaint challenging the constitutionality of the provisions governing administrative confiscation proceedings. Dismissing that complaint, the Constitutional Court observed that the relevant legislation, which had been introduced in February 2004, served the public interest of intensifying the fight against corruption.
Law – Article 1 of Protocol No. 1: Far from being a purely administrative confiscation, the impugned measure in the instant case was linked to the prior existence of a criminal charge against a public official and thus represented by its nature a civil action in rem aimed at the recovery of assets wrongfully or inexplicably accumulated by public officials and their close entourage.
The forfeiture measure amounted to interference through control of the use of property. That interference was lawful and pursued a legitimate aim, namely the fight against corruption in the public service.
As to proportionality, the Court examined whether the procedure for forfeiture was arbitrary. In that connection, it noted that on the basis of internationally acclaimed standards for combatting serious offences entailing unjust enrichment and in the face of alarming levels of corruption in Georgia at all levels, various international bodies, including the Council of Europe Committee of Experts on the Evaluation of Anti Money Laundering Measures and the Financing of Terrorism (MONEYVAL), had repeatedly advised the Georgian authorities to undertake legislative measures to ensure the confiscation of the proceeds of corruption-related offences. The Georgian authorities had put those instructions into practice by adopting the legislative amendment of February 2004, thus bringing Georgian legislation in line with the relevant international standards. In its earlier case-law in this sphere, the Court had seen no problem in finding confiscation measures proportionate even in the absence of a conviction establishing the guilt of the accused persons and did not require proof beyond ‘reasonable doubt’ of the illicit origins of the property concerned. It had also considered that confiscation measures could be applied not only to persons directly accused of offences but also to close relatives presumed to possess and manage the ill-gotten property informally or otherwise lacking the necessary bona fides. Having regard to all these considerations the Court found, by analogy, that the civil proceedings in rem in the instant case could not be considered arbitrary or to have upset the proportionality test under Article 1 of Protocol No. 1.
In addition, as regards the proceedings before the domestic courts, the applicants had been duly summoned to make written submissions and to take part in the oral hearing and the public prosecutor’s claim had been duly examined in the light of the supporting documents and the applicants’ financial situation. There was nothing in the conduct of the civil proceedings in rem to suggest that the applicants were denied a reasonable opportunity of putting forward their case or that the domestic courts’ findings were tainted with manifest arbitrariness.
In sum, having regard to the Georgian authorities’ wide margin of appreciation in their pursuit of the policy designed to combat corruption in the public service and to the fact that the domestic courts had afforded the applicants a reasonable opportunity of putting their case through adversarial proceedings, the requisite fair balance between the general interest of the community and the requirements of the protection of the individual’s fundamental rights had not been upset.
Conclusion: no violation (unanimously).
Editorial note: The case is interesting in that it makes extensive reference to several international documents and instruments concerning the fight against corruption. The judgment supports the approach adopted by those instruments by reaffirming the wide margin of appreciation afforded to the States in the area of adoption of measures against corruption.
Human Rights, Crime
Updated: 30 December 2021; Ref: scu.547587