Non-conviction Based Sanctions: The Court of Justice v. the European Court of Human Rights, Who Decides?

Abstract

As the Lisbon Treaty enters into force the commitment to the creation of an Area of Freedom, Security and Justice is demonstrated through the expansion in the role of the Court of Justice of the European Union. This expansion is heralded by the Stockholm Programme as providing an opportunity to 'ensure consistency of interpretation' but the position of the Court of Justice in relation to the European Court of Human Rights (ECtHR) is yet to be clarified. In particular, the Stockholm programme emphasises the importance of indentifying and confiscating criminal assets. However, there are disparate practices across the EU as to how the proceeds of crime are recovered. Potential for human rights issues are particularly heightened in those systems which adopt non-conviction based sanctions. The Stockholm programme claims that the case-law of the Court of Justice and ECtHR will be able to develop 'in step' but conflict appears to be imminent. Taking the specific case of non-conviction based recovery of the proceeds of crime this paper will attempt to map the relationship and responsibilities of the Court of Justice and ECtHR post-Lisbon.