The Right to a Fair Trial and International Cooperation in Criminal Matters: Article 6 ECHR and the Recovery of Assets in Grand Corruption Cases

18 Pages Posted: 3 Oct 2013

See all articles by Radha Ivory

Radha Ivory

Basel Institute on Governance; The University of Queensland, T.C. Beirne School of Law

Date Written: September 26, 2013

Abstract

Are fair trial rights general principles of transnational criminal law (TCL)? If so, how do they protect individuals who are affected by transnational proceedings? Posing these questions in the context of international cooperation efforts aimed at ‘asset recovery’, this contribution asks whether State Parties to the European Convention on Human Rights (ECHR) are likely to violate the right to a fair trial in Article 6 ECHR when they directly enforce confiscation orders that are issued abroad with respect to the proceeds, objects or instrumentalities of high-value, high-level political corruption offences or substitute assets. The European Court of Human Rights (ECtHR) considers that ECHR State Parties might exceptionally violate Article 6 ECHR in cooperative cases if the alleged victim ‘has suffered or risks suffering a flagrant denial of a fair trial in the requesting country’. Surveying its case law, I argue that the ‘flagrant denial of justice’ standard greatly attenuates the right to a fair trial in cases of international cooperation in criminal matters. In practice, the Court appears unwilling to find violations of Article 6 ECHR in such cases when the foreign proceedings do not involve allegations of treatment contrary to Articles 2 or 3 ECHR. This, it is submitted, reflects the difficulty of assessing ‘fairness’ in globalised law enforcement situations, a factor that also complicates efforts to deduce a general principle of a right to a fair trial from ‘justice’ as an objective of TCL. If those principles are formulated inductively and comparatively, the ECtHR’s case law nevertheless goes some way towards showing that a weak transnational fair trial right may be a general principle of TCL within the ‘legal space’ of the ECHR.

Keywords: fair trial, human rights, corruption, asset recovery, transnational criminal law, flagrant denial of justice, confiscation

Suggested Citation

Ivory, Radha, The Right to a Fair Trial and International Cooperation in Criminal Matters: Article 6 ECHR and the Recovery of Assets in Grand Corruption Cases (September 26, 2013). Utrecht Law Review, Vol. 9, No. 4, p. 147-164, September 2013, Available at SSRN: https://ssrn.com/abstract=2334716

Radha Ivory (Contact Author)

Basel Institute on Governance ( email )

Steinenring 60
Basel, 4051
Switzerland

The University of Queensland, T.C. Beirne School of Law ( email )

The University of Queensland
St Lucia
4072 Brisbane, Queensland 4072
Australia

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