Confiscation of unexplained wealth and the right to property under Article 1 ECHR-P1 – in view of recent case law from the ECtHR

The article analyses and reconstructs three recent cases from the European Court of Human Rights (ECtHR) – Todorov and Others v. Bulgaria , Yordanov and Others v. Bulgaria and Isaia and Others v. Italy – concerning non-conviction-based confiscation of unexplained wealth. In these cases, the Court held that for a confiscation measure to be proportionate under Article 1 ECHR-P1 (the right to property), domestic courts must provide some particulars regarding the alleged criminal conduct in which the property liable to confiscation allegedly originated and demonstrate, in a reasoned manner, that those assets could have been the proceeds of that conduct. The paper argues that these judgements collectively establish an emerging doctrine governing the requisite constitutive link under Article 1 ECHR-P1 between the alleged criminal conduct and the property liable to confiscation. This doctrine arguably sets out a minimum threshold not only for the robustness of the evidence which the domestic courts rely on, thereby constraining legal presumptions, but also for the depth of their judicial reasoning. The paper argues that the criteria should apply to all confiscation schemes targeting unexplained wealth, regardless of whether they are framed as criminal or civil in rem , or contingent on predicate criminal proceedings as a trigger. It also develops a methodology – the communicating vessels test – for operationalising the criteria in national courts. The Todorov criteria will serve to protect the rights of the individual without placing an excessive burden on the state seeking to recover proceeds of crime.