In light of the situation in Ukraine, the European Union (EU) adopted Directive 2024/1226 in 2024, obliging Member States to define the violation of restrictive measures as a criminal offense under their national laws. Furthermore, in cases involving circumvention of restrictive measures relating to asset freeze, the second paragraph of Article 10 presupposes the confiscation of funds and economic resources that the individual used or transferred to a third party in order to conceal them, or in connection with which they submitted false or misleading information to the competent authorities. Confiscated assets on this basis may, in accordance with Directive 2024/1260, be used to contribute to the support mechanism in Ukraine and other affected countries, as well as for their reconstruction.
The institution of asset confiscation related to the offense of circumvention, as a form of confiscation of the objecta sceleris, represents a new sui generis instrument within EU law. As such, it enables the confiscation of an individual’s entire assets within EU jurisdiction solely on the basis of an indirect violation of restrictive measures. This constitutes a significant interference with the right to peaceful enjoyment of possessions, as defined by Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR). Through an analysis of the European Court of Human Rights (ECtHR) case law, the thesis finds that the new legal framework can be compatible with ECHR requirements, but only if the national court is granted the opportunity to assess proportionality in concreto in each individual case, taking into account all relevant circumstances, and – if necessary – refuse to impose confiscation or apply a milder or alternative measure.
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