Sanctions from the Perspective of the Right to Property. Confiscation of Assets

Since the first sanction package responding to the Russian invasion of Ukraine in 2022, the EU and a number of other states have been gradually tightening sanction regimes as the Russian aggression continued. Moreover, as a consequence of the gravity and brutality of the aggression, calls for the confiscation of frozen assets have been voiced by representatives, namely, of Western countries and of the EU. More than 2 years after the beginning of the aggression, the anticipated widespread confiscation of Russian assets has not materialized, with only sporadic developments noted in a few countries such as Canada and Estonia. The apparent disparity between political proclamations and the limited practice of confiscatory measures may signify legal uncertainties and challenges associated with this particular legal instrument. Given the overall theme of the book (and also of the complexity of the topic), this chapter focuses on the perspective of the individual and the right to the free enjoyment of property through the optics of the European Convention on Human Rights and its Additional Protocol 1. In the first section, the contribution provides an overview of the recent developments pertaining to the legislation and practices of states in adopting confiscatory measures in response to Russian aggression. Notably, this encompasses significant amendments to national laws in Canada and Estonia. The subsequent section of this chapter delves into the legality of confiscatory measures, examining them through the lens of Article 1 of Additional Protocol I. This analysis involves an examination of the case law of the European Court of Human Rights, which addressed confiscatory measures within various, often historical, contexts. The chapter draws attention to the Court’s conceptualization of exceptional circumstances, developed in cases where the provision of either no or only partial compensation for the expropriation of private property was not deemed inherently contradictory to Article 1 of Additional Protocol 1. The authors posit that this conceptual framework could potentially serve as a legal construct for framing confiscatory legislation and subsequent measures, contingent upon the scope and other conditions governing these measures. In addition, this chapter provides a succinct reference to the jurisprudence of the Court of Justice of the European Union, particularly in its examination of the matter of reversibility. This aspect appears to serve as a legal foundation upon which this Court bases its determinations regarding the permissibility of asset freezes.