The European Union has lived up to its reputation as one of the most active sanctions senders, second only to the United States of America, in response to Russia’s illegal war in Ukraine. Since Russia’s recognition of the Donetsk and Luhansk republics as independent states and its start of the ‘Special Military Operation’ against Ukraine in February 2022, the EU has adopted six sanctions packages. These ‘packages’ involve a series of unprecedented sanctions, not only because of the scale of restrictions that are imposed on Russia but also because they include new types of sanctions. One such example is the banning of Russian media outlets like Russia Today and Sputnik, the former is currently a pending case before the General Court (see here and here for a commentary). This post focuses on the targeted sanctions implemented against Russian individuals. At present, the EU has imposed asset freezes and travel bans against a staggering number of 1158 individuals and 98 companies.
The imposition of restrictive measures, which is the Union’s term for its sanctions, limits an individual’s exercise of their human rights, such as the right to freedom of movement, the right to property, or the right to private life. The present post first briefly reviews who has been sanctioned and why, and then considers these measures’ legitimacy and proportionality and the standard of proof required to justify a listing.
Who has been targeted?
Individuals listed by the EU Council include those considered to be involved or to benefit from the war, namely Russian businesspeople, oligarchs, or politicians. The EU also targets individuals believed to be responsible for war crimes in Bucha and Mariupol. In a rare move, the EU froze the assets of President Vladimir Putin and Foreign Minister Sergei Lavrov; falling short of imposing a travel ban.
Individuals were designated because they were purportedly “involved in the illegal decision”, such as voting in favor of the recognition of Donetsk and Luhansk on 22 February or voting in favour of the war. In later sanctions rounds, targeted individuals were selected because they are considered to have a “role in undermining or threatening the territorial integrity, sovereignty and independence of Ukraine” and/or to hold a position that allows them to benefit from the war (see, for instance, here and here). In order to ensure that sanctions are not circumvented, in some cases the family members of sanctioned individuals have also been listed.
A well-known case is the listing of oligarch Roman Abramovich, who was sanctioned because, due to his prominent position, he has
“been benefitting from Russian decision-makers responsible for the annexation of Crimea or the destabilisation of Ukraine. He is also one of the leading Russian businesspersons involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation, which is responsible for the annexation of Crimea and the destabilisation of Ukraine.” (quoted from statement of reasons)
Abramovich has sued the European Union Council for the sanctions against him, which caused him to not benefit from his sale of the British football club Chelsea (see here), which would have otherwise constituted a breach of the EU restrictive measures. Though the content of his complaint is unknown at this stage, one can imagine that Abramovich would challenge the EU sanctions for, inter alia, violating the right to property (Article 16 of the EU Charter of Fundamental Rights). Considering that he denies having “privileged relations” with the Russian government, he would most likely challenge his listing for not being based on a sufficient factual basis, thereby invoking rights of defense found in Article 47 of the EU Charter of Fundamental Rights.
Any restrictions on human rights need to be a proportionate means to pursue a legitimate aim. As discussed below, the ECJ is habitually deferential to the Council [JV1] [AH2] on this matter, yet, when applying judicial review it verifies that restrictive measures are based on a sufficiently solid factual basis, which tends to be targeted sanctions’ Achilles heel.
Proportionate restrictions in pursuit of a legitimate aim
A restriction on the right to property must be (i) provided by law and be a (ii) proportionate means to pursue a (iii) legitimate aim in the public interest. Seeing as the sanctions are based on Council decisions and regulations, the first condition is undoubtedly met. It is also likely that the ECJ would find the two other criteria to be fulfilled. As Moiseienko writes (2021: 415): “Very often, the CJEU finds interferences with fundamental rights to be justifiable and proportionate in view of the objectives pursued.”
To begin with the measures’ aim, as seen above individuals have been listed for a variety of reasons. That said, in general the purpose of the Russia sanctions would be to impose costs on those who are involved or who benefit from the war in an effort to stop the wrongful behaviour. As explained by Josep Borrell:
“We are targeting the Kremlin, the political and economic elites supporting Putin’s war in Ukraine. The aim of our sanctions is to stop the reckless, inhuman and aggressive behaviour of the Russian troops and make clear to the decision makers in the Kremlin that their illegal aggression comes at a heavy cost.”
It would be difficult to argue that ending the conflict in Ukraine is not a legitimate aim. However, one question is how exactly the imposition of costs on a given individual will cause the Russian government to revert its course of action, particularly when a listed person has no weight in the decision-making process. After all a prominent social-economic position or close personal ties do not necessarily translate into political weight. Under such circumstances, would a limitation on the exercise of a fundamental right be justified? This is where the proportionality assessment comes in, which aims to balance the interests of the individual with the goal pursued.
When reviewing sanctions’ proportionality, the CJEU generally considers “the importance of what was at stake” (Sabra v Council, para. 42; see book chapter by Christina Eckes here). The Court would consider the urgent need to adopt restrictive measures as a means to pressure the Russian government into stopping its wrongful behavior. Framed in this way, the question of a sanction’s effectiveness – its success in pressuring an actor into changing its behaviour – could arise when evaluating its proportionality (see further here). EU courts, however, do not consider whether sanctions will achieve their goal, nor do they consider how sanctions impact an individual and whether the restriction is a justified taking into account their specific circumstances. They frequently reiterate that alternative, less restrictive, measures would not achieve the aim of applying pressure on actions that breach or threaten Ukraine’s territorial integrity and sovereignty (OT v Council, para 65).
In general, the Court is content to look at the significance of the broader policy objective pursued, which in this case would be to end the war in Ukraine. This was reiterated in the abovementioned request for provisional measures: “il convient de rappeler que l’importance des objectifs poursuivis par les actes attaqués est de nature à justifier que ceux‑ci aient pu avoir des conséquences négatives, même considérables, pour le requérant sans que cela affecte leur légalité” (OT v Council, para. 67). Due to how the proportionality principle is interpreted in the context of sanctions – it seems near impossible to argue that a sanction is disproportionate – the ECJ would most likely find that a limitation on the right to property is justified.
“Sufficiently solid factual basis”
Whereas the CJEU tends to be deferential to the Council regarding the aim pursued by the measures and their proportionality, it has annulled restrictive measures for insufficient factual basis.
It is first important to note that, in addition to bringing about a change in behaviour, restrictive measures against individuals are intended to serve a preventive purpose by blocking the targeted individual from committing further violations. They are not meant to be punitive measures that impose a restriction for an act that was previously committed. Suggestions to seize Russian assets, namely in the US but also in the EU, and give them to Ukraine may reverse this logic (see here and here). The freezing of assets is not “intended to produce definitive legal effects” and is a “temporary, precautionary and preventive” measure (Yusef v Commission, para 62). However, the confiscation of property constitutes a permanent limitation on an individual’s access to their assets. On the other hand, as highlighted by Al-Nasser et al, the European Court of Human Rights has previously held that confiscation can be considered preventive.
Whether or not one agrees that restrictive measures are preventive and not punitive (for a discussion see here and here), it has implications for the standard of review that is applied; there is no presumption of innocence or other criminal safeguards. Furthermore, as the sanctions are intended to have a ‘surprise effect’ it is accepted that the Council does not give the designated person prior warning, or indeed inform them of the reasons they have been listed beforehand (Raminez v Council,para. 58). Yet, the right to judicial review, enshrined in Article 47 EU Charter of Fundamental Rights, must be respected. In order for a listing to be upheld, the CJEU requires that there be a “sufficiently solid factual basis. That entails a verification of the facts alleged in the statement of reasons underpinning that decision” (Sabra v Council, para. 37). It is “necessary that the information or evidence produced should support the reasons relied on against the person or entity concerned” (ibid, para. 39). In implementing sanctions, the Council must respect the criteria that they have established for designation. Due to sanctions’ preventive nature, it is enough that one of the reasons for the listing be sufficiently justified (OT v Council, para. 50).
To use Abramovich’s listing as an example, the Council would need to demonstrate that he is a “leading Russian businessperson involved in economic sectors providing a substantial source of revenue to the Government of the Russian Federation”. If Abramovich is able to demonstrate that he has no ties to the Russian government and that his does not provide them with support, or benefit from the war, then this could lead to a successful delisting. In the Sabra v Council case mentioned above, Abdelkader Sabra was designated for being a leading business person whose business “provides financial and economic support for the Syrian regime” and who benefits from his ties to the regime. The General Court found that the applicant had successfully rebutted the claim that he was linked with the Syrian regime and that he supported or benefited from their actions, and thus found that the sanctions against him should be lifted.
As this post had discussed, restrictive measures that directly interfere with the exercise of human rights have been adopted against individuals in order to pressure the Russian government into ceasing the war in Ukraine. Based on the CJEU’s previous case-law, these measures would most likely be considered proportionate restrictions in pursuit of a legitimate aim. The EU Council, however, would need to ensure that the reasons for listing an individual are based on a “sufficiently solid factual basis”.