By adopting sanctions against Russia on a scale never seen before, the European Union has raised many questions about the legitimacy of its decisions and infringed on the basic rights of citizens of EU member states.

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On 16 December 2024, the European Union adopted the next, 15th package of sanctions against Russian legal entities and individuals. This sanctions list also includes tankers of the so-called ‘shadow fleet’ from third countries, individuals and legal entities from China, DPRK, India, Iran, Serbia and the UAE. For the first time imposing restrictions against a number of Chinese companies, the EU justified it by the fact that they, as the Council of Europe believes, help Russia bypass official sanctions to buy components for drones and microelectronics.

In addition, as part of the 15th package of sanctions, the EU Council banned the recognition and enforcement in the EU of judgments issued by Russian courts. As the EU notes, the measure was taken to ‘protect EU companies from recognising damages unlawfully awarded against them by a Russian court’.’

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In a statement, the EU Council said the ‘economic and individual restrictive measures’ against Russia were taken in connection with ‘the ongoing illegal war against Ukraine’ Overall, the sanctions against Russia adopted by the EU are the most extensive and unprecedented in the EU’s history in terms of their scope. Moreover, they affect the interests of legal entities and individuals not only from Russia, but also from third countries. However, the very mechanism for adopting and imposing sanctions and extending them raises many questions and clearly needs legal justification.

Moreover, a number of restrictions and bans are discriminatory in nature and clearly do not comply with either the spirit or the letter of the fundamental treaties of the European Union – the Treaty on the Functioning of the EU of 1957 and the Maastricht Treaty of 1993.

It is also important to note that the sanctions imposed directly harm not only and not so much Russia, but also EU citizens and companies from EU member states.

In general, the situation with the EU sanctions against Russia needs impartial legal analysis and transparency.

Countermeasures as a problematic justification for sanctions

It is necessary to start with the question of the legitimacy of sanctions as such, which is now a frequent subject of debate among legal scholars. A number of jurists believe that the sanctions imposed by the EU against Russia, which would otherwise be illegitimate, are justified in this case because they are countermeasures in response to Russia’s violation of international law and aggression towards Ukraine.

However, from the point of view of international law, only the injured State, in this case Ukraine, can take retaliatory measures or countermeasures. And there is no consensus among legal scholars with regard to third countries, in particular EU countries, regarding the legal validity of taking countermeasures on behalf of a third state.

There is a thesis to justify the EU sanctions that the entire world has suffered from Russia’s aggression towards Ukraine, public order, common values and values of universal humanity. And in this case, some experts believe, we can talk about the possible consideration of sanctions as countermeasures.

But there is a nuance here too: European sanctions against Russian legal entities and individuals violate basic human rights, in particular, the right to property, the right to movement and others. However, no countermeasures can violate these basic rights; there is no legal basis for this.

Human rights may be restricted by the state in certain cases, when it is not possible to achieve the necessary goals in another way and taking into account the principle of proportionality.  But even in this case, the initial restrictive measure must be reflected in the law. Unfortunately, the issue of human rights in the broad sense of the word in the context of sanctions has been left out, although the sanctions directly affect not only Russian citizens, but also residents of EU member states.

Selectivity of sanctions

Moreover, the sanctions are selective rather than blanket, which casts doubt on the fairness of their imposition. Today there are more than two thousand legal entities and individuals on the EU’s sanctions lists against Russia. However, there is no clarity as to what the criterion for their selection was. For example, billionaire and magnate in the field of metallurgy Alisher Usmanov, bankers Mikhail Fridman and Pyotr Aven, as well as many others, are included in these lists, but the richest Russian, the owner of the holding company ‘Nornickel’ with assets in the EU Vladimir Potanin (fortune, according to Bloomberg agency $ 31.4 billion) – not, although back in 2022 sanctions were imposed against Potanin by the U.S., Britain, New Zealand, Canada and Australia.

The situation is similar with legal entities.

We are not talking about imposing sanctions against Vladimir Potanin or thousands of Russian companies, but about creating a transparent and clear, and most importantly, legally flawless system of criteria for inclusion in sanctions lists. 

But the main thing is that the sanctions system itself is now upside down. Sanctions are in essence a reaction to an offence, but the very fact that there has been an offence must be established by a court. If there is no court decision, there are no grounds for imposing sanctions, especially when it comes to individuals.

For minor administrative offences, the decision on the sanction can be made by an authorised body (e.g. traffic police for speeding on a motorway), but even in this case there is a possibility to appeal the decision to the court. The important point is that the rule itself (e.g. speed limit) is clearly defined in the Criminal Code or in the Code of Administrative Offences. The EU sanctions are adopted in packages without any initial legal basis for their adoption against specific individuals.

The EU has called the sanctions against Russia ‘restrictive’ and ‘preventive’. They are aimed specifically at creating conditions in which it will be very difficult for Russia, Russian citizens and Russian legal entities to do business. 

In fact, there is no clear understanding of what is prohibited, because there is no clear and precise system of what specific actions are prohibited. Accordingly, there is no qualifying criterion for the imposition of sanctions against this or that person.

Today’s EU sanctions against Russia have in essence turned from a preventive mechanism into a punitive one and are an instrument of the EU’s foreign policy aimed at achieving geopolitical goals.

That is, their aim is to introduce very uncomfortable provisions for citizens of a certain country, which certainly has a very strong discriminatory aspect. However, the European Union has a ban on discrimination based on racial, national and religious criteria.

The EU sanctions against Russia are based on the strangely understood principle of collective responsibility. As a result, the sanctions include a ban on professions for Russian citizens living in the EU or a ban on banking transactions for amounts exceeding 100 thousand euros for Russian citizens.

Morality and law are separate substances. And if from the point of view of morality no one prohibits to react negatively to the category ‘Putin’s friend’, then in the norms of law this category as a basis for imposing restrictions or punishment is absent.

And when the question of the legality of imposing sanctions against a person comes up in court, we see how judges find it difficult to find a causal link between the person who is subject to sanctions and the sanctions themselves as a legal mechanism. Therefore, there are often not very convincing arguments, which are often based on information from unreliable sources, private opinion and so on.

At the end of September 2024, an Austrian court decided to unfreeze the accounts of Sibur International GmbH, a subsidiary of Russian oil and gas giant Sibur (which, incidentally, is not included in the EU sanctions lists), which had been blocked for three months. The basis for the freezing of accounts by the Austrian bank was a request from the Austrian Interior Ministry. The request was based on information from the Insider Internet portal that the parent company SIBUR Holding is controlled by people included in the EU sanctions lists. The court considered that this information of the Austrian Ministry of the Interior was unfounded and lifted the arrest from the company’s accounts.

One of the main justifications for the introduction of EU sanctions against Alisher Usmanov in 2022 was the information of the American magazine Forbes that the businessman was a ‘front man’ for Russian President Vladimir Putin and ‘solved his business problems’. However, a year ago, the Hamburg Land Court banned the magazine from disseminating this information, considering it discreditable and unproven.

Human rights violations – from Russian citizens to EU citizens

By extending sanctions from specific individuals to their family members, the EU has stepped onto shaky ground, where it is trying to balance the desire to find an acceptable justification for such inclusion in the lists with the realities. It often loses or finds itself in an ambiguous situation. For example, the EU had to lift sanctions against the mother of the founder of PMC ‘Wagner’ Yevgeny Prigozhin, Violetta, on the basis of the decision of the EU Court of Justice, because it was not possible to find any connection between her and her son’s business. By the way, one of the original sources of such information was Wikipedia.

In the case of Alisher Usmanov’s sister Gulbahor Ismailova, there was a misinterpretation of her status in relation to the trusts established by her brother for the purpose of inheritance planning, on the basis of which she was recognised as an ‘associated person’. It should be noted here that the category of ‘associated persons’ as persons connected in one way or another with people on the sanctions list is itself legally shaky. 

The basis for the imposition of EU sanctions against Gulbahor Ismailova was the substitution of concepts. She was included in the sanctions lists on the basis that she was allegedly the beneficial owner of property held in trusts established by her brother. But in fact she was only a beneficiary of these trusts. From the point of view of English law, these are completely different categories. A beneficiary, unlike a ‘beneficial owner’, does not own the trust property.

In its judgement in the Gulbahor Ismailova case in May 2024, the EU General Court essentially recognised this error in the reasoning behind the EU Council’s restrictive measures.

The actual reason for Ismayilova’s inclusion and retention on the sanctions lists was her family ties to her brother, however, as emphasised in a number of decisions of the EU General Court, family ties cannot be the basis for restricting the rights and freedoms of individuals.

In general, the issue of rights and freedoms in the context of sanctions requires separate consideration. In its endeavour to restrict opportunities for Russia in general and Russian business in particular, the EU is violating the rights of its own citizens.

Thus, a number of sanctions packages contain bans on the provision of legal, consulting, IT and auditing services to Russian firms, and even architectural services are prohibited. However, these bans restrict not only and not so much the activities of Russian companies, but also put borders on European companies, lawyers, consultants and businessmen themselves, which is a violation of the right to freedom of entrepreneurship.

Another important aspect is the decline in the standard of living of the EU population itself as a result of the sanctions imposed against Russia, primarily due to rising energy prices. This is also a direct violation of the basic human right to a decent life.

In general, by imposing sanctions against Russia, the EU has created a ‘grey zone’ in which there are no common universal criteria, which allows the law to be ruled for the sake of achieving geopolitical goals, justifying it by the need to comply with higher moral principles.

According to Hungarian Foreign Minister Péter Szijjártó, Hungary has secured the exclusion of Patriarch Kirill, the Russian Olympic Committee and the Russian post-representative to the UN, Vasily Nebenzya, from the EU’s 15th package of sanctions. Hungary, according to Szijjártó, supported the EU’s 15th package of sanctions after it managed to weed out ‘the craziest ideas’ from it and extended the exemption for the MOL company exporting oil products from Russian raw materials.