Recently proclaimed decisions upheld by the European Court of Justice (ECJ) under the claims on lifting sanctions on the former Ukrainian officials raised predictable indignation of Ukrainian mass media.
However, if treated calmly the situation does not seem to be very grave.
There are two decisions upheld by EU authorities which are related to imposing sanctions against former Ukrainian officials.
- Council Decision 2014/119/CFSP as of March 05, 2015, which was valid till March 06, 2015 and the list of sanctions attached.
- Council Decision 2015/364/CFSP as of March 05, 2015, which is valid now and will save its validity till March 06, 2016. This decision also contains the list of sanctions somehow amended compared to the list of 2014. For example, it does not mention the names of Portnov, Yakymentko or Kalinin.
Recently published decisions of the ECJ under the claims lodged by members of the Azarov family (father and son), Sergiy Kliuev, Eduard Stavitskyi and Sergiy Arbuzov, as well as quite forgotten decision under the claim of Andriy Portnov as of October 26, 2015, are exclusively related to the first Council Decision validity of which has expired anyway.
Suchwise, although loosing of the case is unpleasant, it will not cause serious implications. Current sanctions were imposed on the basis of another decision and they are still being applied to the persons mantioned in the sanctions list.
Having finished with technical matters let’s consider the philosophical ones: is the General Prosecutor’s Office at fault for loosing the current cases at ECJ?
Initially, namely on March 05, 2014, the sanctions were imposed on the basis of simple application filed by the General Prosecutor’s Office regarding certain individual persons being under investigation of cases related to embezzlement of the state monetary assets and their unlawful transfer abroad. At that moment even two weeks had not passed as the Ukrainian former President, Yanukovych, had left the country and it had been early to expect from the General Prosecutor’s Office to carry out full-scale investigation in relation to individual persons whose names were included into the sanctions lists.
By introducing sanctions merely on the basis of the application of the General Prosecutor’s Office of Ukraine EU provided Ukrainian law-enforcement authorities with certain credit of trust.
As we can see later such sanctions were recognized to be unfounded and were canceled. In that situation the Prosecutor General’s Office and its European colleagues could hardly offer anything better.
The question may be posed differently: if the Prosecutor General’s Office had carried out full-scale investigation and charged the persons named in the sanctions lists of criminal offences would it have helped at the ECJ? The answer is also likely to be negative.
Argumentation of the decisions shows that the court has studied the substantiation of the decision regarding the sanctions only as of the moment when it was upheld and further actions of Ukraine were not considered. Concurrently, with the best will in the world the General Prosecutor’s Office couldn’t have revived the “deadborn” decision regarding the sanctions list.
What is to be expected? First of all, no matter how unpleasant it would be, the EJC will probably cancel Council Decision as of March 05, 2014 also in regard to the former officials who managed to overturn it. It is highly probable that the same decision will be upheld in the case No. T-346/14 under the claim lodged by Viktor Yanukovych.
As it was mentioned the practical significance of such wins will not be of great scale. Of much greater interest must be the similar claims lodged against the decision regarding the second list of sanctions as of March 05, 2015, which is valid now.
For the time period which passed since the Revolution of Dignity the Prosecutor General’s Office have had a possibility to gather enough evidence to substantiate corresponding sanctions. That is why the decision as of March 05, 2015 has every chance to survive.