On October 26, 2015, the European Court of Justice resolved the case under the claim of Andriy Portnov, adviser to a former President Yanukovych, to the EU Council of Ministers (case No. T-290/14) and determined to remove him from the EU sanctions list.
For Portnov the judgment had rather a moral value: in any case sanctions against him, which the EU Council approved on March 5, 2014, ended on March 6, 2015, and his surname was not mentioned in the new sanctions list.
Ukraine has already rushed to declare the judgment as another evidence of “treason”.
Moderate “followers of treason” argued that the General Prosecutor’s Office worked ineffectively, “did not find” anything against Portnov, and, thus, the European Court “released” him.
Radicals actually accused the prosecutor’s office of conspiracy with Portnov.
In fact, the Court was interested very little, if at all, in the pending investigation of the General Prosecutor’s Office. During consideration of the complaint the European Court of Justice only assessed the justification of initial introduction of Portnov in the sanctions lists in March 2014.
The fact is that the EU Council of Ministers introduced sanctions against Portnov on the basis of a single document – a letter of the General Prosecutor’s Office of Ukraine. The GPO wrote to Brussels that Portnov inter alia is under investigation regarding “misappropriation of public funds and their illegal withdrawal abroad”.
Having read and considered this single letter, the Court noted that
- firstly, the Ukrainian prosecutor’s office gave no evidence in support of the accusation in its message;
- secondly, the investigation was not conducted as regards Portnov, i.e. formally he was not “under investigation”.
In such a situation, the Court found that the letter was not a sufficient ground for imposing sanctions and removed Portnov from the sanctions lists.
In this situation, two questions arise.
The first question: could an effective investigation by the General Prosecutor’s Office save sanctions against Portnov?
Formally, the answer is negative, namely the Court examined justification of putting Portnov on the lists on March 5, 2014, i.e. only in light of the documents that existed in early March last year. Further investigations in this context are not so important.
At this point, they say, even the gods can not bring former up to date.
On the other hand, it can not be ruled out that effective investigation of the Prosecutor General’s Office would give the Council of Ministers much more room for maneuver and permit to retain or even, e.g. re-impose sanctions. Indeed, as noted above, in 2015 Portnov just fell off the sanctions list.
The second question: what will happen to other cases of appeal against the sanctions, which are now considered by the European Court?
After all, Andriy Portnov is not the only representative of the former Ukrainian government, who addressed Luxembourg. Currently, the same judgment of the EU Council 2014/119/CFSP and about on the same grounds is challenged in the Court by another 13 people:
- Viktor Yanukovych (case No. T-346/14) and both sons (cases No. T-347/14, T-348/14),
- Mykola Azarov (case No. T-332/14) and the son (case No. T-332/14),
- the Klyuyev brothers Sergiy (case No. T-341/14) and Andriy (case No. T-340/14),
- Victor Pshonka (case No. T-381/14) and his son Artem (case No. T-380/14),
- Sergiy Arbuzov (case No. T-434/14),
- Eduard Stavytskyy (case No. T-486/14),
- Oleksandr Klymenko (case No. T-494/14),
- Sergiy Kurchenko, a businessman close to the “family” (case No. T-339/14).
Unfortunately, prospects in these cases are not the best both for the Council of Ministers (and for Ukraine).
Recall that in March 2014 judgments on sanctions were made urgently as the EU wanted to demonstrate support of Kyiv in the difficult period, and asked the Ukrainian partners to provide a list of persons whose assets in Europe should be arrested.
Kyiv prepared the list in a few days, and it was taken as a basis of the sanction judgment of the EU Council of Ministers. It is unlikely that the General Prosecutor’s Office could prepare evidence regarding the sanctioned persons for the European colleagues within a short time. Therefore, it is likely that the EU judgment on other former officials was based on the same or similar evidence as in the case of Andriy Portnov.
If so, then Yanukovych, Azarov and other former members of the Ukrainian government have very good chances of winning in the Court.
However, for some of them it is not the end of the story.
After all, if sanctions from Portnov (and some other people) in any case were lifted yet in March 2015, for a number of other complainants, including Yanukovych, Azarov Arbuzov, sanctions were extended.
As fate of sanctions against those who were initially in one list eventually was different, we can conclude that the decision to extend was based on some additional data and evidence from Ukraine.
Therefore, even if the Court removes Yanukovych or Azarov from the sanctions list of the EU Council of 2014, the sanctions against them can survive.
The sanctioned persons would have at least the second round, i.e. consideration of the sanctions judgment of March 5, 2015. The outcome of this litigation is still very difficult to foresee.