By Ilona Bērziņa
Internationally renowned lawyers Thierry Marembert and Aaron Bass have raised the alarm that European Union sanctions may be applied for narrow political expediency rather than in the name of the rule of law. The criterion of “influential businessman” allows sanctions to be imposed on wealthy individuals without proven links to the Russian regime. Sworn advocate, head of the Department of Civil Law Sciences at the University of Latvia, Professor Jānis Kārkliņš, points out that this is not lawful because a person can be judged by their actions, not their wealth.
According to Marembert and Bass, while the “influential businessman” criterion was initially applied to individuals working in sectors that finance the Russian government, now it is enough simply to be wealthy. This approach raises concerns that the EU Council may impose sanctions without examining evidence or considering human rights. Asked how justified and lawful this is, BNN invited comments from Jānis Kārkliņš.
“In my view, such an approach is not lawful. You cannot discriminate against a person for their wealth; you can only assess them based on their actions. That is, whether the wealth or influential businessman status was acquired by supporting Russia’s war against Ukraine, or whether there are suspicions that it was obtained through corruption or money laundering. A person cannot be punished just because they are rich. Sanctions by their nature impose significant restrictions on economic activity and daily private life. Imposing them solely on the basis of wealth is excessively restrictive.”
Political interests or rule of law?
The final word must belong to the judiciary, which is independent, not the executive, Kārkliņš emphasises. Otherwise, there is a high risk of mistakes in sanctioning a person, or a temptation to do so for narrow political purposes. The judiciary knows what evidence is sufficient and what is not, he says: “If the EU Council does it, then, first of all, there is a risk that decisions are political, ill-considered, dependent on an individual’s political views and positions, whereas the judiciary is independent. The system should be different. Even if the Council imposes sanctions, there should be immediate judicial review, not a year or six months later when the court finally examines the matter. There are cases where sanctions have been overturned and it turns out a person has been economically paralysed for a year in error. Allowing such consequences to occur because of executive, not judicial, action is, in my view, incompatible with a system that ensures a balanced respect for all interests. Of course, the European Union also has political interests, but proportionality must always be maintained – and that is ensured by the courts.”
Marembert and Bass point out that some restrictive measures are no longer being used to influence the situation in Ukraine but to satisfy the political ambitions and voter sentiments of individual states. Asked to comment on this statement, Kārkliņš said: “There are political goals under whose influence an institution or individual politicians can make decisions based on personal interests. However, this restricts the rights of individuals, and that should not be the case – otherwise the European Union abandons the ideals of the rule of law, according to which it is unacceptable for a narrow group of people to decide the fate of individuals and companies.”
Concerns from leading EU lawyers already last year
BNN also invited EU Court of Justice Judge Ineta Ziemele and Advocate General at the EU Court of Justice Laila Medina to comment on the concerns expressed by the French lawyers, but both declined, citing a conflict of interest. Ineta Ziemele stated: “I am directly involved in these sanctions cases, so I certainly cannot comment.”
Laila Medina explained: “To ensure the neutrality required by my official duties, I must refrain from commenting on the circumstances of specific cases throughout my mandate.”
However, on the 2nd of July, Medina gave an extensive interview to Latvian Television (LTV), in which she expressed her opinion on both the so-called “oligarch criterion” and the retention of Latvian citizen Pjotrs Avens on the sanctions list.
The case of Pjotrs Avens is particularly interesting because, as Marembert and Bass write: “Latvia blocked the decision [to lift sanctions against P. Avens] for domestic political reasons.”
Legal circles note that this possibility cannot be entirely ruled out, as officials involved may be motivated by ratings and re-election prospects, and such decisions may be based on motives other than the long-term interests of the state. If such decisions are made by a small group of people – most of whom are not lawyers and do not know how to assess human rights restrictions – they may lead to erroneous outcomes.
Fourteen European law firms already wrote to EU institutions in September last year calling for an end to the practice of imposing sanctions not for current activities contrary to EU foreign policy objectives, but: “Simply for who they are and what they cannot change, or for events or actions that took place many years, sometimes decades, ago.”
They stressed that: “EU sanctions against Russia should not lead to a lowering of fundamental rights standards within the EU, but should instead demonstrate that we Europeans are prepared to equally defend rights and the rule of law both within and beyond our borders.”
What the G criterion stipulates
In February this year, the EU Court of Justice ruled that to have sanctions lifted, it is sufficient for wealthy Russian entrepreneurs to completely sell their businesses in Russia. The Council of Europe’s legal representative has also indicated that sanctioned Russians can be removed from the list by changing their business activities so they are no longer “leading businesspeople” and by leaving Russia.
However, as Laila Medina told LTV, the wording of the G criterion has changed compared with 2023: “It is a different wording. And in this version, the main emphasis is that if a businessman is a leader in a particular economic sector, and the Council can prove that this businessman plays a significant role in that sector’s operations – and that sector, in turn, makes a substantial contribution to the Russian budget – then that is sufficient.”
It is precisely the fact that people can now be subjected to sanctions much more easily – often without clear evidence and without adequate judicial oversight – that Marembert and Bass are sounding the alarm about. According to them, it is crucial to ensure that restrictive measures do not become a tool of economic hostage-taking, because ultimately:
“This is about what kind of European Union we will have in the future.”
Read also: Latvia’s contradictory foreign policy towards its own citizen, Pjotrs Avens