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Yanukovych v. Ukraine: Who Won and Who Lost in the EU Court


Dmytro Shemelin, lawyer at Ilyashev & Partners Law Firm
Source: European Pravda

On September 15, 2016, the European Court (located in Luxembourg. – EP) announced the judgment in the case T-346/14 under the claim of Viktor Yanukovych to the Council of the European Union on removal of the former President from the EU sanctions lists.

Formally, the judgment of the Court was partially approved in favor of the plaintiff.

In fact, Yanukovych lost on all substantive issues.

To make sense of the Court’s judgment it should be clarified what and how Yanukovych appealed. Unfortunately the EU sanctions judgments on the former Ukrainian politicians comprise a complex system of regulations which is difficult to understand for unprepared person.

However, everything is simplified if to focus on three main decisions:

– Council Decision No.2014/119/CFSP, which introduced sanctions in 2014 up to March 2015;

– Council Decision №2015/364/CFSP, which changed the sanctions lists and extended sanctions up to March 2016;

– Council Decision №2016/318/CFSP, which extended sanctions up to March 2017.

As part of the case in which the Court in Luxembourg has just delivered a verdict, Yanukovych appealed against the first two sanctions decisions: on introduction of restrictions in 2014 and on their extension until March 2016.

It means that the effective sanctions were not considered as part of the said case. They are the subject matter of another lawsuit filed by Yanukovych, but the judgment in is already possible to predict, and let us consider it below.

The plaintiff won as regards the first question: the Court held that at the time of approval of the first sanctions according to Decision No. 2014/119/CFSP the Council of the European Union had not enough evidence to make a reasoned judgment on putting of Yanukovych on the sanctions lists.

It is actually a quite expected conclusion.

Earlier, the Court of Justice had already ruled on the “first wave” sanctions and cancelled the sanctions judgment in all respects. In particular, such judgments were made in the cases of Sergiy Klyuyev (T-341/14) and Mykola Azarov (T-331/14).

Another thing is that the verdict applies only to 2014-2015 and has little practical value today.

Though the main battle was to burst as regards extension of sanctions until March 2016.

The first sanctions decision of 2014 approved by the EU Council was really made hastily and was actually based on a single letter of the General Prosecutor’s Office, without more detailed evidence, thus, its cancellation was not decisive for the sanctions case as a whole.

Instead, the second decision of 2015 approved by the EU Council was based on a number of evidence that the General Prosecutor’s Office sent to the EU Council additionally during 2014-2015. Apparently, had such evidence been recognized as insufficient, the Council’s position on introduction of sanctions would have faltered significantly.

Thus, the former president spared no expense and engaged three British top-qualified solicitors (QC) and three more “ordinary” attorneys. Together they presented seven alternative arguments for annulment of the Council’s decision of 2015.

On the other hand, the defense attorneys of the EU Council worked, who were supported by the representative of Poland and two representatives of the European Commission.

Finally, the Queen’s Counsels – and so did the former president – lost.

The Court held that the additional information provided by the General Prosecutor’s Office, in particular, reference to the three criminal cases on embezzlement of state property by Yanukovych, which are investigated in Ukraine, along with other evidence known, including the place of the plaintiff in the former government of the state, is sufficient for approval by the EU Council of the decision on putting him on the revised sanctions list 2015.

What does it mean?

The Court confirmed that the criminal cases against Yanukovych (along with secondary factors) pending in Ukraine are sufficient to preserve the EU sanctions against him.

It also means that the new complaint of Yanukovych No. T-244/16, in which he challenges the effective sanctions imposed by the EU Council for the period to March 2017, has low chances of success.

However, it is possible that the investigation of criminal cases in Ukraine will question the good faith of the General Prosecutor’s Office and, consequently, result in lifting of sanctions.

The Court of Justice so far rejected the arguments of the plaintiff that the criminal cases were initiated only to support the decision on introduction of sanctions against him.

However, if the investigations in Ukraine do not make progress, the position may be reconsidered by the Court not in favor of Ukraine.

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