Yanukovych v. Ukraine: who won and who lost in Court of Justice of EU

Author : Dmytro Shemelin

Source : 112 Ukraine

European Court has partially accepted the claim of a former Ukraine's president
17:10, 20 September 2016

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September 15, 2016 European Court announced the decision in the case T-346/14 the claim of Ukraine’s former president Viktor Yanukovych to the European Council on exclusion him from the EU sanctions lists.

Formally, the decision of the Court partially accepted the plaintiff.

In reality, Yanukovych has lost on all his material issues.

In order to understand the essence of the Court's judgment we should understand how Yanukovych complained. Unfortunately EU decisions on former Ukrainian politicians are a complex system of regulations, which is difficult to understand.

Related: EU court keeps sanctions against Yanukovych and his close aides

In fact, you should take into consideration three main decisions:

- Council Decision №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 to March 2016;

- Council Decision №2016 / 318 / CFSP, which extended penalties to March 2017.

Related: Ukraine is ready to hold talks with Russia on Yanukovych’s debt

Yanukovych complained the first two decisions. That is current sanctions were not considered. This is the subject of another lawsuit of Yanukovych.

The plaintiff won on the first question, the Court held that at the time of approval of the first wave of sanctions decision №2014 / 119 / CFSP, the European Council did not have enough evidence to make an informed decision on the inclusion of Yanukovych to sanctions lists.

It's actually quite expected conclusion.

Related: US investigating Manafort involvement in corrupt activities of Yanukovych

Earlier, the Court of Justice has ruled the decision on "first wave" sanctions, and cancelled the decision. In particular, the following decisions were taken for Sergei Klyuyev (T-341/14) and Mykola Azarov (T-331/14).

Another thing is that this verdict applies only to situations of 2014-2015 years and has little practical value today.

The first decision of the EU Council from 2014 was prepared really quickly and was based on a single letter from the General Prosecutor's Office, without more detailed evidence. That is why its abolition was not decisive for sanction case as a whole.

Related: National Anti-Corruption Bureau: Manafort could get USD 13 mln from Yanukovych

Instead, the second decision of 2015 was based on a number of evidence that Prosecutor General's Office sent to the EU Council during the 2014-2015 years. Arguably, even if the evidence was insufficient, the Council's position on sanctions would be greatly shaken.

So the former president spared no expense, simultaneously involving three British lawyers (QC) and three more "regular" lawyers. Together they presented seven alternative arguments for annulment of the Council’s decision from 2015.

After all, QC - and with them Ukraine’s former president – lost the case.

Related: Russia hopeful that sanctions will end: Expert

The Court held that the additional information from the Prosecutor General (reference to the three criminal cases about state property theft, which were investigated in Ukraine, along with other known factors, including the position of the plaintiff in the former leadership of the state) is sufficient for approval of a decision on inclusion him in the revised sanctioned list 2015.

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

Related: US Treasury added 17 Russian citizens and 20 organizations to the sanctions list

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

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

Related: Prosecutor General's Office to question Yanukovych in Russia

The Court of Justice so far rejected the arguments of the plaintiff that criminal cases have been opened exclusively to support the decision to introduce sanctions against him.

However, if the investigation in Ukraine will not move, this position could be reconsidered by the Court, and not in favor of Ukraine.

Related: Cabinet to revise sanctions list of Russian journalists

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