EU Sanctions against Russia and the Rule of Law

Abstract

The EU can freeze Russian State and private assets as sanctions. This is justified as “countermeasure” to exert pressure upon Russia that it ends its criminal war of aggression. However, sanctions do not cover definitive measures; freezing cannot be considered as a first step to confiscation. Therefore, the Commission plans “active management” of the frozen assets in order to obtain net return while ensuring the return of the assets themselves. Moreover, assets can be confiscated by the Member States on the basis of criminal confiscation regimes which the Union can harmonize. Such confiscations generally require evidence of a specific criminal offence, typically through a conviction. In some cases, confiscation may also be possible without a criminal conviction provided that a court is satisfied that all the elements of a specific criminal offense, or at least a nexus with criminal activity, are present. To make possible more confiscations, the EU has created the new crime of violation or circumvention of sanctions. The idea is that the “proceeds” of such Euro-crimes would have to be transferred to the EU or to Ukraine. In any way, some nexus to a severe crime needs to be established for confiscations compatible with the rule of law.