If the introduction of sanctions in Ukraine precedes the investigation of criminal proceedings, then the problem directly points to the weakness and dependence of law enforcement agencies
The events of the last year demonstrate the urgent need to review the state’s sanctions policy. Scandalous decisions of the National Security Council regarding the imposition of sanctions against individual citizens, TV channels “112”, “NewsOne” and “Zik”, against 10 Ukrainians and 79 companies connected with smuggling, against the so-called “thieves in law”, “criminal authorities”, six people and ten companies, including the Russian retailer Wildberries, confirm that the sanctions mechanism has turned into a tool to crack down on the wrongdoers. The country perceives each meeting of the National Security Council as another series in which sanctions can be imposed against anyone based on their own interests.
All this undermines the fundamental principles of law and sows doubts about the legality of the application of restrictive measures. In most cases, sanctions in the country serve as a situational political tool and unnecessarily limit the rights and freedoms of certain individuals. Therefore, the sanctions policy needs to be rebooted: the mechanism for applying sanctions should be made more legal, one that would correspond to the interests of national security and the rights of citizens.
What is wrong with the law
The Law “On Sanctions” was adopted by the Verkhovna Rada in 2014. Its purpose is to protect the national interests, security, sovereignty, and territorial integrity of Ukraine, counter terrorist activity, prevent violations, and restore violated rights, freedoms, and legitimate interests of Ukrainian citizens, society, and the state. According to Art. 1 of the Law, sanctions may be applied by Ukraine in relation to:
– of a foreign state;
– a foreign legal entity;
– a legal entity that is under the control of a foreign legal entity or a non-resident natural person;
– foreigners, stateless persons;
– entities that carry out terrorist activities.
The law provides for 25 types of possible sanctions. Decisions on their application are made by the NSDC on the basis of proposals from the Verkhovna Rada, the President, the Cabinet of Ministers, the NBU and the SBU. Decisions of the National Security Council are put into effect by the decree of the President of Ukraine and are binding.
But due to the hastily adopted law, in practice we face a lot of problems with the application of the provisions in practice.
Most questions arise regarding the legality of applying sanctions to Ukrainian citizens and legal entities. According to the law, restrictive measures may be applied if they are classified as subjects engaged in terrorist activities. But the Law “On Combating Terrorism” defines “terrorist activity” quite broadly. In addition, the criminal code establishes responsibility for terrorism. But you can be prosecuted only according to the court verdict. Therefore, sanctions against the “TOP smugglers”, which were imposed without summons for questioning, without the opportunity to provide explanations, without court decisions, only point to a bunch of unresolved problems accumulated over the years: a corrupt system of law enforcement and control bodies, law enforcement, inactivity of the judicial system.
Therefore, the sanctions policy should provide for:
– system for monitoring the implementation of NSDC decisions;
– administrative and criminal liability for failure to comply with decisions on the application of sanctions;
– sanction control body;
– Special experts on sanctions policy.
Due to the lack of responsibility, we have many opportunities for “adjustments” in the law, which the current government uses for political purposes. But as long as politicians will use the Law and state bodies in their own interests, until then its norms will not work fully.
If the introduction of sanctions in Ukraine precedes the investigation of criminal proceedings, then the problem directly points to the weakness and dependence of law enforcement agencies, which do not comply with the implementation of measures to establish and document facts, identify persons, the process of serving suspicions and referring cases to court. Every wrongdoing must be followed by responsibility. Until they start following this rule in Ukraine, we will be constantly reproached with the well-known folk proverb: “the law is like a bridle. Wherever you turn – that’s where it turned out.” In the metaphorical context, the “dishlom” is understood as a “pigeon” that can be turned in different directions. What happens with the provisions of the law in practice.
What should be changed?
As of today, a number of draft laws have been registered in the Verkhovna Rada that may change the sanctions legislation
These are the bills:
– 4002 “On amendments to some legislative acts of Ukraine regarding the establishment of responsibility for violation of the requirements of the sanctions regime acting to protect the national security and territorial integrity of Ukraine”;
– 4454 “On national and international sanctions”;
– 5030 “On amendments to the Law of Ukraine “On Prevention of Corruption” and other laws of Ukraine on strengthening the requirements of anti-corruption legislation, financial control and restrictions on persons subject to sanctions”;
– 5191 “On the principles of sanctions policy of Ukraine” and alternatives to it.
Currently, the draft laws are in the committees of the VRU and have not been considered for more than a year. I believe that it is necessary to consider those initiatives that envisage the legislative mechanisms for the introduction of sanctions, and not the specific direction of sanctions against certain persons.
Arbitrary application of NSDC sanctions threatens the principles of democratic Ukrainian society. The systematic illegal application of sanctions contradicts the principles of the rule of law, which is based on legal certainty and the priority of human rights.