The use of sanctions against the citizens of Ukraine who live on the territory uncontrolled by the government of Ukraine undermines the fundamental principles of law, grossly violate the Constitution and international treaties ratified by Ukraine, entail serious threats to the human rights and liberties, as well as have the indicators of usurpation of power in the state.
In two months five decisions of the National Security and Defense Council were adopted, concerning the use of sanctions, the last of them was adopted on 2 April. It is known about criminal proceedings against the participants of decisions on sanctions, some of them reached the trial stage – for example, a former President, Victor Yanukovych and his surroundings, the former police officers who betrayed the oath and are serving in Russia or on non-government-controlled territory of Crimea and Donbas. In each decision, in addition to Russians and betrayers, there are citizens of Ukraine and/or Ukrainian legal entities living/working on government-controlled territory. Against them there are no court sentences that have entered into force, no other decisions, it is not reported. There are only incriminating articles in media.
Sanctions are an international legal mechanism of the political nature, which is used by one state against another state, their individuals and legal entities, since there is no other way to combat their hostile influence. The use of sanctions against the state’s own citizens is only possible if they live abroad or are hiding on the temporarily controlled territories of Ukraine, and the state has exhausted the mechanisms for bringing them to justice. The actions of President Zelenskiy are not sanctions in their international legal meaning, but the policy management of the state.
Neither the decisions of NSDC of 2 April 2021, nor the Decree by the President of Ukraine No.140/2021 that put this decision into effect, contrary to Article 3 of the Law “On sanctions” contain any grounds for the application of restrictive measures.
In our opinion, such actions of the President of Ukraine are unlawful and arbitrary, since they created the situation in which the rights of the citizens of Ukraine were significantly restricted without any explanation or reasoning.
Note that the strict and repressive measures, directed at restricting human rights, may amount to “criminal accusation” according to the content of the European Convention on Human Rights and Fundamental Freedoms. The terms “criminal accusation” and “criminal offence” are autonomous within the meaning of Articles 6 (the right to fair trial) and 7 (no punishment without a law) of the Convention. Thus, in the situation of application of such measures the state must ensure the observance of several guarantees, in particular, no punishment without a law, the right to a fair trial by a tribunal established by the law, observance of the principle of presumption of innocence, the right to be immediately informed in detail about the nature and causes of accusation, the right to effective remedy etc. However, in the situation of the applied sanctions, none of those guarantees were observed.
The similar situation of non-observance of the norms of national and international law by the leadership of the state may lead to negative consequences in the form of financial and reputation losses due to the decisions of the international courts: the state will have to pay the compensation to the persons against whom the sanctions were applied, at the expense of the tax-payers, and when the issue of the application of sanctions by foreign countries is raised at the international level, the brand of abuse of sanctions will constantly hang over Ukraine..
We emphasize that the sanctions cannot serve as the instrument of legal prosecution for the commission of criminal offences, even if the investigation is ongoing against the person. The sanctions cannot substitute the criminal responsibility, since in such case the principles of justice would be ruined by political expediency that is used by the bodies of the executive. The use of sanctions instead of fair trial would mean the ruination of the democratic foundations of our society.
The Decree of the President of Ukraine No. 140/2021 based on the decision of NSDC of 2 April 2021 is not just an abuse of power, but has signs of usurpation of power, since the President, in breach of the Constitution of Ukraine, appropriated the powers of the judiciary.
Director of Kharkiv Human Rights Protection Group
Executive Director of the Regional Center for Human Rights
Chairman of the Board of the Center for Civil Liberties
Executive Director of the Ukrainian Helsinki Human Rights Union
Director of the Ukrainian Institute of Human Rights