In Europe, freezing assets can violate human rights

The European Court of Justice  ruled on July 11 in Klyuyev v Council that the Council of the European Union acted improperly in extending the freeze on the assets of the former President of Ukraine, Viktor Yanukovych, his son and several members of Yanukovych’s administration.

In 2014, Yanukovych and the others were indicted in Ukraine for misspending and embezzling government funds. In response, the Council of the European Union froze the assets of those indicted as a sanctions measure to support human rights and rule of law in the Ukraine.

From then on, the Council of the European Union extended the freeze on assets annually under the rationale that the owners of the assets were facing charges related to those funds, so freezing the assets was necessary to assist in those trials in Ukraine.

Andriy Klyuyev, a former top official in Yanukovych’s administration, brought a claim to the European Court of Justice that challenged the Council of the European Union’s yearly extensions on freezing the assets. Yanukovych, his son and other members of the administration were plaintiffs in the legal challenge as well.

The plaintiffs alleged that the Council of the European Union acted inappropriately in extending the freeze on the assets of the plaintiffs each year because the Council failed to check if the Ukrainian legal authorities respect the rights of the plaintiffs under EU Law. The plaintiffs specifically cited rights listed in the Treaty on European Union’s Articles Two, Three and Six, along with the Charter of Fundamental Rights of the European Union’s Articles 47 and 48, all of which collectively guaranteed a right to an effective defense, fair trial, and protection of the defendant’s property among other aspects.

The plaintiffs’ claim rested on the fact that the Council of the European Union relied on letters from a third party (Ukrainian legal authorities) to make their decision for freezing the assets, and in doing so the Council did not verify that the Ukrainian legal authorities respected the plaintiffs’ legal rights guaranteed by European Union law.

The Council of the European Union refuted the plaintiffs’ claim by arguing that European Union law did not require the Council to investigate the protection of rights as deeply as the plaintiffs claimed and that court files from the Ukrainian trials showed that the indictment was subject to proper legal oversight to protect the plaintiffs’ rights.

The European Court of Justice found for the plaintiffs on the basis that the Council of the European Union did not perform its due diligence in reviewing whether the Ukrainian legal authorities protected the plaintiffs’ rights that were guaranteed by European Union law. The European Court of Justice specifically found that the Council of the European Union could not show that the Ukrainian legal authorities had protected the rights in question.

The ruling in Klyuyev v Council serves as an important reminder that no matter how guilty someone might appear, there are still rights that need to be protected through proper compliance.

[Editor’s note: An earlier version of this post incorrectly referred to the Council of Europe instead of the Council of the European Union.]

____

Todd Carney, pictured above, is a second-year student at Harvard Law School. He holds a bachelor’s degree in Political Science and Public Communications from American University, where he graduated Summa Cum Laude. Todd is a contributor to Lawfare. At Harvard, he’s involved in the Harvard International Law Journal and the Harvard International Arbitration Law Student Association. He has also worked in digital media in New York City and Washington D.C.