Anton Moiseienko, PhD candidate at the Criminal Justice Centre, Queen Mary University of London, contributes the following guest post:
So-called targeted sanctions—imposing travel restrictions on, or freezing the assets of, a select group of people—remain in vogue as an instrument of foreign policy and as a supplement to criminal justice in many areas, such as counterterrorism, and yet targeted sanctions have not been widely used in counteracting corruption. The United States, however, is a notable exception, with its Presidential Proclamation 7750, which authorizes the US Secretary of State to issue entry bans against corrupt foreign officials (subject to a caveat that such determinations must be informed by US national interests), and the Magnitsky Act of 2012, enacted by the US Congress in response to the death of Sergei Magnitsky, a Russian lawyer-turned-whistleblower, in a Moscow prison after he reported the embezzlement of US$230 million by high-ranked law enforcement officers. Strictly speaking, the Magnitsky Act is a human rights law rather than an anticorruption law. It authorizes the US President to blacklist (1) the individuals responsible for the prosecution and death of Mr. Magnitsky, and (2) those responsible for “gross violations of internationally recognized human rights” if committed against the persons trying to expose the illegal activity of Russian officials or against human rights activists. Yet pervasive corruption is at the heart of Magnitsky’s case, as it appears that a ring of corrupt officials was complicit in his death.
The European reaction to the Magnitsky Act was ambivalent. The OSCE Parliamentary Assembly adopted a non-binding resolution in 2012 calling upon member states to deny entry to, and freeze the assets of, the individuals on the US Magnitsky List––but to little effect. In contrast, a report by the Parliamentary Assembly of the Council of Europe (CoE) deemed US-style sanctions to be “a means of last resort” and advised against them. But despite the lack of governmental action, the public debate in Europe is not over (see, for example, here and here). With EU sanctions against Russia expanding continuously, it may be time to revisit the European debate on whether the EU should draw up its own Magnitsky List, or perhaps adopt a more general policy on targeted anticorruption sanctions.
If the EU or its individual member states proceed with Magnitsky List-style sanctions, they will have to reckon with their human rights laws—including the EU Charger of Fundamental Rights and the European Convention on Human Rights. The most important potential legal difficulties are as follows:
- Due process rights. EU law requires that before sanctions may be imposed, the reasons for the sanctions must be communicated to the (natural or legal) person affected, and that person must have an opportunity to be heard (see here). This requirement was the basis for the Court of Justice for the European Union (CJEU) decision to strike down the EU measures that implemented a UN terrorist blacklist in Kadi v. Commission and Council. Andreas Gross, the drafter of the report by the CoE’s Parliamentary Assembly on the Magnitsky List, concluded that that the EU “would have to do better than that” if it were to enact its Magnitsky Act. And although the EU has successfully sanctioned human rights abuses in the past (for example, sanctions against Belarus were imposed in 2006, and although measures against some individuals and companies were struck down, most of the sanctions remain in force), enforcing proper anticorruption sanctions might be more challenging due to the difficulties in gathering credible and specific information that would shed light on foreign corruption (which is probably less visible than human rights abuses).
- Presumption of innocence. Article 6(2) of the ECHR states that the presumption of innocence shall be enjoyed by those “charged with a criminal offense”. This may also entail the burden upon the prosecution to prove guilt beyond reasonable doubt. Does an allegation of corruption (or complicity in human rights violations), resulting in the imposition of targeted sanctions, amount to a criminal charge? The European Court of Human Rights (ECtHR) relies on three criteria to identify criminal charge, none of which alone is decisive: (1) domestic classification of the proceedings, (2) nature of the imputed offence, and (3) severity of the penalty. There is a decent argument that targeted sanctions may constitute a criminal charge, even though so far the ECtHR has been rather timid in interpreting its three criteria (for instance, it refused to apply Article 6(2) to non-conviction based forfeiture). For its part, the CJEU has consistently treated sanctions as preventive but not punitive (and thus not criminal) measures, whether in the context of anti-terrorist or other sanctions, though in Kadi the CJEU suggested that the excessive duration of sanctions might cause them to lose their preventive qualities and transform into punitive measures. Without going into further detail, the issue appears more complex than suggested by the existing jurisprudence of European courts, and would be of relevance to any anticorruption sanctions that the EU might adopt in the future.
- Sanctions against family members. Although the Magnitsky Act does not apply to covered officials’ family members, Proclamation 7750 covers “spouses, children, and dependent household members of [the designated persons.]” In the EU, extending sanctions of this sort to the family members of allegedly corrupt officials would amplify the difficulties described earlier, in light of the CJEU case law on this issue.
Thus the European reception of the Magnitsky Act––let alone the establishment by the EU of a comprehensive targeted anticorruption sanctions regime––would be accompanied by legal difficulties that do not seem to play any considerable role in the US. That said, far from precluding a European response to corruption and human rights abuse, the EU legal safeguards may ensure predictability and accountability. Geoffrey Robertson has persuasively criticized the US Magnitsky List, contending:
A process designed to deter unfair behaviour by officials must itself be fair. This fundamental principle has not been recognised by the US, whose Magnitsky targets are listed after a secret designation by the State Department and have no way of challenging a decision which may severely impact their own money and their movements.
So, the EU’s more stringent limitations on the use of targeted sanctions, though perhaps a source of difficulty in the short term, may in the long term prove to be a strength.
This is a thought-provoking post about the inherent tension between the desire to embrace effective anti-corruption tools targeted at kleptocrats and basic notions of due process. But I would hesitate to lump targeted financial and travel sanctions together, as they do not seem, at least to me, to implicate the same fairness concerns. Perhaps it is just my gut reaction, but I would propose that it is far less worrisome for a country like the United States to block entry of foreign kleptocrats without affording any notice or opportunity to be heard than it is to seize assets without any recourse. The right to control one’s border’s, after all, seems to inhere in the core of national sovereignty, and no foreign kleptocrat has a right to enter any other country comparable to the constitutional right of a citizen of New York to travel freely to and from New Jersey. Travel bans thus seem to deprive the kleptocrats of something to which they were never entitled. I may be wrong, but it doesn’t seem to me that governments have a comparable right to arbitrarily seize financial assets within their borders. I’m not sure, that is, that we must consider any decision to shift assets into a foreign country as automatic acquiescence to their arbitrary seizure. In my mind, then, only targeted financial restraints raise the kind of due process concerns you discuss.
Dear Jordan, thank you very much for your comment. I do agree that the imposition of entry restrictions is prima facie less susceptible to legal challenges than freezing of assets. As you correctly point out, states enjoy virtually unlimited discretion in immigration matters and, in principle, no one has a right to enter any country. That having been said, I would not discard the possibility that the denial of entry could amount to a breach of human rights under the EU law / ECHR. For instance, if a foreigner suspected of corruption owns, say, real estate property in State A, I find it conceivable that an entry refusal might be deemed an unlawful interference with his or her right to property. In more unusual circumstances, yet other considerations might come into play (e.g., the respect to family and private life if it so happens that a family is effectively separated — and there is the ECtHR case of Nada v. Switzerland to that effect). Also, there is a reputational component to targeted sanctions that might potentially give rise to legal claims. In the end of the day, as long as an arguable claim exists that the applicant’s human rights have been breached, the state involved must provide opportunities for redress in its domestic legal system. Therefore, I would expect both entry denial and asset freezing to entail certain due process concerns — and I tried to point out briefly some issues that might be of relevance in both scenarios. However, I certainly agree that a deeper analysis would require separating immigration sanctions and financial sanctions.