Sanctions and judicial review in Ukraine: limits of judicial discretion and protection of human rights

Abstract

Sanctions in Ukrainian law serve as a special instrument of the state’s response to threats to national security, sovereignty, and economic interests. The normative basis of the sanctions mechanism is formed by the Law of Ukraine «On Sanctions» of 14 August 2014 No. 1644-VII (hereinafter – the Law) [1], which defines sanctions as special economic and other restrictive measures applied for the purpose of protecting national interests, national security, and the territorial integrity of Ukraine (Art. 1). The mechanism of their application has a complex character and includes a preparatory stage (formation of proposals on the application of sanctions by the entities defined in Part 1 of Art. 5 of the Law, in particular the Cabinet of Ministers of Ukraine, the Security Service of Ukraine, and the National Bank of Ukraine), the adoption of a decision by the National Security and Defense Council of Ukraine (hereinafter – the NSDC), and its enactment by a decree of the President of Ukraine, as well as further judicial review of the relevant acts [1].

The relevance of the study is due to the fact that sanctions, being an instrument for ensuring public interests, simultaneously have a significant impact on human rights and freedoms, in particular the right to property and the right to effective judicial protection.

The aim of the work is to conduct a comprehensive analysis of the mechanism of judicial appeal against sanctions in Ukraine from the perspective of determining the limits of judicial review, identifying its restrictions, and assessing the effectiveness of the protection of individual rights.

The methodological basis of the study consists of the formal legal method used for the analysis of legislative provisions, a systematic approach to the consideration of the sanctions mechanism as an integral legal construction, as well as the comparative legal method for comparing national practice with European standards of human rights protection.

Results of the study show that judicial review of the application of sanctions in Ukraine has a limited nature and is mainly reduced to verifying the formal legality of acts of the President of Ukraine without proper assessment of their substantiation and evidentiary basis. It has been found that the absence of a full-fledged examination of the factual grounds for the application of sanctions, as well as the use of lowered standards of proof in cases concerning the recovery of assets to state revenue, create risks of violation of the right to a fair trial and the right to property.