Legal grounds for the imposition of sanctions by Ukraine against its citizens

Since 2014, when the Law “On Sanctions” has been in force in Ukraine, the issue of its application to Ukrainian citizens has remained controversial. Does the Constitution allow for the restriction of rights without a court order? Does the application of sanctions replace criminal liability?

These complex questions are answered by Serhii Zayanchukovskyi, attorney at law, counsel at LESHCHENKO & PARTNERS, in a new analytical article for LIGA ZAKON.

There are no legal grounds for Ukraine to impose sanctions on its citizens. This could be the end of the article if the law were clear, if lawyers had an unambiguous position on this issue, which would be supported by MPs and which would be reflected in final court decisions in cases where Ukrainian citizens appealed against sanctions imposed on them by their own state.

However, from the very beginning, when the President of Ukraine signed the Law of Ukraine “On Sanctions” in 2014, it contained such vague wording that this issue still remains open.

Article 1 of the Law of Ukraine “On Sanctions” is entitled “Ukraine’s Sovereign Right to Defence” and in the first part introduces the purpose of defence, in particular, the protection of Ukrainian citizens. The second part of Article 1 of the Law, adopted in 2014, provides that “Sanctions may be imposed by Ukraine against a foreign state, a foreign legal entity, a legal entity controlled by a foreign legal entity or a non-resident individual, foreigners, stateless persons, as well as entities engaged in terrorist activities”.

The principle of legal certainty in the decisions of the Constitutional Court of Ukraine</b

The Constitutional Court of Ukraine, both before and after the adoption of this Law, has repeatedly drawn attention to the need to comply with the rule of law and legal certainty as its constituent element:

“The constitutional principles of equality and justice require certainty, clarity and unambiguity of a legal provision, since otherwise it cannot ensure its uniform application, does not exclude unlimited interpretation in law enforcement practice and inevitably leads to arbitrariness” (second paragraph of subpara. 4, paragraph 5 of the reasoning part of Decision of the Constitutional Court of Ukraine in the case on the constitutional petition of 51 people’s deputies of Ukraine on the compliance of the provisions of Article 92, paragraph 6 of Section X “Transitional Provisions” of the Land Code of Ukraine (case on permanent use of land plots) of 22.09.2005 No. 5-rp/2005).

“The Constitutional Court of Ukraine considers that the principle of legal certainty requires clarity, comprehensibility and unambiguity of legal norms, in particular their predictability and stability” (paragraph six of item 2.1 of the reasoning part of the Decision of the Grand Chamber of the Constitutional Court of Ukraine in the case on the constitutional petition of 49 MPs of Ukraine on the compliance of paragraph 7 of part two of Article 42 of the Law of Ukraine “On Higher Education” with the Constitution of Ukraine (constitutionality)

“The Constitutional Court of Ukraine believes that the principle of legal certainty requires the legislator to be clear, understandable, unambiguous in legal provisions, their predictability (predictability) to ensure a stable legal status of a person”, (paragraph nine of subpara. 3 of paragraph 4 of the reasoning part of the Decision of the Grand Chamber of the Constitutional Court of Ukraine in the case of taxation of pensions and monthly lifetime allowance No. 1-r/2018 dated 27.02.2018).

Is the issue of imposing sanctions on Ukrainian citizens certain, clear and unambiguous? Probably not, if we are still forced to discuss it while the state imposes sanctions on its own citizens under this provision.

Circumstances of adoption of the Law</h3

Nevertheless, let’s try to look at the logic of the legislative process that took place around this rule of law.

The original version of Part 1 of Article 2 of the draft Law of Ukraine ‘On Sanctions’ did indeed provide for their application to its own citizens:

“Sanctions may be imposed by Ukraine against a foreign state, a foreign legal entity or individual, citizens of Ukraine, legal entities established under the laws of Ukraine, as well as other entities”. Given the title of the article, ‘Ukraine’s Sovereign Right to Defence,’ it is interesting that Ukraine immediately planned to defend itself against its own citizens. And in the first reading, the draft law was adopted on 12.08.2014 in this version.

From the point of view of the rule-making technique, the end of the sentence with the words “as well as other subjects” devalued attempts to define the range of subjects, as it was possible to simply write ‘Sanctions may be applied to anyone.’

By the second reading, Ukrainian citizens remained on the list of potential victims, and the clarification “who carry out terrorist activities” was added to other subjects.

On 14.08.2024, the draft law was adopted as a whole, as a result of which the direct reference to Ukrainian citizens as persons subject to sanctions was removed. This happened as follows. In response to a direct question from MP O.O. Zarubinsky “Do citizens of Ukraine remain or does this apply to non-residents? gave the following answer:“Sanctions apply only to the aggressor state, only to foreign business entities, only to foreign companies, foreign agents and all other nastiness that does not allow Ukraine to live.” The answer seemed so powerful that it remained recorded not only in the transcript of the meeting, but was also quoted on the official government web portal.

“Thus, we received the provision: ‘Sanctions may be applied by Ukraine against a foreign state, a foreign legal entity, a legal entity under the control of a foreign legal entity or a non-resident individual, foreigners, stateless persons, as well as entities engaged in terrorist activities”.

Let’s analyse the chronology once again. The initiator of the draft law submits it for the first reading with the aim of imposing sanctions, including on Ukrainian citizens, pulls this provision for the second reading, and then, when asked directly about the state’s imposition of sanctions on its own citizens, does not answer: ‘No’. So, it was only a matter of time before Ukrainian citizens would be subjected to “all the other nasty things that make it impossible for Ukraine to live“.

Attempts at specification

In 2021, MPs submitted bills No. 5191-2and 5285, which were supposed to put things in order in this matter by clearly defining that sanctions could be applied to Ukrainian citizens. The explanatory notes stated: “Given the use of Ukrainian legal entities and individuals by the aggressor state to harm the national security of Ukraine, it is advisable to unify the grounds for imposing sanctions on Ukrainian and foreign legal entities and individuals.”

In 2024, the President of Ukraine initiated the expansion of the list of persons to whom sanctions may be imposed by supplementing part 2 of Art. 1 of the Law of Ukraine “On Sanctions” with the words “other entities in the presence of the grounds specified by this Law” – in fact, returning in this matter to the original version of the draft law submitted in 2014 by the Prime Minister of Ukraine.

The Main Scientific and Expert Department of the Verkhovna Rada of Ukraine, analysing this idea, noted that it considers the current version of the Law of Ukraine ‘On Sanctions’ (before the adoption of the presidential draft law) to be such that it does not allow for the imposition of sanctions on Ukrainian citizens. As was rightly noted, the scope of the Law applies, among other things, to those persons “who, at the time of the emergence of such threats, are outside the jurisdiction of our state”.

And this is logical, since the very essence of the application of sanctions is that there may be entities to which the state of Ukraine cannot apply the measures of influence provided for by law by law enforcement agencies, in particular within the framework of criminal proceedings, and then the state applies sanctions. For example, we can model the situation of ISIS activities to the detriment of Ukraine’s interests. If these are not Ukrainian citizens, but the very entities that carry out terrorist activities, Ukraine exercises its ‘Sovereign Right of Ukraine to Defence’, as defined in Article 1 of the Law of Ukraine ‘On Sanctions’.

The imposition of sanctions against Ukrainian citizens makes no sense, as even if they are classified as “entities engaged in terrorist activities” under Article 258 of the Criminal Code of Ukraine (Terrorist Act), there is a presumption of innocence enshrined in the Constitution of Ukraine, which the Constitutional Court of Ukraine has also repeatedly expressed.

After the adoption of the presidential draft law, legal certainty became even less, as now the provision can be interpreted in such a way that allegedly sanctions against Ukrainian citizens can only be applied in cases of deprivation of state awards.

Lawyers do not have a unanimous position on this issue: there are publications on the possibility of imposing sanctions on their own citizens, warnings about the need to comply with the Constitution of Ukraine, and categorical statements about the inadmissibility of the state imposing sanctions on its own citizens (to which this article also refers). This issue could be resolved by the judiciary, but as of today, there is not a single decision that would indicate the illegality of imposing sanctions on Ukrainian citizens.

It seems that this issue will have to be settled by the court, which will decide on the legality of imposing sanctions on a Ukrainian citizen, the same court that once signed the Law of Ukraine “On Sanctions”: The Supreme Court has begun consideration of the case on the appeal against Presidential Decree No. 81/2025 on the imposition of sanctions against Petro Poroshenko.