Sanctions in Ukraine: Swift Reprisal or Justice?

Column by Oleksandr Leshchenko, Managing Partner of LESHCHENKO & PARTNERS. Published in the special issue “Client’s Choice. TOP-100 Lawyers of Ukraine 2025”

The decision to impose sanctions in Ukraine is a powerful tool for the state to respond quickly to threats to national security. The mechanism by which the National Security and Defense Council of Ukraine (NSDC), based on proposals from authorized bodies, makes decisions that are enacted by presidential decree, allows for the rapid blocking of the activities of persons posing a threat. However, this efficiency conceals a number of problems that indicate the imperfection of the current legislation.

Issue 1: Legality of sanctions against Ukrainian citizens and presumption of innocence

One of the most pressing issues is the possibility of imposing sanctions on Ukrainian citizens and legal entities. The Law on Sanctions provides for such a possibility only if they are classified as entities engaged in terrorist activities. At the same time, the definition of terrorist activity in the Law of Ukraine “On Combating Terrorism” is quite broad, and the Criminal Code of Ukraine establishes criminal liability for terrorism, which, according to national legislation, occurs only on the basis of a court verdict that has entered into force.

The imposition of sanctions on Ukrainian citizens without establishing their guilt in court may be regarded as a violation of the constitutional principle of the presumption of innocence (Article 62 of the Constitution of Ukraine). According to this provision, a person is presumed innocent until proven guilty in a court of law and established by a guilty verdict.

Problem 2. Lack of a clear decision-making procedure for the NSDC

The NSDC plays a key role in the process of imposing sanctions. Following the adoption of the Law of Ukraine “On Sanctions” in 2014, the Law of Ukraine “On the National Security and Defense Council of Ukraine” was amended to provide that the NSDC’s work procedure is determined by this Law and its Rules of Procedure. However, the NSDC Regulations were never adopted.

Instead, in 2023, the Law “On the National Security and Defense Council of Ukraine” was further amended to remove the provision on the Rules of Procedure altogether, and the NSDC’s functioning is now determined exclusively by this Law.

The absence of a special legal act that would regulate in detail the organization of work of the NSDC members, documentation of activities and meetings, the procedure for working with materials, their discussion, decision-making, protocol and transcription violates the principles of due process.

The principles of due process are universal and apply not only to court proceedings but also to administrative procedures that must be followed by public authorities when making decisions concerning human rights, freedoms and legitimate interests. Violation of due process renders the relevant act null and void regardless of its content.

The criteria of due process of law, formed by the case law of the European Court of Human Rights, provide for the protection of human rights:

• to be heard;
• to assistance and representation;
• to familiarize themselves with the case file;
• to justify the adoption of unfavorable acts by the authority;
• to determine the procedure for appeal;
• to compensation for damages.

These criteria are the general principles that states parties to the Convention for the Protection of Human Rights and Fundamental Freedoms are obliged to adhere to when interfering with human and civil rights.

Issue 3. Application of sanctions as a “criminal charge” according to the ECHR criteria

According to the case law of the European Court of Human Rights (the “Engel Criteria”), the imposition of sanctions may fall within the definition of a “criminal charge” within the meaning of the Convention, which is subject to autonomous interpretation.

The “Engel Criteria” include:

1. Legal classification of the offense under national law.
2. The very essence of the offense.
3. The severity of the punishment that can be applied to the person.

The second and third criteria are alternative. However, this does not preclude a cumulative approach in a situation where a separate analysis of each criterion does not allow reaching a final conclusion on the existence of a criminal offense (see Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006-XIV; Ezeh and Connors v. the United Kingdom [GC], no. 39665/98 and no. 40086/98, §§ 82-86, ECHR 2003-X).

If the analysis of at least one of them indicates the criminal nature of the charges, the guarantees provided for in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial, apply.

Given the potential severity of the sanctions and their impact on property rights and business reputation, there is a risk that the ECtHR may qualify their application as a “criminal charge”, which would require compliance with the relevant procedural safeguards, which are currently not fully provided by national legislation.