In the nearly two years since Russia’s full-scale invasion of Ukraine, the European Union and its allies have imposed unprecedented sanctions that have made Russia the world’s most-sanctioned country today. EU sanctions currently target nearly 1,950 individuals and entities, and that number is set to increase with the expected adoption of the 13th package of sanctions later this month.
While the sanctions have a clear goal of targeting actions that “undermine or threaten the territorial integrity, sovereignty and independence of Ukraine,” the exact criteria for what constitutes such activity is less clear and has varied from case to case. Even less clear are the criteria for successfully appealing sanctions once they have been imposed, given the absence of a concrete removal mechanism. These potential drawbacks of sanctions have been raised by observers and have left the EU vulnerable to legal challenges, with dozens of listed individuals currently appealing their restrictions in the courts.
On 7 February, the EU General Court dismissed the sanctions appeal of Uzbek-Russian billionaire Alisher Usmanov, a metals and media tycoon who has been called one of the closest businessmen to Russian President Vladimir Putin. The court’s detailed judgement was published online, offering an opportunity to examine the legal reasoning behind the decision to impose and maintain sanctions against one of the most high-profile individuals to be targeted over the war in Ukraine.
Due to Usmanov’s prominent status – as well as his widely publicised campaign to get restrictions lifted – the editorial team of the European Interest decided to ask a group of independent legal experts to dissect the court’s decision and offer some key takeaways into how the EU legal system interprets sanctions adopted at the political level by the EU Council.
The legal experts consulted for this analysis, who have remained anonymous due to the sensitive nature of the issue, found that the approach of the EU General Court appeared to be aimed towards upholding sanctions and avoiding any serious scrutiny of most of the allegations against Usmanov in the sanctions reasoning.
According to the experts, the court’s judgement suggests that it is focused “on vindicating the position of the Council at any cost, no matter how farfetched and speculative its allegations are.”
Below, we summarise the legal experts’ main conclusions from the EU General Court’s ruling in Usmanov v. Council. The European Interest sent a request for comment to the court. They replied, “The Court of Justice does not explain or comment on its judgments”.
Usmanov was sanctioned by the EU several days after the Kremlin’s invasion of Ukraine in February 2022. His sanctions reasoning states that he has “particularly close ties” to the Russian president and has been referred to as one of Putin’s “favourite leading businesspersons.” It also states that the businessman reportedly fronted for Putin and “solved his business problems.” European officials also stated that when Usmanov took control of the business daily Kommersant, the newspaper’s editorial freedoms were curtailed and it “took a manifestly pro-Kremlin stance.” As evidence of the latter, the EU cited the fact that during Usmanov’s ownership the newspaper published a “propagandist anti-Ukrainian article” by former Russian President Dmitry Medvedev.
Given the long list of accusations in Usmanov’s sanctions reasoning, the legal experts found it noteworthy that the EU General Court chose to focus solely on his purported support for the destabilisation of Ukraine through his ownership of Kommersant.
“It is typical for the EU General Court to review only one accusation, leaving the rest unchecked,” one of the legal experts said. “In so doing, it avoids having to address the remaining allegations on their merit. While convenient for the EU General Court, this approach leaves sanctioned individuals without any means of defending themselves against defamatory statements made by the Council, even though these statements have major negative effects on their lives and reputations.”
According to the expert, the likely explanation for the EU General Court’s decision not to address the Council’s claims about Usmanov’s alleged closeness to Russian decision-makers is weaknesses in the Council’s supporting evidence, which usually consists of reports in the media. Highlighting these weaknesses could cause unwelcome public criticism of the Council (this September, the Council already came under fire for using questionable evidence and AI-generated articles to justify sanctions).
Usmanov’s case would have been a prime example of questionable evidence: this January, a German court issued a ruling against Forbes magazine, which had published an article claiming that Usmanov had “repeatedly fronted for Putin and solved his business problems.” This wording appeared in the EU sanctions reasoning for Usmanov as one of the key factors for imposing restrictions against him.
The German court sided with Usmanov and found that Forbes failed to provide evidence of this claim, banning it from further distribution in Germany. But the EU General Court’s decision made no mention of the Forbes article among the evidence in Usmanov’s sanctions listing, apparently to avoid the inconvenient fact that the article had been struck down by a court of an EU member state.
The court likewise ignored an earlier ruling against the Austrian newspaper Kurier, which was banned from calling Usmanov “one of Putin’s favourite oligarchs, as Putin himself called him” after failing to provide evidence of this claim in a legal dispute. Until recently, the “favourite oligarch” claim also featured prominently in Usmanov’s sanctions reasoning.
To support the claim that Usmanov suppressed editorial freedoms at Kommersant, the Council’s evidence relies on almost decade-old articles from obscure sources while ignoring materials from credible outlets that speak to Kommersant’s independence, one Berlin-based expert with knowledge of the Russian media landscape says.
For example, U.S. Treasury officials called Kommersant “one of Russia’s most independent remaining publishing companies” in March 2022. In November of that year, The Economist described Kommersant as one of the remaining outlets in Russia that are “not propaganda organs.”
At the same time, in maintaining that Usmanov controls editorial decisions at Kommersant, the court cited several articles in the media while striking down testimonies by current and former newspaper employees, who know its editorial policy firsthand, as irrelevant or insufficiently credible.
“One has to wonder what evidence Usmanov was supposed to present to the court to override the Council’s assumptions,” said another one of the legal experts. “How can one prove that he or she does not control a newspaper’s editorial policy if not through the testimony of its journalistic staff?”
“To put it simply,” the expert said, “the court is saying that the evidence of [Usmanov’s] alleged actions and Kommersant’s pro-government editorial policy is relevant, whereas the evidence to the contrary is irrelevant. Such an obvious logical fallacy can only be explained by a lack of impartiality.”
The court’s decision to maintain sanctions against Usmanov ultimately boiled down to the argument that he supported the Russian government’s policies in Ukraine because Kommersant, under his ownership, published a pre-war op-ed by Deputy Chairman of Russia’s Security Council Dmitry Medvedev that appeared to justify the invasion.
Essentially, Usmanov is being held responsible for the fact that, in October 2021, Kommersant ran an op-ed by Medvedev that was seen as anti-Ukrainian by many observers. In the text, Medvedev argued that Russia’s contacts with Ukraine’s current leadership were “useless,” because the latter were unreliable and could not make decisions independently of their Western supporters. The EU General Court found that Usmanov “actively support[ed] the Russian government’s policies of destabilization of Ukraine” because, as the owner of Kommersant, he “could not reasonably have been unaware of the content of the newspaper’s publications.”
The legal experts said the court’s logic is flawed for a number of reasons. First, it suggests that the owner of a media outlet should be personally responsible for, and/or personally agrees with, every piece of content published by that outlet. This contradicts the generally established view that the owner of a news outlet should be impartial and avoid mixing personal views with editorial policy.
Second, the court appeared to disregard Kommersant’s long track record of publishing a variety of opinions from across the political spectrum. These have included opinions by Western and foreign officials, including an April 2023 interview with U.S. Ambassador Lynne Tracy that criticised the state of bilateral relations with Russia and drew the ire of the Russian Foreign Ministry, as well as a recent interview with Israel’s ambassador to Russia, who criticised Russia’s stance toward Hamas.
Kommersant’s website shows a surprisingly rich legacy of publishing various political views, including criticism of the Russian government by individuals who have been branded as “foreign agents” in Russia. In that regard, it appears illogical to accuse the newspaper’s owner or its editorial team of “supporting” a particular point of view by merely publishing one article expressing that viewpoint among many others.
Finally, legal experts found that upon careful reading of the original, Medvedev’s op-ed does not support the war. The text was published four months before Putin’s surprise invasion of Ukraine, and it never mentions or suggests the idea of taking military action against Russia’s neighbouring country. In fact, the article ends with a call for Russia to do “nothing” and wait for the emergence of a new leadership in Ukraine in order to restart relations. In hindsight, the article may even read like a warning against making rash military decisions. Whatever one’s interpretation of the text, the fact that it was published months before the invasion means that Usmanov is retroactively being punished for “supporting” actions that had not yet taken place.
The legal experts said the EU General Court’s selective approach and logical fallacies raise the question of whether the European legal system is committed to upholding justice and the right to a fair trial, rather than upholding sanctions at any cost. While it’s undoubted that Russia has severely violated the law with its invasion of Ukraine, they said the EU should not lower its own legal standards when seeking and implementing an appropriate response.
According to the legal experts consulted for this analysis, the court’s decision against Usmanov’s sanctions appeal suggests that the European legal system has lowered the bar, moving away from concrete evidence and logical reasoning towards a “good enough” approach.
“The court’s approach undermines the reputation of the EU’s judicial system and shows that the court has decided to act as an instrument to safeguard political decisions, and not as an institution responsible for restoring justice,” one of the legal experts, based in Brussels, concluded.
