Hastily compiled dossiers leave the bloc vulnerable to legal challenges.
By LEONIE KIJEWSKI
Illustration by Anson Chan for POLITICO
IT WAS AN UNUSUAL APOLOGY: from the office of the president of the European Council to a sanctioned Russian oligarch.
In a confidential evidence packet used by the European Union to justify freezing his assets, Viatsheslav Moshe Kantor’s nationality had been listed as “Jewish/Russian.”
A 70-year-old billionaire who once headed the Russian fertilizer giant Acron, Kantor stepped down as president of the European Jewish Congress after being sanctioned by the EU and the United Kingdom in April 2022. He holds Russian, U.K. and Israeli citizenship.
The designation “Jewish/Russian” could be a mistaken reference to a Soviet-era ethnic classification, but several scholars commissioned by Kantor’s lawyers found it to be an antisemitic description that should not have been included in an official document.
“We sincerely regret the error,” reads a July 2022 letter seen by POLITICO to Kantor from the Cabinet of Charles Michel, president of the European Council, the intergovernmental branch of the EU. The evidence packet, it noted, “has been rectified.”
The embarrassing slip-up isn’t an exception. It’s indicative of the slipshod nature of the evidence used by the EU as it seeks to put pressure on those close to Russian President Vladimir Putin following his full-scale invasion of Ukraine.
In researching this article, POLITICO obtained access to five of the so-called “working papers” used by the Council to justify sanctioning Russian business leaders, officials and their family members.
The packets — labeled as “LIMITE,” an internal EU classification that indicates they are not to be shared with the public — run to dozens of pages. They consist of a description of the legal basis for the sanctions, a summary of the justification and a short biography of the individual, followed by the evidence supporting the accusation.
While the documents are labeled as secret, the evidence they rely upon is anything but:
One evidence packet relies on 10 open-source links with varying degrees of reliability. Another on nine. Another on four. They include articles from publications like the Financial Times and Reuters but also rely heavily on machine-translated articles from Russian or Ukrainian sources of varying credibility. One packet, for example, cites an article published by a lifestyle magazine affiliated with the Russian government, which has been accused of propaganda and that publishes more cooking recipes than serious journalism. Another cites a thinly sourced website dedicated to the dubious affairs of rich Russians.
As background material, the packets cite one-page profiles from Forbes magazine or Wikipedia articles about the proposed target for sanctions. Inclusion on the so-called U.S. oligarch list, which names some 100 people the country’s Treasury Department views as “oligarchs,” is cited as evidence of wrongdoing, even if not everybody on the list has been sanctioned.
Together, the packets reveal how the EU bases many of its sanctions decisions — cutting off assets and banning travel into the bloc — on shaky evidence, leaving the bloc vulnerable to court challenges.
Few in the West would dispute that many of the nearly 1,600 people the EU has sanctioned over the Russian invasion are being appropriately treated. But it’s equally clear, say lawyers for sanctioned individuals as well as independent experts, that the bar for evidence is shockingly low — especially given the severity of the consequences.
“This is a civil death in the sense that when they are sanctioned, they are almost completely cut off from economic life,” said Viktor Winkler, a German lawyer who specializes in sanctions but has no Russian clients.
“I don’t have a yacht, so I don’t feel sorry for these yacht owners,” Winkler said. “On the contrary, as a working-class kid I’m quite happy.
“But it is a problem,” he added. “We created this sanctions instrument, which is a very, very, very sharp sword. And the way that [the EU] is using this sword is no longer acceptable.”
Frenetic pace
The evidence packet used to sanction Kantor in 2022 is 64 pages long and includes eight articles and websites, six of which are machine-translated versions of Russian originals. The bulk of the packet is made up of screenshots of entire articles, with relevant passages highlighted in yellow.
Two of the articles, on the Russian web portal Rambler and outlet Vecherniy Murmansk, are labeled on the websites as an “advertisement” or “paid advertisement” — a description that was not included in the evidence packet. The working paper also mistakenly lists Kantor as a shareholder of Acron, instead of a beneficial owner, a legal distinction that implies a difference in how much active control a person has over a company.
“He has openly declared his support and friendship for Vladimir Putin on numerous occasions, and enjoys good relations with the Kremlin,” the packet reads. “He has therefore been supporting materially and benefitting from Russian decision-makers responsible for the annexation of Crimea or the destabilization of Ukraine.”
Kantor has challenged the decision to sanction him at the Council and the General Court in Luxembourg, the branch of the Court of Justice of the European Union that hears complaints from individuals. His lawyers dispute that he’s close to Putin, according to filings seen by POLITICO, arguing that he had only met the Russian leader on the fringes of events.
The EU has imposed sanctions for decades, but while the quality of the evidence packet has significantly improved since the early days, it underwent a noticeable dip as the EU rushed to sanction hundreds of people following Putin’s full-scale assault, said Michael O’Kane, a London-based attorney from the law firm Peters & Peters who has represented sanctioned individuals.
In contrast to the British foreign office, which tends to cite mostly credible publications when applying sanctions, the EU is more likely to include evidence from social media or blog posts, or information provided by opposition figures, O’Kane said.
“If you’re going to depart from established, respected journalistic outlets, then enhanced due diligence needs to be done on the sources of the information you’re seeking to rely upon,” he added.
One diplomat from an EU country described sanctions decisions being taken at a frenetic pace, with a handful of staffers from the diplomat’s country working at least 12 hours a day over the past year to compile new evidence packets and improve existing ones.
In March, a group of lawyers, many of whom represent Russian oligarchs, published an open letter complaining about the information used by the EU.
“Many individuals have been listed only on the basis of publicly available sources, gathered from a simple Google search, including from questionable online-tabloid articles or anonymous blogs,” they wrote. “Because of this flawed preparatory work, many sanction designations include within their listing grounds gross misrepresentations, false factual statements and inconsistencies.”
‘Russian crimes’
For a person to be sanctioned, evidence is first collected by an EU country and then passed on to the European External Action Service (EEAS), the bloc’s diplomatic service, which presents it to representatives of all 27 EU countries at the Council for what essentially is an up-down vote. There is no formal review of the decision, and the countries selecting the targets are among those pulling the trigger. EU ambassadors decide twice a year by consensus whether to renew the list in its entirety, but aside from Hungary pushing to remove a few names for political reasons, there has been little debate over doing so.
Those subject to sanctions can ask the Council to review its decision, but this is rarely successful. Countries like Estonia, Lithuania and Poland are resistant toward delisting people in order to keep pressure on Russia, according to an official briefed on confidential discussions. Only a handful of people have been removed from the EU’s sanctions list, most of them because they had died.
A target can appeal the decision to the EU’s General Court, but the process is time-consuming and expensive. And even if the judges rule that sanctions should be lifted, there’s nothing stopping EU officials from simply compiling another evidence packet and listing them again — as they repeatedly did in the cases of Violetta Prigozhina — mother to Yevgeny Prigozhin, the late head of the Wagner mercenary group — and former Ukrainian President Viktor Yanukovych and his son Oleksandr.
Kantor’s lawyers requested he be removed from the sanctions list last year but were quickly rejected.
“You claim that the Council has relied on unreliable evidence and that your client’s designation was unjustified,” the EU institution replied in a letter to his lawyers dated September 15, 2022. “Contrary to what your client argues, first, the Council stresses that it relied on various and reliable sources of information.”
As part of their response, officials compiled a second evidence packet justifying keeping Kantor on the sanctions list. This one ran to 30 pages and contained 17 sources, including a link to his Wikipedia page.
Asked whether a Wikipedia article was appropriate evidence for applying sanctions, the same EU diplomat said it could be problematic. “There is no common definition of if it could be acceptable or not,” the diplomat said. “But this would also have to be a very good Wikipedia article.”
In arguments before the General Court, the Council’s lawyer Bart Driessen frequently points out that it is not his institution, but rather the EEAS, that is responsible for gathering the evidence.
While defending a challenge by the Russian businessman Grigory Berezkin in July, Driessen found himself having to explain to the judges why the Council had based its decision in part on an article that was labeled as having been written by an AI bot called “Carmen.”
He was also asked about the reliance on another website, called “Russian Crimes,” that seemed to have been written by journalists who don’t exist, and which the Council cited in its legal responses to complaints against the sanctions decision.
A reverse image search on the Russian search engine Yandex reveals that one of the headshots of the alleged authors is of a New York-based model, while the profiles of other authors appear to use stock photos.
“Russia is, I think we probably agree, a difficult country when it comes to the press,” Driessen told the court. “It’s really difficult to find information in Russia … I cannot give you more information about the sources.”
Outside the courtroom, Drissen remained tightlipped. “I don’t speak to journalists,” he told POLITICO after a hearing. “The Council is careful about that.”
Earlier this month, the Council removed Berezkin and two other Russian businessmen from its sanctions list.
See you in court
So far, 95 challenges to the EU Russia sanctions, including Kantor’s, have been lodged at the General Court.
In one of the most high-profile cases, Prigozhina won her appeal in March after the court ruled that merely being the family member of a close Putin ally wasn’t enough to justify including her on the list.
The ruling also noted outdated information in her evidence packet. The Council had based its decision in part on her ownership of Concord Management and Consulting LLC, a company founded by her son — but the court found that she had not been the owner since 2017.
And in a historic first in March, 24-year-old racing driver Nikita Mazepin, sanctioned since March 2022, was granted a temporary suspension of parts of the sanctions to allow him to participate in Formula 1 races. He had his first court hearing on September 11, and lawyers are saying he has a good chance of winning when his judgment is delivered in a few months.
During a first batch of judgments, delivered at the beginning of September, seven out of eight Russian businessmen and women lost their cases.
It’s too early to tell how many other sanctioned individuals will prevail, but in past years about a third of sanctions challenges were eventually successful, according to sanctions expert Winkler.
“Every judgment in which an oligarch wins at the court is, of course, celebrated in Russia and can be easily used for their propaganda,” Winkler said. “That’s my main reproach: That an already legally difficult, delicate issue is then also pursued with unnecessary dilettantism.”
In response to questions by POLITICO, the Council declined to comment on individual cases or non-public documents and referred further questions to its website.
“The Council duly and thoroughly examines the judgments of the Court of Justice of the European Union, and takes all the necessary measures to comply with them,” it said in a statement. “Furthermore, listed persons are regularly invited to present observations to the Council. The Council delists persons when the reasons for their listing are no longer sufficient.”
So far, the EU seems largely unconcerned by the challenges in court.
“We have to make sure that we do not start doubting ourselves,” Lithuania’s Deputy Foreign Minister Jovita Neliupšienė said in an interview in Vilnius. “The packages are quite strong. There are some of the sanctioned persons who are actually regime supporters, or warmongers: If they hire the best lawyers, that does not really mean that we have to backtrack.”
The diplomat from an EU country put it more bluntly: “The more the listings are challenged, the higher standard the court sets, we, wanting to be proactive … need to put more and more evidence,” the diplomat said. “The more evidence you get, the better chance that what you’re accusing them [of] is true.”
Shifting criteria
The Council has been closely watching the proceedings, and adjusting its sanctions policy accordingly.
In its latest round of sanctions, adopted in June, the EU broadened the range of possible targets to include family members of leading businesspersons. It also shifted the criteria from only targeting leaders in specific sectors to any businessperson working in those sectors, or leading businesspersons in Russia more generally.
“To our knowledge, this change of approach is unprecedented in the history of EU sanctions,” said Sven De Knop, a lawyer at the firm Sidley Austin.
As part of its push to make the sanctions stick, the Council sent around an apparent catch-all document on Russia’s economy as supporting evidence.
The 248-page document, labeled “LIMITE” and seen by POLITICO, is meant to “serve as evidence supporting the listing of certain economic actors, including businessmen, executives and managers, their family members and other individuals involved in business activities in Russian Federation [sic]… by showing the business environment and economic reality in which they function.”
Like the evidence packet, the document relies on material that seems to have been hastily grabbed from the internet, including a spreadsheet, “translated by DeepL,” of the Russian Federation’s 2020 budget, a link to the Wikipedia article about Russia’s RTS stock index and screenshots of websites of Russian export statistics, complete with targeted ads for FlirtFinder (“voel je je alleen?” — “are you feeling lonely?”) and winter parkas.
The report also includes typos and incomplete information, such as relevant excerpts that are “to be added.”
“It is hard to exactly understand what this document really is / means,” one lawyer who represents sanctioned Russians said in an email.
The lawyer noted that the Council published a justification for broadening its sanctions criteria in June in which it said it had “assessed that a relationship of mutual benefit and support exists between the Government of the Russian Federation and leading businesspersons operating in Russia.”
“At this point, it is a bit like reading tea leaves but one educated guess could be that this is the result of the alleged ‘assessment’ conducted by the Council,” the lawyer said.
“If that is the case,” the lawyer added, “it is hard to say whether one should laugh or cry.”
Barbara Moens and Jacopo Barigazzi contributed reporting.