https://orcid.org/0000-0002-6736-8008
Abstract. In 2014, the Russian aggression against Ukraine began and it escalated even greater in February 2022. The Western states, including the Member States of the European Union, reacted and introduced a wide variety of sanctions, first in 2014, then in 2022, yet until now they have not led to the termination of the Russian–Ukrainian conflict and to the withdrawal of the Russian troops from Ukraine. The aim of this article is to analyse these sanctions and their development as well as the judicial control that was effectuated in relation to these measures by the Court of Justice of the European Union.
Keywords: sanctions, restrictive measures, aggression, Russia, Ukraine, judicial control
Streszczenie. W 2014 r. rozpoczęła się Rosyjska agresja przeciwko Ukrainie, która znacznie eskalowała w lutym 2022 r. Państwa Zachodu, w tym państwa członkowskie Unii Europejskiej, zareagowały na nią i wprowadziły szeroki wachlarz sankcji, najpierw w 2014 r., a następnie w 2022 r., jednakże do tej pory środki te nie doprowadziły do zakończenia konfliktu rosyjsko-ukraińskiego i do wycofania oddziałów rosyjskich z Ukrainy. Celem artykułu jest analiza sankcji oraz ich rozwoju, jak również kontroli sądowej wykonywanej przez Trybunał Sprawiedliwości Unii Europejskiej nad tymi środkami.
Słowa kluczowe: sankcje, środki ograniczające, agresja, Rosja, Ukraina, kontrola sądowa
The aim of the article is to analyse the issue of the sanctions applied by the European Union as a reaction to the Russian aggression on Ukraine. As the conflict is dated back to 2014, the deliberations will be divided into two parts. First the article will focus on the EU measures adopted after the illegal annexation of Crimea in 2014. The second part of the paper will concentrate on sanctions imposed after 24th February, 2022. Both parts will contain an overview of restrictive measures, consideration on their legal basis, and the scope of judicial review, which will make it possible to form conclusions on the legality of those sanctions. For this reason, the article will focus mainly on those measures that were subjected to judicial review.
In February 2014, due to the impeachment procedure applied against the Ukrainian President Viktor Yanukovych, clashes between pro-Ukrainian and pro-Russian protesters broke out. The pro-Russian protesters demanded the secession from Ukraine and a help from the Russian Federation. Government buildings in Crimea, including one of the Supreme Council, were seized and locked by armed and masked individuals. After that, the Supreme Council decided on a referendum on the status of Crimea (Bebler 2015, 40; Bilková 2015, 34; Olson 2014, 19; Yue 2016, 182).
The Crimean referendum took place on 16th March, 2014. 96,77% voters out of 81.36% registered voters that took part in the referendum chose the separation of Crimea from Ukraine and its annexation to Russia. However, the results were not verified by impartial international observers. Ukraine did not recognise the outcome. Moreover, it was not accepted by many of the EU and the NATO member states. On 17th March, 2014, Crimea declared its independence, and on 11th April, 2014, it adopted a new constitution of the Republic of Crimea. A treaty on annexation of Crimea and Sevastopol to the Russian Federation was signed on 18th March, 2014, in Moscow. Nevertheless, on 11th April, 2014, the Ukrainian Parliament declared Crimea and Sevastopol “occupied territories” (Bebler 2015, 42–43, 53; Olson 2014, 20).
As a result, pro-Russian protests and actions took place in other Ukrainian cities such as Donetsk or Lugansk. On 17th July, 2014, a civilian aircraft on an international flight, Malaysian Airlines flight MH17, was shot down in the Donetsk Oblast, probably by Russian rebels, causing death of 298 passengers and crew on board.[1] On 5th September, 2014, the NATO leaders called upon Russia to restore previous Ukrainian borders (Bebler 2015, 47, 51). Despite this, the situation did not change and in July 2015, the Russian Prime Minister Medvedev declared the full annexation of Crimea to the Russian Federation (McHugh 2015).
The European Union declared that Russian activities in the territory of Ukraine constituted a gross violation of international public law because of the prohibited use of force and coercion, which was in breach with the Helsinki process.[2] The prohibition of the use of force is considered to be jus cogens (a peremptory norm of international law), as well as a customary law and one of the fundamental principles of international law (Bilková 2015, 28; Gilder 2015, 26; Mik 2013, 43–44).[3] The activities of the Russian Federation constituted a prohibited act of aggression. As V. Bílková rightly points out, the Russian forces were within the territory of another state (Ukraine), and although they were there with the primary agreement on the part of Ukraine, they were finally used in contravention of the conditions provided for in this agreement. Moreover, they engaged and supported actions that violated the internal law of Ukraine and there was on the part of Russia a hostile intention for the use of these armed forces. There appeared also a certain degree of gravity, confirmed by the effects of the use of force and the presence of the Russian military troops in Ukraine, namely the illegal annexation by Russia of Crimea and Sevastopol, constituting the breach of territorial integrity of Ukraine, as well as an invasion and a military occupation resulting from such an invasion. According to the mentioned author, the Russian activities could be even qualified as an armed attack (Bilková 2015, 33–37), triggering Ukraine’s right to self-defence.[4] As such, Russia’s war of aggression endangers the security of the European region and for this reason, the EU’s sanctions are justified as collective countermeasures (Kokott 2023, 5).
In relation to the Russian Federation, the European Union introduced prohibitions concerning financial transactions, including the ones with the five major Russian banks as well as embargo on the import and export of arms, related materials, and military goods and technology to and from Russia.[5] As to the territories of Crimea and Sevastopol, the EU imposed an import embargo on all goods coming to the EU from these territories with the exception of goods examined and controlled by the Ukrainian authorities and which have been granted a certificate of origin by the Ukrainian government, an export embargo on all goods, technology, services (including technical assistance, brokering, construction, engineering or tourism services) to Crimea and Sevastopol, and the prohibition of any type of investments on these territories. The Council ordered the EU Member States to implement these measures and provide for effective, proportionate, and dissuasive penalties for breach of any of the above-mentioned prohibitions.[6
Finally, the European Union introduced restrictive measures against individuals (natural or legal persons, entities, or bodies) responsible for the misappropriation of the Ukrainian State funds, for human rights violations in Ukraine[7] and for the destabilisation of the situation in Ukraine, and against individuals associated with them.[8] This means that these persons do not have to individually or directly threaten or undermine the territorial integrity, sovereignty, and independence of Ukraine, but it is enough that they materially or financially support the actions taken to that effect.[9] These measures include: travel ban, freezing of funds, and other economic resources. The individuals targeted by the sanctions are listed and the listing should also include the grounds for it as well as information necessary to identify the individual concerned. The EU law provided also for exemptions on humanitarian grounds or due to attending an intergovernmental meeting. The exemptions are authorised by the Member States and require to inform other EU Member States and the Commission. The Member States are also obliged to implement the prohibitions in their national laws and provide for the penalties applicable to infringements of the provisions of the EU sanctions.[10]
It results thereof that the European Union decided to apply sanctions of a mixed character. These are economic measures of general application against a state or region and, on the other hand, targeted sanctions. This diversification was intended to positively influence the effectiveness of the EU’s reaction to the Crimean conflict. On the other hand, these measures were regarded as low-intensity sanctions with diminishing effect every year, permitting Russia to minimise the real impact of sanctions, which finally led to the escalation of the Russian aggression in 2022 (Shangina 2022, 4).
Being an international organisation, the European Union can act only within the powers conferred to it by its Member States.[11] Promoting and contributing to international peace and security as well as to the strict observance and the development of international law in accordance with the principles enshrined in the UN Charter is one of the Union’s main objectives, also within the scope of Common Foreign and Security Policy (CFSP).[12] The decisions relating to the CFSP are issued unanimously by the European Council and the adoption of legislative acts, in the meaning of Article 289 TFEU, is excluded.[13] The Council’s decisions can define the approach of the Union to a particular matter of a geographical or thematic nature.[14] On the basis of a decision taken within the CFSP, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, can adopt economic sanctions in relation to one or more third countries, or restrictive measures against natural or legal persons and groups or non-State entities.[15 The European Union makes use of these provisions and often uptake actions, including targeted measures, that prove the EU’s intent to be a European leader in the peace and security policy.[16]
The Union’s competence to adopt measures in relation to the Crimean conflict, as well as their scope and the procedures used, were disputed before the CJEU. The Attorney General Wathelet suggested[17] to the Court that the Union’s authorities had legal basis for their action as well as respected the division of powers and procedures provided for by the Treaties. The Attorney General underlined the specificity of the CFSP and concluded that the decision 2014/512/CFSP and the regulation 833/2014 are not legislative acts and could be issued within the frame of the CFSP.[18]
The General Court was of an opinion that the European Union could impose targeted sanctions and apply Article 215 TFEU in relation to the Crimean crisis, as this action falls within the scope of the EU competence in the CFSP area. The individual measures can be directed solely against individuals identified as being responsible for the misappropriation of public funds and to persons, entities, or bodies associated with them, whose actions are liable to have threatened the proper functioning of public institutions and bodies linked to them, undermining the rule of law in the state concerned.[19] In its judgment of 28th March, 2017, in the case of Rosneft, the Court of Justice confirmed that Article 215 TFEU can serve as a legal basis for the adoption of targeted measures in relations to the Crimean conflict. Moreover, it stressed that Article 29 TEU can be used by the Council to describe in detail the persons and entities that are to be the subject of the restrictive measures provided for subsequently in the regulation issued on the basis of Article 215 TFEU.[20] This is consistent with the hitherto jurisprudence of the Court of Justice, according to which once the Council uses its competences under the CFSP to react to a given situation constituting a threat to international peace and security, Article 215 TFEU can be a legal basis for the individual targeted measures.[21]
Taking into consideration the Union’s objectives, its tasks under the CFSP, and the competence to adopt sanctions enshrined in Article 215 TFEU, it cannot be reasonably argued that the Union acted ultra vires. In that state of affairs, the only possible conclusion is that there was an illegal intervention of the Russian Federation in Ukraine and there are no legally valid reasons justifying this interference. That is why the EU decided on the application of a wide range of measures which aim at the stabilisation of the situation in Ukraine and had legal basis to adopt them.[22] These measures were taken with regard to the Russian Federation, to the territories of Crimea and Sevastopol, and to the individuals responsible for the misappropriation of the Ukrainian State funds or for the destabilisation of the situation in the part of the Ukrainian territory.
The listed persons sought to challenge the imposed targeted sanctions before the Court of Justice of the European Union.[23] The individuals’ arguments concerned the factual and legal background justifying the imposition of the restrictive measures, as well as the breach of their fundamental rights. Although some of the acts in question fall in the scope of the Common Foreign and Security Policy, the CJEU has a competence to verify the legality of these acts on the basis of Art. 275 TFEU, including the Court’s power to control the legality of general provisions. Otherwise, as the Court states, the lack of judicial control would undermine the fundamental right of access to justice.[24]
The allegations of individuals concern mostly the right of the defence, as enshrined in Article 41(2)(a) of the EU Charter of Fundamental Rights and the right to effective judicial remedy affirmed by Article 47 of the Charter. These rights include the right to be heard and the right to have access to the file, with the reservation of maintaining confidentiality of some part of the file if the issues of security are at stake. In the first place, it has to be pointed out that the Council is not required to hear the individual before the first listing takes place, so that the imposed sanctions would have a surprise effect, but, as a principle, the individual should be heard by the authority before they make a decision on maintaining them on the list at issue. This obligation of hearing does not, however, cover the situations in which the measures are maintained on the same grounds as those that justified the initial listing. The requirement of hearing is also fulfilled if the Council communicates with the individual’s representatives. Moreover, the authority does not have to spontaneously grant the individual an access to all the non-confidential files, but the request from the party concerned is necessary. The mere infringement of these rights does not suffice in itself to annul the act; it must be demonstrated that, had it not been for that breach, the outcome of the procedure might have been different.[25]
While discussing the legality of the smart sanctions, it has to be borne in mind that the Council has a broad margin of appreciation as to what to take into consideration for the purpose of adopting economic and financial sanctions. It has to be especially remembered while assessing the compatibility of the act in question with the right to effective judicial review. In the case of restrictive measures, the Courts’ review is limited to checking the rules governing procedure and the statement of reasons, and also to verifying if the facts are materially accurate and that there has been no manifest error of assessment of the facts or misuse of power. At least one of the reasons given by the EU institution should be substantiated by sufficiently specific and concrete evidence, and it is the task of the EU authority to establish that these reasons are well-founded, as it is not the obligation of the individual concerned to prove that they are not (eius incumbit probatio qui dicit non qui negat).[26]
Moreover, the Court underlined the significance of the proper statement of reasons to the decision on listing. On the one hand, it should provide the individual concerned with sufficient information to make it possible to determine whether the act is well-founded, and on the other hand, it should enable the EU Courts to review the lawfulness of the act. Although the specification of all the relevant matters is not necessary, the statement of reasons cannot consist merely of a general, stereotypical formulation, and it should include matters of fact and law which constitute the legal basis for the adoption of the targeted sanctions, as well as the considerations which led to the imposition of those measures. The failure to state reasons by the EU institution cannot be remedied during the proceedings before the Court. In the cases concerning the sanctions imposed in connection to the situation in Ukraine, the Court acknowledged that the mere reference to connections of an individual to some unspecified ‘Russian decision-makers’, without further details, is too vague and not sufficient to justify the listing. Moreover, these should be precisely those decision-makers that are responsible for the destabilisation of the situation in Ukraine, as the sanctions concern the conduct of the Russian authorities in relation to Ukraine and not their conduct in general.[27]
In the case of Rosneft, the Russian company claimed that the restrictive measures breached the principle of equal treatment. The Court of Justice overthrew this argument by underlining the broad margin of appreciation that is granted to the Council in the area at issue. Therefore the choice of targeted undertakings or sectors is consistent with the objective of ensuring the effectiveness of the adopted sanctions.[28]
Finally, the individuals alleged that the targeted sanctions violated their right to property, the right to privacy, and the freedom to conduct a business. The Court noticed that the applied measures are not penalties but prospective pecuniary measures and that they do not constitute a deprivation of these rights, but only their restriction. As these rights are not absolute, some limitations are permissible, if they satisfy the requirements of the principle of proportionality. The restrictions should be provided for by law, refer to an objective of general interest (the protection of Ukraine’s territorial integrity, sovereignty, and independence), and may not be excessive, meaning they should be proportional to the aim sought, and the substance of the limited right should not be impaired. According to the Court, these conditions were fulfilled by the sanctions in question, taking into consideration the specificity and the aims of the Common Foreign and Security Policy, especially the objective of preventing conflicts and strengthening international security.[29]
These judgments stay in accordance with other CJEU’s judgments on targeted sanctions applied in other instances, e.g. the fight against terrorism. The Union’s Courts always seek balance between the aim pursued by the restrictive measures and the fundamental rights of the targeted individuals. The proper statement of reasons as well as guarantees of the right to a fair trial, including right to be heard, and the scope of limitations to economic and property rights of the persons are always under Court’s detailed scrutiny.[30] Therefore, it needs to be concluded that the limitations of the rights of individuals caused by the sanctions are not arbitrary and disproportionate to the aim sought.
To sum up the deliberations on the judicial control of the EU sanctions relating to the Crimean conflict, it has to be pointed out that the review is effective. The CJEU analyses legal and factual background for the imposition of the measures. In consequence, the Council decisions as well as the procedure of their adoption should meet certain conditions relating to the protection of human rights, including guarantees of a fair trial. Even when facing a threat to peace and security in the region, the EU institutions are obliged to respect the fundamental values of the EU law.
The aggression of Russia against Ukraine received a new impetus in 2022. On 15th February, 2022, the State Duma of the Federal Assembly of the Russian Federation voted in favour of asking President Vladimir Putin to recognise as independent States the parts of eastern Ukraine claimed by separatists. On 21st February, 2022, the President of the Russian Federation acknowledged the independence and sovereignty of the self-proclaimed “Donetsk People’s Republic” and the “Luhansk People’s Republic”, and ordered that Russian military forces be deployed in those areas. On 24th February, 2022, Vladimir Putin announced a special military operation in Ukraine and on the same day Russian armed forces attacked Ukraine.
The international community reacted to the aggression and condemned the Russian attack on Ukraine. The UN General Assembly in its resolution decided that the Russian aggression was in violation of Article 2(4) of the UN Charter and demanded Russia to immediately, completely, and unconditionally withdraw all of its military forces from the territory of Ukraine.[31] The Committee of Ministers of the Council of Europe first suspended the Russian Federation from its rights of representation in the Council of Europe,[32] and then ceased the membership of Russia to the CoE.[33] The attack of 24th February, 2022, was a very strong indication that the hitherto applied sanctions were not sufficient and new measures needed to be adopted by international community, including the European Union.
In the first place, it has to be emphasised that the sanctions imposed after the annexation of Crimea did not cease to have effect. The European Union continues to apply these measures and broadened their scope. Not only did new individuals get listed for the purposes of targeted sanctions, but also the EU introduced new types of measures in the regulation 833/2014, such as: the prohibition to sell, supply, transfer or export, directly or indirectly, dual-use goods and technology; the prohibition to provide public financing or financial assistance for trade with, or investment in, Russia; the prohibition to sell, supply, transfer or export, directly or indirectly, goods or technology and to provide technical assistance, brokering services or other services related to these goods. The new sanctions include a variety of prohibitions related to investing in Russia: to acquire any new or extend any existing participation in any legal person, entity or body incorporated or constituted under the law of Russia or any other third country and operating in the energy sector in Russia; to grant or be part of any arrangement to grant any new loan or credit or otherwise provide financing, including equity capital, to any legal person, entity or body incorporated or constituted under the law of Russia or any other third country and operating in the energy sector in Russia, or for the documented purpose of financing such a legal person, entity or body; to create any new joint venture with any legal person, entity or body incorporated or constituted under the law of Russia or any other third country and operating in the energy sector in Russia; and to provide investment services directly related to the above mentioned activities. The EU territory is closed for aircraft and sea vessels registered in Russia or owned by Russian entities. Luxury goods cannot be anymore sold and exported to any natural or legal person, entity or body in Russia or for use in Russia.
A very interesting set of sanctions is regulated by Art. 2f of the regulation 833/2014. It shall be prohibited for operators to broadcast or to enable, facilitate, or otherwise contribute to broadcast any content by the legal persons, entities or bodies listed in Annex XV, including through transmission or distribution by any means such as cable, satellite, IP-TV, Internet service providers, Internet video-sharing platforms or applications, whether new or pre-installed. Any broadcasting licence or authorisation, transmission, and distribution arrangement with the legal persons, entities or bodies listed in Annex XV shall be suspended. Lastly, it shall be prohibited to advertise products or services in any content produced or broadcast by the legal persons, entities or bodies listed in Annex XV. On the basis of this provision, the EU suspended the broadcasting activities and licences of the following outlets: Sputnik and subsidiaries including Sputnik Arabic, Russia Today and subsidiaries, Rossiya RTR/RTR Planeta, Rossiya 24/Russia 24, Rossiya 1, TV Centre International, NTV/NTV Mir, REN TV, Pervyi Kanal, Oriental Review, Tsargrad, New Eastern Outlook, Katehon.
Finally, the Council decided on the suspension of the application of the Agreement between the European Community and the Russian Federation on the facilitation of the issuance of visas to the citizens of the European Union and the Russian Federation.[34] Moreover, Russian banks were disconnected from SWIFT (Shangina 2022, 5).
By now, the European Union has blocked 300 billion EUR of the Russian Central Bank and has frozen 19 billion EUR belonging to Russian oligarchs. This would not suffice to cover damage suffered by Ukraine that is estimated at 600 billion EUR. Moreover, the assets of the Russian Central Bank cannot be confiscated, as it would be contrary to the rules on state immunity, whereas the assets of private actors could be confiscated, but only as a result of penal proceedings (Kokott 2023, 4–9). Nevertheless, it does not mean that the sanctions are deprived of any effect. One of the results of the fund freezing and of other economic sanctions is that these funds and other economic assets are not being used to finance the Russian aggression on Ukraine. The restrictions imposed on Russian citizens, such as the suspension of the issuance of visas, may decrease the support of Russians towards their government and the aggression on Ukraine.
The issue of the legal basis for the analysed measures has already been largely discussed, and the reasoning applied to sanctions imposed after the annexation of Crimea applies equally to the sanctions being in force after 24th February, 2022. However, the European Union broadened the scope of the restrictive measures, which led to questioning the legal basis de novo regarding the new types of sanctions.
That was the case of measures consisting of the prohibition of broadcasting, as described by art. 2f of the regulation 833/2014 regarding RT France.[35] On 1st March, 2022, the Council, on the basis of Art. 29 TEU, adopted the contested decision[36] and on the basis of Article 215 TFUE – the contested regulation[37] in order to prohibit continuous and concerted propaganda actions in support of military aggression against Ukraine by the Russian Federation, targeted at civil society in the European Union and neighbouring countries, channelled through a number of media outlets under the permanent direct or indirect control of the leadership of the Russian Federation, since such actions constituted a threat to the EU’s public order and security.[38] As it is stated in recitals (6) to (9) of the regulation 2022/350, the Russian Federation has engaged in a systematic, international campaign of media manipulation and distortion of facts in order to enhance its strategy of the destabilisation of its neighbouring countries and of the Union and its Member States. In particular, the propaganda has repeatedly and consistently targeted European political parties, especially during election periods, as well as targeting civil society, asylum seekers, Russian ethnic minorities, gender minorities, and the functioning of democratic institutions in the Union and its Member States. In order to justify and support its aggression against Ukraine, the Russian Federation has engaged in continuous and concerted propaganda actions targeted at civil society in the Union and neighbouring countries, gravely distorting and manipulating facts. Those propaganda actions have been channelled through a number of media outlets under the permanent direct or indirect control of the leadership of the Russian Federation. Such actions constitute a significant and direct threat to the Union’s public order and security. Those media outlets are essential and instrumental in bringing forward and supporting the aggression against Ukraine.
The General Court agreed with the Council that the European Union had a legal basis to adopt the contested measures on the prohibition of broadcasting. The Court noticed that since the propaganda and disinformation campaigns are capable of undermining the foundations of democratic societies and are an integral part of the arsenal of modern warfare, the restrictive measures at issue also form part of the pursuit by the European Union of the objectives assigned to it in Article 3(1) and (5) TEU. By adopting the contested decision, the Council therefore exercised the competence attributed to the European Union by the Treaties under the provisions relating to the common foreign and security policy, and the adoption of the contested regulation on the basis of Article 215 TFEU was a natural consequence of the decision, as the uniform implementation of the temporary prohibition of the broadcasting of the applicant’s content throughout the territory of the European Union could be better achieved at the EU level than at the national level.[39]
It has to be pointed out that Article 215 TFEU is formulated in a general and broad manner, leaving the EU institutions a wide margin of appreciation as to what restrictive measures against natural or legal persons and groups should be taken in reaction to a specific threat. It is not limited to sanctions of purely financial or economic nature. The suspension of the broadcasting licence falls within the limits set up by this Treaty provision.
The standard of review of targeted sanctions is already settled, which is why the applications of individuals to annul individual measures are subjected to rules already described in this paper. They were applied by the General Court in the judgment in Pšonka[40] concerning the sanctions adopted after 24th February, 2022, and there is no need to discuss these standards de novo here. That is why this part of the paper will focus on the new measures introduced after 24th February, 2022, namely the suspension of the broadcasting activities and licences of the selected media outlets.
In the case of RT France, the applicant raised that the adoption of the contested measures violated numerous fundamental rights, such as the rights of the defence including the right to be heard and the inadequacy of the statement of reasons. The Court emphasised that the restrictive measures were adopted in an extraordinary context of extreme urgency, as the rapid escalation of the situation and the gravity of the violations made any form of the modulation of the restrictive measures designed to prevent the conflict from spreading difficult. The adoption of the restrictive measures at issue immediately after the military aggression began, in order to ensure their full effectiveness, also met the requirement to put in place multiple forms of rapid response to that aggression. Restrictive measures against media outlets funded by the Russian State budget and directly or indirectly controlled by the leadership of that country, which is the aggressor country, in that they were considered to be at the root of a continuous and concerted activity of disinformation and manipulation of the facts, became, following the launch of the armed conflict, overriding and urgent in order to preserve the integrity of democratic debate in the European society. RT France and other listed media outlets engaged in propaganda actions in support of the military aggression against Ukraine, which was proven by numerous articles published on RT France’s website. The statement of reasons was comprehensible and sufficiently precise, thus it permitted the applicant to know the exact reasons for its listing. That is why the Court concluded that there was no violation of the rights of the defence regarding RT France.[41] This reasoning is in line with the case-law of the CJEU on targeted sanctions mentioned in the previous parts of the paper.
However, as RT France is a media outlet, the legal questions in the case RT France concerned also the freedom of expression, as enshrined in Article 11 of the EU Charter of Fundamental Rights and being a general principle of the EU law (Woods 2021, 344), and enshrined in Article 10 of the European Convention on Human Rights. This issue had not been discussed before, therefore it is necessary to analyse it in this part of the paper. It can be indicated that before 24th February, 2022, participation in the Russian propaganda could justify the listing of an individual on the targeted sanctions list, yet the Court did not asses the compliance of such listing with the freedom of expression.[42] It can be also noticed that the measure consisting of suspending media outlets had been applied before by some EU Member States, such as Lithuania and Latvia, on the basis of Article 6 of the AVMS Directive[43] against Russian-language television programmes (Baade 2023, 168).
Freedom of expression constitutes one of the essential freedoms of a democratic society based on the rule of law. It covers not only “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb, in accordance with the demands of that pluralism, tolerance, and broadmindedness, without which there is no “democratic society”.[44] Freedom of expression is not an absolute right and there are legitimate exceptions thereto provided that interference is necessary in a democratic society, meaning it corresponds to a pressing social need.[45] The protection of the right of journalists to impart information on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis, and provide “reliable and precise” information in accordance with the ethics of journalism.[46] These considerations play a particularly important role nowadays, given the influence wielded by the media in contemporary society: not only do they inform, they can also suggest by way in which they present the information.[47] The views of the ECtHR regarding the freedom of expression were generally adopted by the CJEU, which decided that the scope and the meaning of Article 11 EU Charter should be the same as the one of Article 10 ECHR (Woods 2021, 343–344).[48]
In its judgment in RT France, the General Court indicated that the limitation of the freedom of expression was provided by law. As the imposed measures are temporary in their nature, they comply with the essence of the freedom of expression and do not undermine this freedom, as such and they pursue an objective of general interest. The Court emphasised that the evidence gathered in the case files proved that RT France engaged in activities in support of the Russian Government’s actions and policies to destabilise Ukraine, during the period preceding the military aggression against that country, through articles published on its website and interviews seeking, in particular, to present the deployment of the Russian armed forces as a preventive action to defend the self-proclaimed republics of Donetsk and Luhansk. Moreover, once the military aggression had been launched, the applicant continued to adopt the official position of the authorities of the Russian Federation that the offensive was a “special operation”, a preventive, defensive, and limited action, caused by Western countries and by the aggressive attitude of the NATO and also by Ukrainian provocation, aimed at defending the self-proclaimed republics of Donetsk and Luhansk. Therefore, it was also of the utmost importance for the European Union temporarily to suspend the applicant’s propaganda activity in support of the military aggression against Ukraine from the first days when that aggression was launched. Such exercise of the freedom of expression, which covers propaganda activity to justify and support the Russian Federation’s illegal, unprovoked, and unjustified military aggression against Ukraine, cannot be said to have been of a kind calling for the enhanced protection afforded to press freedom under Article 11 of the Charter. The propaganda activity put in place by RT France forms part of the context of an ongoing war, provoked by an act committed by a State and characterised as ‘aggression’ by the international community, in breach of the prohibition on the use of force laid down in Article 2(4) of the United Nations Charter.[49]
It has to be pointed out that freedom of expression, which is so essential to democratic societies, does not cover propaganda, which is in its nature a negation of the very essence of the freedom of expression. Article 11(2) of the EU Charter of Fundamental Rights obliges every state to safeguard media pluralism, and the discussed sanctions definitely restrict this pluralism within the European Union. Nevertheless, taking into consideration their goal, they are not disproportionate to the aim sought.
A propaganda against peace or designed to provoke or encourage threats to peace was long ago condemned by the UN General Assembly.[50] Art. 20(1) of the International Covenant on Civil and Political Rights stipulates that any propaganda for war shall be prohibited by law. History knows examples in which propaganda incited to violence and genocide, such as the Rwandan conflict between Tutsis and Hutus. Tutsis were shown as traitors and a threat, and propaganda created among Hutus a sense of ‘urgency’ in response to the alleged danger caused by Tutsis. Mass killings were largely presented as a way of defence, and extermination was displayed as a measure against the cruelty of Tutsis and as a result for which around 130,000 people took actively part in the killings. The propaganda even led to forming a belief among French troops that the Hutus were, in fact, victims of the conflict (Lower, Hauschildt 2014, 1, 4–5).
Addressing the Russian propaganda shows that the European Union learnt a lesson from the Rwandan conflict. In 2016, the European Parliament observed that disinformation and propaganda are part of hybrid warfare. It recognised that the Russian Government was employing a wide range of tools and instruments, such as think tanks and special foundations (e.g. Russkiy Mir), special authorities (Rossotrudnichestvo), multilingual TV stations (e.g. RT), pseudo news agencies and multimedia services (e.g. Sputnik), or cross-border social and religious groups, as the regime wanted to present itself as the only defender of traditional Christian values. The role of social media and Internet trolls was to challenge democratic values, divide Europe, gather domestic support, and create the perception of failed states in the EU’s eastern neighbourhood. Moreover, Russia invested relevant financial resources in its disinformation and propaganda instruments engaged either directly by the state or through Kremlin-controlled companies and organisations. According to the Parliament, Russian strategic communication is part of a larger subversive campaign to weaken EU cooperation and the sovereignty, political independence, and territorial integrity of the Union and its Member States.[51] This confirms that the measures against the Russian propaganda were necessary, but they should have been taken even before 24th February, 2022, as it could be considered to be a propaganda for war and not one-sided reporting (Baade 2023, 273–275).
Combatting media propaganda is an appropriate measure, but not the only one that could be applied in the case of Russian aggression against Ukraine. At the moment, only the biggest pro-Russian TV channels are targeted and at the same time, propaganda is spread by minor actors, especially on the Internet and social media. In 2021, the European Union introduced the regulation 2021/784,[52] aimed at the dissemination of terrorist content online. On the basis of this regulation, service providers are obliged to remove or disable access to terrorist content online within one hour of receipt of a removal order from a competent national authority. A similar approach could be applied by the European Union with regards to the content encompassing Russian propaganda.
Economic restrictions imposed due to the Russian invasion on Ukraine strongly affected the EU trade with Russia. Imports fell from 9,6% in February 2022 to 1,7% in June 2023, whereas exports decreased from 3,8% to 1,4% in the same period (Eurostat 2023). The sanctions had thus their negative effect on the Russian economy. In time and combined with sanctions applied by other states,[53] they can decrease the Russian ability to finance its aggression and make them retract from Ukraine. At the time of writing this paper, Ukraine managed to regain control over some of its territories attacked by the Russian troops. Nevertheless, sanctions themselves are not linked to any particular conditions for their repeal, such as ceasefire or unconditional Russian withdrawal from the Ukrainian territory, which hampers the evaluation of their effectiveness (Shagina 2022, 6–7). Moreover, Russia is trying to circumvent restrictive measures by entering into a closer economic cooperation with states that do not apply sanctions, such as China, with the increase of Russian imports from China by 27%.[54]
Turning the attention to the EU’s sanctions against Russia due to its aggression on Ukraine, it can be concluded that the EU’s measures have an adequate legal basis both in international and EU law; they are necessary and proportionate. In the application of these sanctions, human rights are safeguarded by the scrutiny of the Court of Justice of the European Union, which elaborated a satisfactory standard of judicial review. The opposite suppositions are made only by Russian scholars (Voynikov 2022, S636–S642). The measures are not discriminatory and they safeguard the rights of the defence. Individuals are granted access to non-classified parts of the case-files, decisions on listing are reasoned, and the CJEU exercises full judicial review of the contested measures. Taking into consideration the threat that the Russian aggression causes for the European region, the applied sanctions are not disproportionate to the aim sought.
Measures targeting the Russian propaganda, namely the suspension of broadcasting licences of selected media outlets, do not violate freedom of expression. Propaganda, and especially war propaganda, is an abuse of freedom of expression and thus should not be protected.
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Shagina, Maria. 2022, “Sanctions against Russia: the West needs a grand strategy.” Hybric CoE Strategic Alanysis, May 19, 2022, https://www.hybridcoe.fi/publications/hybrid-coe-strategic-analysis-32-sanctions-against-russia-the-west-needs-a-grand-strategy/ (accessed: 23.11.2023).
Voynikov, V.V. 2022. “EU Anti-Russian Sanctions (Restrictive Measures): Compliance with International Law.” Herald of the Russian Academy of Sciences 92: S636–S642. https://doi.org/10.1134/S1019331622130111
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