Guest editorial eucrim 2-2022

Dear Readers,

The EU’s restrictive measures (commonly referred to as “sanctions”) are neither new nor is Russia the only country subject to them, but the current regime against Russia is certainly unprecedented in its breadth. The EU is also in unchartered waters concerning the seriousness of the context. This also applies to our determination to coordinate and enforce these sanctions, and in turn requires us to address questions pertaining to their objectives and ambition.

In the EU, sanctions are implemented by Member States. However, the European Commission is ideally placed to coordinate their actions, connect the dots, and bridge any possible gaps. Commission President Ursula von der Leyen tasked me with setting up a dedicated Task Force (known as “Freeze and Seize”) to bring together Member States and EU agencies, including Eurojust and Europol, with Commission experts under four subgroups: 1. asset freezes and reporting; 2. exchange of best practices on criminal investigations and confiscation; 3. possible establishment of a Common Fund for the benefit of Ukraine; 4. tax enforcement.

This is unparalleled in the history of the EU and the coordination effort is already paying off. At the time of writing, more than €14 billion worth of assets have been frozen in the EU. This comes on top of the work the Commission is carrying out globally with the United States and the G7 countries in the Russian Elites, Proxies and Oligarchs (REPO) Task Force. The REPO has blocked or frozen more than $30 billion worth of assets and around $300 billion of Russian Central Bank assets. This consolidated effort makes it more difficult for Russia to procure the technology necessary to sustain its unjust war in Ukraine.

There is an urgent need to end impunity for the violation (or avoidance) of sanctions and also a desire to move from freezing assets to confiscating them. To confiscate, one must establish a link between assets and criminal activities. Not all Member States tackle violations of sanctions under their criminal law, however, if they do, definitions and penalties vary. To resolve this, the Commission has proposed adding the violation of Union restrictive measures to the list of EU crimes in Article 83(1) TFEU. This will allow the Commission to put forward a Directive harmonising criminal definitions and penalties for violation of restrictive measures.

There is so much at stake and the Ukrainian people will need every bit of financial help they can get when the time comes to rebuild the country. My objective is for the assets confiscated following criminal proceedings to be put into a fund that can be used to support the Ukrainian people. The agreement signed in March 2022 between the European Public Prosecutor’s Office and the Ukrainian Prosecutor General already sent a positive signal and underlines the determination of the Ukrainian prosecution service to continue to work under siege to protect the financial interests of the EU and Ukraine.

Coordination always pays off. This is also true for the investigation of war crimes. There are currently over 25,000 reports of war crimes in Ukraine. In addition to the Ukrainian prosecution service, 14 EU Member States as well as the International Criminal Court (ICC) are investigating such cases. At the end of March 2022, two EU Member States (Lithuania and Poland) and Ukraine, with the support of Eurojust, established a Joint Investigation Team (JIT) to coordinate their investigations. Three more EU Member States have joined since April. It is noteworthy that this is the first time the ICC is participating in a JIT. The scope of Eurojust’s mandate has also been expanded, so that it can analyse and store evidence securely and outside the Ukrainian war zone.

Besides ensuring that no sanction is breached, the Commission also aims to ensure that no crime is left unpunished. We recently organised a conference with the ICC and the Dutch Government to discuss how to ensure accountability for war crimes and coordinate international efforts to bring the perpetrators of war crimes to justice.

Never has there been a clearer need for cooperation. As the EU’s Member States and allies are united in their horror towards Russia’s illegal aggression against a sovereign country, so too must we be in our response.