Sanctions Against Russian Oligarchs: A Case for Due Process and Legal Scrutiny

Recently, the question of whether sanctions against Russian oligarchs fall under the category of a bill of attainder has been brought to the forefront. While many hold the stance that they do not, exploring this issue in detail reveals several complexities and considerations that need to be addressed.

Sanctions vs. Bill of Attainder: A Technical Perspective

Technical arguments support the stance that sanctions are not bills of attainder. First and foremost, the sanctions are not accusing the Russian Oligarchs of a crime. They are merely measures that apply economic restrictions until specific conditions, such as the cessation of Russia’s war on Ukraine, are met. (A)

The application of sanctions is an example of what could be considered "trading with the enemy" legislation, adapted to the modern global stage. Historically, such measures were used to incentivize or penalize actions during times of conflict. (B)

Due Process Concerns

While the technical answer is sound, it does not fully address the broader implications. The sanctions process raises critical questions about the amount of due process that individuals have before being subjected to such measures. (C) For instance, my client, sanctioned after the Egyptian military coup, despite being on the opposite side, illustrates how the decision-making process can be arbitrary. (C')

Typically, sanctions are applied without a formal court hearing or the opportunity for legal representation. This can lead to situations where innocent or misidentified individuals are targeted, with little recourse for redress. (C')

During my client’s case, the UK Foreign and Commonwealth Office (FCO) simply applied sanctions to anyone deemed rich and from Egypt, without a thorough investigation. Although we managed to get my client off the list after an extended period, the fact remains that once sanctioned, it is exceptionally difficult to remove oneself from these restrictions. (C')

Furthermore, the Rules of Ancillary Procedure or similar measures to protect individuals from arbitrary sanctions appear to be non-existent. This lack of a legal framework not only undermines the principles of due process but also the rule of law. (C')

The Current National Sentiment

It is essential to acknowledge the current national sentiment, which heavily favors punitive actions against Russian individuals. The phrase "the only good Russian is a dead Russian" reflects the broader public opinion. However, it is crucial to maintain a long-term perspective and ensure that we do not abandon the fundamental Western ideals of justice and due process. (C)

While these sentiments are understandable given the ongoing crisis, it is imperative to question the process used to select targets. As the crisis abates, we must revisit this issue to ensure that the sanctions process is transparent and respects the legal rights of individuals. (C)

Conclusion

While sanctions against Russian oligarchs are not bills of attainder per se, they raise significant concerns regarding due process and judicial fairness. It is crucial to address these issues to uphold the values of Western democracy and the rule of law. As we move forward, we must ensure that the sanctions process is transparent, fair, and rooted in solid legal foundations.