Ukraine has introduced sanctions against many individuals and companies, however, the online media was only outraged with the blocking of Vkontakte and Odnoklassniki networks. The voices of those who cannot imagine their lives without 1C fade in comparison to the discussion. The society has divided into those who are smart and those who are beautiful. However, there are also lawyers who care about the rules of the game. Below are 10 reasons why there is something wrong here:
1. Nobody has to do anything. The decision of the National Security Council is advisory for business. Only state authorities and local governance bodies are required to comply. Remember how “no one shall follow an unlawful order or instruction”? It also applies here. However, the state has instruments of pressure against the business developed throughout the years, including searches, interrogations, inspections… It is simply cheaper to comply.
2. Hurt your own so others will fear you. Sanctions against Ukrainian citizens can be imposed only after their guilt in involvement in terrorist acts is established in court. Until then, sanctions are illegal. Seizure of assets of Ukrainian citizens is also possible only following a reasonable court decision, even if these assets are linked to Russia and include Russian capital. Until now, article 13(4) of the Constitution has guaranteed protection from discrimination for businesses. Notably, even the high ranks of power decided not to get involved with, for instance, the so-called Pecherskyi international court.
3. Ban the Internet. The decision and the Presidential decree mention termination of services providing access to certain resources, not their blocking. Any internet provider (not an operator!) has the right to say, ‘We provide access to the Internet, and it’s none of our business what users search there’. There is a right, but you will have an opportunity to say that only if you’re not vulnerable in Ukraine, i.e. your servers are external, your staff are legally employed and loyal etc. Again, we repeat that your legal stance is flawless but you need to be able to defend it under the circumstances in Ukraine. Before, there have been charges of funding terrorism; now there will be accusations that access was not blocked in time.
4. Let’s eat grandma. What was banned after all? In practice, sanctions targeted not Yandex, Vkontakte, Odnoklassniki and Mail.ru but Ukrainian users’ access to their content. However, to impose the sanctions properly, you need a court to declare each user a terrorist. Access to websites includes the right to collect, store and disseminate information. Article 34 of the Constitution of Ukraine establishes the right to collect, store and disseminate information, guarantees the freedom of speech and expression of opinion and beliefs. Only the law can restrict these rights, not the decision of the National security and defense council.
5. Acting outside the scope of its authority. The decision is based on the Law of Ukraine ‘On Sanction’, which is partially unconstitutional. However, this aspect does not stand in the way of adopting questionable documents. For instance, the text includes an entry ban for a Ukrainian citizen Elena Belozerova while article 25 of the Constitution states ‘No citizen of Ukraine shall be exiled from Ukraine’. The Constitution remains the fundamental law of Ukraine unlike the Law ‘On Sanctions’. According to the Constitution, the President and the National security and defense council do not have the authority to impose restrictions on legal capacity of legal entities and individuals. At the same time, a similar provision is included in article 5 of the Law ‘On Sanctions’ which contradicts articles 106–107 of the Constitution. There is an exhaustive list of their powers provided in the Constitution. It cannot be amended by ad hoc laws.
6. Why? According to the law on sanctions, liability in the form of sanctions is imposed on legal entities and individuals based on their guilt. However, there is neither indication of charges next to most of the names and last names, nor evidence.
7. No strings attached. Suspension of economic and financial obligations looks like carte blanche for the chosen. There is a separate legal documents regulating this field — the Commercial Code which is still valid. Article 526 of the Code explains how existing obligations should be fulfilled. It has terms like ‘proper fulfillment’ and ‘customs of business transactions’. There is no custom to deny obligations because you no longer like the counterparty. Article 614(3) of the Commercial Code reminds us that the ‘transaction’ which revokes or restricts liability for willful failure to fulfil obligations is null.
8. Ban on business activities. According to article 12 of the Commercial Code, restrictions and bans on business activities for Ukrainian companies are possible on the grounds stated in the Constitution of Ukraine and the laws of Ukraine. Again, a decision of the National Security and Defense Council does not fit here. According to the decision and the order, banned activities of Ukrainian companies registered in accordance with the procedure.
9. Investment collapse. Investors in Ukraine are already not familiar with the feeling of security, but now they are also feeling slight shivers. I am talking about the sanctions in the form of ‘preventing transfer of assets abroad’. The wording itself is not legal but everyone understands that it is article 19(2) of the Law of Ukraine ‘On Investment Activities’ has so far been protecting investors’ actions by stating ‘Investments cannot be nationalized, confiscated or subjected to other measures with similar consequences at no cost’.
10. Illegal armed groups became legal entities. At least, this is a conclusion from the fact that the list of sanctioned legal entities includes different battalions — Oplot, Smert, Zaria, Somali and others. At this writing, battalions were not legal entities in accordance with the register. Inclusion into this list of sanctions creates a dangerous impression that they are legalized and made equal with other military groups.
This decision and order serve as an example of paternalistic approach to problem solving. The state decided to restrict access for those who are not able to filter the content they consume. And for all other people as well. I understand the outcry of those who keep everything in Vkontakte because ‘everyone is there’. The only difference between me and them is that I chose Facebook. I created a Facebook profile for my son in 2012. First, I thought it was fun and, second, it is a story of events and a family album. I sense certain violations of the right to property caused by the blocking. At the very minimum, it concerns one of the components — the right to dispose of one’s property. According to article 41 of the Constitution, no one shall be unlawfully deprived of the right for property. The expropriation is only permitted with subsequent complete compensation of the property value and on the grounds of public necessity under conditions of martial law or a state of emergency. These are not just words — they are terms used in the law. We do not have martial law or state of emergency. Those who choose to challenge this decision and order have high chances of winning.