The sanctions applied can be called classic: restriction of movement and economic rights. Of the first - a ban on entering the United States, a visa denial or cancellation thereof, if issued. Of the second, a ban on all American individuals and international companies with American participation in making any transactions and operations with assets of the person involved (the so-called freezing), a ban on the provision of services, etc. Moreover, Boris did not fall under European sanctions, but his own sanctions policy Finland as a member of the EU does not. Moreover, all European acts on restrictive measures, for example, the first EU Council Decision No. 145, contain an exception directly in the second article: an EU member state may not apply sanctions to its own citizens.
In February this year, the Helsinki District Court already denied Boris a lawsuit against Nordea, Danske Bank and Osuuspankki. Now Boris has filed a lawsuit against four banks. According to the Finnish media, he demands to oblige Handelsbanken to accept his payments, and Nordea, OP and Danske Bank to carry out operations on his payment orders. However, Finnish law does not oblige banks to provide the plaintiff with the above services.
Rotenberg’s fight with Finnish banks is of undoubted interest. In support of their position, Rotenberg's lawyers asked OFAC and received a curious answer: “With regard to secondary sanctions, if the activity is carried out outside the United States and does not affect the American people or the American financial system and is designed to meet the basic vital needs of the person, such activity is unlikely may be considered as material support for a person from SDN. ” But banks also made similar requests, after which the agency Andrei Gatsky had to withdraw his answer.
This will determine the defeat of the Russian-Finnish citizen in court. Banks are not required to provide services to him. In the event of such disputes, professional market participants urge the concept of economic viability to help, proving the prevention of more harm in the form of the bank ceasing to exist as an economic unit, by causing less harm in the form of denial of services to a rich person. European judges will have to resort to the doctrine of the balance of interests of the parties and through its prism to resolve the dispute. And since the plaintiff is a resident of Monaco, it is easy to assume in whose favor the second decision of the Finnish court will be.
Moreover, as reported by Fontanka, the court refused to seek an opinion from the National Tribunal for Discrimination and Equality of Finland. The main argument of the plaintiff is that banks should observe the principle of equality, and the tribunal should, in his opinion, establish the fact of discrimination against a citizen. But with this, he only created a reserve for appeal.
There is no doubt that Boris Rotenberg will test the strength of all three instances of Finnish justice, and subsequently apply to the ECHR.
In the practice of the ECHR, there are at least two cases when, despite the importance of complying with UN sanctions, the court found European states to violate human rights. In the case of Youssef Nada v. Switzerland, the prohibition of a person involved in the UN consolidated sanctions list to move between a small Italian exclave and the main territory of Italy through Switzerland is recognized as violating the right to respect for private and family life. In the case of Calaf Dulimi, also a member of the UN sanctions list, the ECHR found the confiscation of the applicant’s funds by the Swiss authorities in favor of the Iraq Development Fund and the refusal of judicial protection from such actions by the authorities violated the applicant’s right to a fair trial.
The Russian oligarch, if desired, can develop the concept of violation by the authorities of European countries of fundamental rights. However, it should be noted that, as a result of the trial, Youssef Nada received € 30,000 in compensation, and Calaf Dulimi, in addition to moral satisfaction, received nothing.