Boris Rotenberg vs Finnish bankers

Boris Rotenberg is trying on the strength of the Finnish judicial system, demanding to strike a balance between so respected human rights in Europe and the fear of banks to violate the US sanctions regime. What could be the result of a lawsuit?
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The first hundred Russian Forbes can not boast of high-profile lawsuits. And those that are most often associated with sanctions. After the recent announcement of a world Valentine Valentin Gapontsev with the US Treasury, the main thing on the other side of the Atlantic is Oleg Deripaska’s challenge of his being under sanctions. In Europe, the eyes are drawn to the small state of Finland, where Boris Rotenberg is trying on the strength of the judicial system of this quiet country and demanding a compromise between the human rights so respected in Europe and the fear of banks to violate the US sanctions regime.

At the same time, Boris Rotenberg is not even under the sanctions of this country and EU restrictions. The younger brother of Arkady Rotenberg F 41 can be understood. And as a citizen of Finland, and as a consumer of financial services. Especially from the Russian point of view: the Civil Code of the Russian Federation does not give banks the right to unilaterally close an account or refuse to conduct operations due to the requirements of American law.

But you can understand the defendants in his case. All Western banks have well learned the lesson of the French bank BNP Paribas, fined by the US authorities $ 8.9 billion for servicing sanctioned persons from a number of jurisdictions.

The Rotenberg brothers were among the first to be included in the “Russian” US sanctions list. March 20, 2014 they were included in the toughest sanctions list along with other members of the "inner circle" of the President of Russia. According to the US Ministry of Finance, it is the “inner circle” that acts as the main beneficiary of the annexation of Crimea, and it is precisely its constituents that have wise the Russian leader to such a step.

OFAC cited the following motivation for listing the brothers: “Arkady Rotenberg and Boris Rotenberg supported Putin’s favorite projects, receiving expensive contracts for the Olympic Games in Sochi and from state-controlled Gazprom and fulfilling them. They earned billions of dollars on Gazprom contracts and the Sochi Winter Olympics given to them by Putin. Over the years of Putin’s rule in Russia, both brothers have accumulated an excessive amount of wealth. The Rotenberg brothers received contracts for the Olympic Games in Sochi by approximately $ 7 billion, and their personal fortune over the past two years has grown by $ 2.5 billion. "
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.