1.- As a result of the conflict in Ukraine, the international community has imposed restrictive measures against those persons, entities or organisations contributing to the destabilisation of territorial integrity, sovereignty and independence in Ukraine.
2.- By decision of the Federal Council, Switzerland joined the sanctions packages imposed by the European Union at the end of February 2022, announcing further measures. The Swiss government had imposed travel restrictions on sanctioned Russians and banned Swiss banks from doing future financial business with these individuals and entities. Restrictions were also imposed on the export and import of goods and services.
3.- According to a report by the Swiss State Secretariat for Economic Affairs[1] (hereinafter SECO), financial assets in the country worth CHF 7.5 billion have been frozen under sanctions imposed on those sanctioned for the invasion of Ukraine.
4.- Pursuant to this SECO report, all funds and economic resources owned or controlled directly or indirectly by the persons, undertakings and organisations listed in Annex 8 to the Ordinance[2] on measures in relation to the situation in Ukraine are frozen and must be notified to the SECO without possibility of disposal.
5.- Apart from these measures, the option was raised of confiscating these frozen assets as a result of the sanctions imposed in order to pay for the reconstruction of Ukraine.
6.- In relation to the seizure of property, the Swiss government set up a working body to discuss the issue. After having analysed the possibility of confiscating frozen assets of those sanctioned by the situation in Ukraine for the reconstruction of Ukraine, they established that the expropriation of private property of lawful origin without compensation was not permitted under Swiss law.
7.- In particular, the Working Group[3] concluded that the expropriation of private property of lawful origin without compensation is not permitted under Swiss law. They consider that the confiscation of frozen private property is incompatible with the Federal Constitution and the existing legal order and violates Switzerland’s international commitments.
8.- Furthermore, according to statements by the Swiss Ministry of Justice, “The confiscation of frozen private assets is incompatible with the Federal Constitution and the existing legal order and violates Switzerland’s international commitments“. Likewise, the Swiss Bankers Association (SBA) has also argued against confiscation, “There is no legal basis for confiscation nowadays“.
9.- In contrast to Switzerland, Canada has favoured the seizure of Russian assets frozen as a result of sanctions. Canada was the first Western country to legislate the possibility of seizing sanctioned Russian assets for the reconstruction of Ukraine. The Canadian Senate passed the relevant amendments to the Special Economic Measures Act on 23 June 2022. The Bill[4] provides not only for the seizure of assets, but for a sufficiently balanced procedure involving both the executive and the judiciary.
10.- After seizure, the funds, according to the Canadian bill, may be used for the reconstruction of the foreign state harmed by a serious breach of international peace and security, the restoration of international peace and security, or to compensate the victims when that security is breached and their rights are violated.
11.- In December 2022, the Canadian Foreign Minister announced that Canada will, for the first time, seize and seek forfeiture of $26 million from Granite Capital Holdings Ltd., a company owned by Roman Abramovich, a Russian oligarch sanctioned under the Special Economic Measures Act (Russia)[5].
12.- This is the first time Canada has made use of its new powers allowing the government to pursue the seizure of assets belonging to sanctioned individuals. This means that the Department of Foreign Affairs will now consider making a court application to forfeit the assets permanently to the Crown for the purpose of reconstruction in Ukraine and compensation for victims of the conflict in Ukraine.
13.- In relation to the procedure that the Canadian government will have to follow in order to seize these assets, it will have to apply to a court in the jurisdiction in which the money is located, most likely the Ontario Superior Court. Government lawyers will then have to prove to the judge which funds belong to Abramovich, in order to get the court to forfeit the money to the Crown. The move may be challenged by Abramovich’s legal representation on the grounds that it violates rights under the Universal Declaration of Human Rights.
14.- In the United States, according to statements by the US Treasury Secretary Janet Yellen on 27 February, legal obstacles to seizing Russian assets to rebuild Ukraine persist.
15.- In the EU, the leaders of the institutions have called for a study and analysis of existing legal mechanisms for using Russian wealth for Ukraine’s reconstruction, although they recognise that the idea would be incompatible with international law.
16.- Finally, it is worth highlighting the recent package of sanctions against Russia published by the European Union on 25 February. The measures adopted include the extension to new banks of exemptions from the asset freeze. Likewise, new clarifications have been introduced on the duty of information and cooperation imposed on any natural or legal person, whereby any subject is generally obliged, while respecting confidentiality and professional secrecy, to provide detailed information on such goods and assets to the competent national authorities. The measures adopted also extend restrictions of a commercial nature against Russia. In addition, more than 90 entities are added to the list of companies supporting the military industrial complex, as well as 87 natural persons and 34 other entities to the lists of subjects sanctioned with the freezing of their assets.
[1] Ukraine: Deposits declared and assets frozen in Switzerland, https://www.seco.admin.ch/seco/en/home/seco/nsb-news.msg-id-91994.html
[2] Order of 4 March 2022 imposing measures in relation to the situation in Ukraine, SECO: RS 946.231.176.72 – Ordonnance du 4 mars 2022 instituant des mesures en lien avec la situation en Ukraine (admin.ch)
[3] The Federal Council has received legal clarifications on the frozen Russian assets: Federal Council has received legal clarifications on frozen Russian assets (admin.ch)
[4] Bill S – 27, An Act respecting the reuse of certain seized, frozen or sequestrated property, Senate of Canada, Bill S – 27, An Act respecting the repurposing of certain seized, frozen or sequestrated assets | Projet de loi S-217 441 Loi sur la réaffectation de certains biens saisisis, bloqués ou mis sous séquestre, Senate of Canada, Bill S-217 441 (publications.gc.ca)
[5] Special Economic Measures (Russia), Canadian Department of Justice, SOR-2014-58.pdf (justice.gc.ca)
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