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This press release can be downloaded as a PDF here.

President Yanukovych is no longer listed as a “wanted person” by Interpol, as can be easily checked by a search of the Interpol website identifying people who are “wanted” (http://www.interpol.int/notice/search/wanted). The Interpol Red Notice (an international request made by Interpol seeking the location and arrest of “wanted persons”) concerning President Yanukovych, which was published around 12 January 2015, has ceased to be in force. Further, Interpol member countries have been blocked by Interpol from access to data concerning President Yanukovych held by Interpol.

This action by Interpol follows an application to Interpol by Joseph Hage Aaronson LLP on behalf of President Yanukovych seeking his removal from the Interpol list of “wanted persons”, including on the basis that criminal charges brought by the new regime in Ukraine against President Yanukovych were part of a pattern of political persecution of him.

Interpol has found that elements available to Interpol of Ukraine’s case against President Yanukovych, upon which the Red Notice concerning President Yanukovych was based, raised concerns which necessitated a further in depth study by Interpol of that case.

In the light of those findings, around 16 July 2015, Interpol, amongst other things:

1. suspended the Red Notice;
2. removed the extract of the Red Notice, showing President Yanukovych as a “wanted person”, from the Interpol website; and
3. blocked access of Interpol member countries to Interpol data concerning President Yanukovych.

ENDS

Enquiries to: Joseph Hage Aaronson LLP, Tel: +44 (0)2078518888

This press release is also available in Russian. You can download it as a PDF in English and Russian.

President Yanukovych has lodged a claim with the European Court of Human Rights on the grounds that Ukraine has repeatedly breached his human rights.

His application asks the Court to declare violations of his rights under the European Convention on Human Rights, including the right to a fair trial (Article 6), the right to an effective investigation of attempts made upon his life and the right to protection (Article 2), and the right not to be discriminated against because of his political status and opinions (Article 14).
Joe Hage of Joseph Hage Aaronson LLP, President Yanukovych’s UK lawyer, who has issued the claim, says: “President Yanukovych has brought this action now because it is clear that the Ukrainian authorities are determined to bring prosecutions against him. They have allowed unfair trials to proceed which infringe his basic human right to be present and to defend himself against allegations which President Yanukovych vigorously denies.

1. President Yanukovych’s rights to an independent and impartial tribunal, to a fair hearing and to reasoned judgments have been breached. The Ukrainian courts are not independent from, or free from the influence of senior state officials, cannot be relied on to act impartially, and do not ensure fair hearings.A vivid example, among many, of a highly politicized court decision against President Yanukovych is the Pechersk Court decision allowing the special pre-trial investigation stage of a case against the President to be completed in his absence, and refusing to permit him even to participate by video link. This decision ignored the fact that there was no legal basis under the Ukraine law (which had been specially amended to pursue President Yanukovych), for allowing trial in the absence of the accused. No reasoned judgment was provided, and the Court completely ignored the fact that President Yanukovych was then and is currently not on an interstate wanted list or an international wanted list, since the Interpol Red Notice against President Yanukovych had been suspended. Ukrainian law does not permit an appeal against this decision.
2. President Yanukovych’s right to a presumption of innocence has been violated by the numerous public and condemnatory statements made by senior state officials and prosecutors. The statements are so broad and frequent as to undermine his presumption of innocence in relation to any criminal proceedings.
3. Ukraine has violated its duty to protect President Yanukovych, and its investigative and procedural duty under Article 2 ECHR because of the failure to carry out a proper investigation into the attempts on President Yanukovych’s life in February 2014. These breaches and the continuing threats against President Yanukovych mean that it is unsafe for President Yanukovych to return to Ukraine, and that he cannot attend the criminal proceedings in Ukraine properly to defend himself.
4. President Yanukovych has suffered discriminatory treatment due to his political status and opinions, including by the multiple unfounded criminal cases said to be being brought against him in Ukraine, the baseless decisions being made against him by the Ukraine authorities and the Ukraine Courts, and the repeated public condemnation by Ukraine’s public officials.

There is no doubt the Ukrainian prosecution authorities are under huge political pressure to secure convictions in relation to false criminal allegations, including those constructed to provide a basis for the EU sanctions listing against President Yanukovych.”

ENDS

Enquiries to: Joseph Hage Aaronson LLP, Tel: +44 (0)2078518888

This press release is also available in Russian. It can be downloaded as a PDF in English or Russian.

Oleksandr Yanukovych has lodged a claim with the European Court of Human Rights on the grounds that Ukraine has repeatedly breached his human rights.

His application asks the Court to declare violations of his rights under the European Convention of Human Rights including the right to peaceful enjoyment of property (Article 1, Protocol 1), his right to a fair trial (Article 6), and his right not to be discriminated against because of his status as the son of President Yanukovych (Article 14).
Joe Hage of Joseph Hage Aaronson LLP, Mr Yanukovych’s UK lawyer, who has issued the claim, said: “Oleksandr Yanukovych has brought this action now because it is clear that the Ukrainian authorities are intent on unlawfully depriving him of his shareholding in VBR on the basis of his sanctions listing without compensation.

1. 1. Oleksandr Yanukovych’s right to property has been violated by Ukraine’s de facto expropriation of his 100% shareholding in Vseurkainskyy Bank Rozvytku. In November 2014 the National Bank of Ukraine classified VBR as insolvent despite independent reports of its financial stability, with the result that it was taken out of his control and put into provisional administration. The NBU used the imposition of EU sanctions on Oleksandr Yanukovych as the justification for its actions, but without establishing that those sanctions adversely affected VBR’s solvency. Indeed the Head of the NBU told the Ukraine Parliament that there was no such risk of insolvency. NBU’s move was wholly political with no economic or legal basis. VBR is now to be sold to Ecosipan LLC, an independent third party, under a contract recognised by the Ukrainian courts. No compensation has been paid to Oleksandr Yanukovych, and there is no realistic prospect that any compensation will ever be voluntarily paid by Ukraine.
   2. Oleksandr Yanukovych’s right to an independent and impartial tribunal, to a fair hearing and to reasoned judgments has been breached. The Ukrainian courts are not independent from, or free from the influence of senior state officials and cannot be relied on to act impartially, and do not ensure fair hearings.
   3. Oleksandr Yanukovych’s right to a presumption of innocence has been violated by the numerous public and condemnatory statements made by state officials and prosecutors. Such statements are so broad as to undermine his presumption of innocence in relation to any criminal proceedings.
   4. Oleksandr Yanukovych has been discriminated against because of his status as the son of President Yanukovych, a political opponent of the current Ukrainian government. This is evident from, in particular, the NBU’s decision to expropriate his shareholding in VBR on the false grounds of risk of insolvency, the unfounded criminal proceedings brought against him and the repeated condemnatory statements that have been made by Ukraine’s public officials.

There is also no doubt that Ukrainian prosecution authorities are under huge political pressure to secure convictions and to confiscate the property of Oleksandr Yanukovych without regard to basic human rights, such as the right to a fair trial or even the need to obtain criminal convictions, as is proposed in the current draft special confiscation law being considered by the Ukraine Parliament.”

ENDS

Enquiries to: Joseph Hage Aaronson LLP, Tel: +44 (0)2078518888

You can download this press release as a PDF in English or Russian.

On 5 June 2015, the European Union took the long overdue step of removing sanctions on our client Viktor Viktorovych Yanukovych, younger son of Ukrainian president, Viktor Fedorovych Yanukovych. No reason was given by the Council for his delisting.*

Despite a lack of any credible evidence against him, Viktor Viktorovych Yanukovych (“Mr Yanukovych”) was originally targeted during the imposition of far-reaching sanctions by the EU in March 2014. Since that time, the EU has repeatedly failed to justify his inclusion. Independent observers have speculated that the sanctions were imposed in haste and that they had remained in place so long because European Union officials had been reluctant to admit error.**

It might look like backing away from the unjust imposition of sanctions has been made easier by the tragic death of Mr Yanukovych in March this year although very often sanctions remain in place against the estate of a deceased target for years after their death.***

This would appear to be particularly relevant in the case of Ukraine given that a primary asserted purpose of these EU sanctions is the freezing and recovery of assets allegedly misappropriated. Any genuine need for such freezing and recovery would remain whether the targeted individual was alive or not.

An in-depth analysis of the conduct of the EU Council underlines its own lack of confidence in any justification for the sanctions against Mr Yanukovych. For example, the Council twice amended the reasoning for his listing, first on 29 January 2015 and again on 5 March 2015. However, even under the amended reasoning, the Council was then prepared to renew its sanctions against Mr Yanukovych for only three months, and not the normal period of one year. As observers have noted,**** this short extension was granted in an unsuccessful effort to get the regime in Ukraine to provide evidence and justification for Mr Yanukovych’s listing.

Prior to his death Mr Yanukovych had applied to the European Courts to challenge the Council’s decision to impose sanctions against him. His estate intends to continue that claim, even after his delisting, in order to establish that he should never have been included. Mr Yanukovych’s estate also intends to bring a claim for damages against the Council in respect of the serious breach by the Council of the rule of law in the wrongful imposition of sanctions against him.

Mr Yanukovych’s estate wants all documents relating to the imposition of sanctions against Mr Yanukovych, and to Mr Yanukovych’s challenges before the European Courts, to be made public, so that the public can come to its own conclusions about the reasons for his listing and delisting, and the unfair process to which he was subjected. Action on behalf of Mr Yanukovych’s estate seeking such public access will be started shortly.

* The Council of the European Union adopted Council Decision (CFSP) 2015/876 and Council Implementing Regulation (EU) 2015/869. These instruments removed our client Viktor Viktorovych Yanukovych from the list of Ukrainians made subject to EU sanctions since March 2014. The exact wording of the Regulation delisting Viktor Viktorovych Yanukovych is:

“The person listed below is deleted from the list set out in Annex I to Regulation (EU) No 208/2014 as of 6 June 2015:

Entry No 8 — Viktor Viktorovych Yanukovych (Віктор Вікторович Янукович) (son of former President)”.

** e.g. http://www.wsj.com/articles/eu-set-to-scale-back-sanctions-against-former-ukraine-presidents-inner-circle-1424174482; http://www.wsj.com/articles/eu-faces-legal-worries-over-ukraine-corruption-sanctions-1418305869

*** For example, three sons of Muammar Qadhafi then subject to the EU’s Libyan sanctions regime, Mutassim Qadhafi, Khamis Muammar Qadhafi and Saif al-Arab Qadhafi, lost their lives during the course of 2011. Not only has the Council nonetheless renewed sanctions against these deceased individuals in May 2015, it has even recognised their deaths on the face of the instruments that did so.

**** See footnote 2 above.

ENDS

Enquiries to: Joseph Hage Aaronson LLP, Tel: +44 (0)2078518888

You can download this press release as a PDF in English or Russian.

There have been press reports in Ukrainian media concerning the progress of the cases brought by President Yanukovych and his sons seeking annulment of the sanctions imposed by the EU against them. Some of these reports are said to be based on statements made by a supposed “spokesperson” of the Court of Justice of the European Union.*

Such reports assert that according to the spokesperson it was not correct for V.F. Yanukovych and his sons to have made their applications in the English language as opposed to the French language, and that this had hampered their cases. If, which it is hoped and anticipated is not the case, there was any such statement made by a Court spokesperson, it was wrong and should never have been made.

Not only is it inappropriate for a Court spokesperson to comment on pending cases, but the Court does not in any way discriminate against, or treat less expeditiously, cases in which the English (or any other permitted) language is the language of the case, and it would be wrong in principle if it did so. Article 35 of the then applicable Rules of Procedure expressly permits any one of a number of European languages (including English and French) to be chosen by the applicant as the language of the case, and the Court is very familiar with, and well able to conduct, cases in other permitted languages just as expeditiously as those in the French language.

This is just one more example of inaccurate press reporting in Ukraine which purports to be based on leaks from European Institutions, and which contributes to a false picture as to the content and course of the annulment applications of V.F.Yanukovych and his sons. In order to seek to correct this false picture, and to enable the public to see what is actually happening in the cases, the law firm Joseph Hage Aaronson had already, before this last incident, written on behalf of President Yanukovych and his sons to the Council of the European Union and other relevant recipients requesting their consent (prior to an application to the Court) to the public being given access to the files of their annulment applications, including access to all written pleadings of the parties and the orders of the Court. The Council and other relevant parties have not yet even replied to this request.

* e.g. Суд ЄС досі не призначив розгляд справи Януковича, який помилився мовою

Joseph Hage Aaronson is the only firm to achieve the top tier ranking in Band 1 for UK Contentious Tax by Chambers and Partners for 2018. It is also the 4th consecutive year that our team and individual lawyers have been named. The contentious tax team is led by five partners: Graham Aaronson QC, the leading tax silk of his generation, Simon Whitehead, Paul Farmer, Michael Anderson and Ray McCann. All are supported by a strong team of in-house barristers, solicitors and paralegals, bringing together the best qualities of the bar with those of a law firm to deliver a cohesive approach to advising and representing our clients throughout all stages of a dispute.

Ranked Lawyers:

Graham Aaronson QC is a renowned tax expert who acts for significant clients and organisations in high-profile disputes. Clients say he has “very significant depth and breadth of experience, and is always highly responsive.”

The “superb” Paul Farmer is experienced in acting in high-value tax cases. Sources note he is “extremely good at handling litigation.”

Simon Whitehead regularly advises clients on contentious tax matters, with a focus on corporation tax. Sources state he has “excellent technical knowledge and provides superb client service.”

Michael Anderson specialises in advising clients on complex and high-profile tax disputes. One client states he is “highly credible, and it is easy to develop an effective working style with him because he is very approachable and responsive.”

Philippe Freund is an accomplished tax lawyer experienced in working with clients in the financial sector. Sources note he is “technically very able, helpful and willing to make himself available at short notice to assist with queries and to provide support.”

View further commentary from the Chambers UK guide

Article originally published in Lexis®PSL

Arbitration analysis: The ever-growing use of technology in the practice of law continues apace. From the early days of word processing, bulk photocopying and faxes, through to email, video conferencing and webinars, to today’s world of big data and artificial intelligence (AI), practitioners’ day-to-day working lives have changed. But what does this mean for international arbitration? Richard Kiddell, partner at Joseph Hage Aaronson, provides his views on the topic.

Continue reading on Lexis®PSL (subscription required) or access the complete article in PDF format.

Possible Presage to ECJ Final Judgments in Apple, Starbucks, Amazon and Fiat Cases

Yesterday, the ECJ held that the General Court erred in law in concluding that a state measure granted to Spanish companies was not selective because the Commission had not identified a particular category of undertakings exclusively favoured by the tax measure concerned.

This judgment is supportive of the Commission’s arguments in the pending Apple, Starbucks, Amazon and Fiat cases and a first indicator of what the ECJ might ultimately decide. In these four cases, the Commission adopts a broad approach towards the reference tax system, which is deemed to be the general corporate income tax system of the respective Member States.

If the ECJ follows the same logic in the pending cases and the measures offered to Apple, Starbucks, Amazon and Fiat are found to derogate from the reference tax regime and to apply a different treatment to companies that are in comparable situations, then the Court could conclude that the measures are selective. This would appear to be the case even if the state measure is in principle open to all companies.

Please click here for the CJEU press release, here for the Commission press release and here for the CJEU judgment.

EU law principles are not limited to the EU/EEA

On 21 September 2016, the Court of Justice of the European Union (CJEU) found that the Agreement between the EU and Switzerland on the free movement of persons precludes legislation that denies a tax exemption for German teachers working in Switzerland.

One of the many agreements signed between Switzerland and the EU provides for free movement of persons on the basis of the rules applying in the European Community. Under German law, income from part-time activities as a lecturer carried out for a public establishment established in an EU/EEA Member State is exempt from tax up to a certain amount. Mr Radgen, a German national and resident, taught on a part-time basis at an establishment governed by public law in Switzerland. The activity was carried out under an employment contract between him and that establishment. The German tax authorities refused to apply the exemption on the ground that it did not apply in the Swiss context, as Switzerland is outside the EU and EEA. The CJEU, however, found that the difference in treatment was liable to deter resident German taxpayers from exercising their right to free movement by taking up employment in Switzerland and that German teachers in Switzerland were in a comparable situation to German teachers in Germany.

This case shows that EU law principles (in addition to the free movement of capital) are not constrained solely to the EU/EEA.

This article appears in the JHA October 2016 Tax Newsletter, which also features:
You can download the complete newsletter as a PDF here: October 2016 – Tax Newsletter.

1. Judgment in Six Continents v HMRC [2016] EWHC 2426 (Ch) by Christopher Kientzler
2. Etablissements Fr. Colruyt Case C- 221/15