The French police dropped all charges against Suleiman Kerimov – now he can return to Russia. However, this is unlikely to convince the United States to remove the billionaire from the sanctions list
On June 28, two “sanctions” events took place in the world. If the first of them had a wide resonance in our country, the second one remained virtually unnoticed. The first was the lifting of charges against Suleiman Kerimov by the French police28 . According to people close to the billionaire and the senator, this will also help him to free himself from the American sanctions imposed in April.
The second news item was the publication of sanctions regulations on the so-called “Magnitsky Act” which allows for the application of American sanctions to people (officials and their relatives) involved in corruption or human rights violations. Based on the norms of this law, last December Donald Trump declared a U.S. state of emergency in connection with foreign corruption and instructed subordinate authorities to combat it through sanctions. However, exactly how to apply the law was not clear before. This can be confirmed by the fact that only 15 individuals have fallen under U.S. sanctions on the grounds of the Magnitsky Act, and only the oldest son of the Russian prosecutor general was among the Russian citizens. Now, the list, code-named GLOMAG (Global Magnitsky), will be updated much more frequently.
Suleiman Kerimov came under U.S. sanctions on April 6, 2018. The expansion of the “Russian” sanctions list was then accompanied by this explanation from the U.S. Treasury Department: “today’s action is aimed at a number of individuals … including those who benefit from Putin’s regime and play a key role in advancing Russia’s malevolent actions.” According to a U.S. Treasury press release, “Suleiman Kerimov is included [on the sanctions list] because he is an official of the Russian Federation. Kerimov is a member of the Federation Council.” Reference was also made to Kerimov’s detention by French police on November 20, 2017, and subsequent charges of failing to pay €400 million in taxes related to the purchase of villas in Nice. It was also mentioned that Kerimov may have brought with him suitcases full of cash during his visits to France.
Both chambers of the Russian parliament criticized the actions of the French siloviki, pointing out that Kerimov has diplomatic immunity and, therefore, that his arrest violated the Vienna Convention on Diplomatic Relations.
At the time of Kerimov’s detention, the U.S. Treasury’s Office of Foreign Assets Control (OFAC) was compiling a report on Russia’s top officials, oligarchs and state-owned enterprises for a congressional special committee. The final list was released on January 29, 2018, was called the “Kremlin list” and was essentially a Russian version of Forbes’ 2017 ranking of dollar billionaires. OFAC had a separate file for each person whose name was on the “Kremlin list. The OFAC’s main tool for obtaining information is the Internet, and all the news about Kerimov’s detention in France came just in time.
Will Kerimov, who has been acquitted of all charges in France, be able to leave the American sanction list now? First of all, it should be understood that the press release of the US Treasury saying that Kerimov had problems with French law cannot be a basis for a challenge. In other words, everything it said about the suitcases of money (which, it turns out, Kerimov did not take anywhere) can be forgotten.
The real reason for the U.S. sanctions is always the OFAC’s determination that the person in question meets the formal grounds from the relevant statute. If you look again carefully at the April sanctions list, you will find a reference to that act in the paragraph devoted to each of the Russians on it. It is hidden in square brackets, and in Kerimov’s case it refers to Barack Obama’s executive order of March 16, 2014 (UKRAINE-EO13661), by which the then president extended a state of emergency in the United States due to the actions and policies of the Russian government in Ukraine. Article 1 of this executive order allows U.S. authorities to impose sanctions on any senior Russian official or “person who is owned, controlled, or acting on behalf of or in the interest of the Government of the Russian Federation.
If we go back to the folder on Kerimov at OFAC, we can assume that it contains:
- documents confirming his status as a top official (senator) in Russia;
- materials confirming the size of his fortune;
- articles in the media highlighting his proximity to Russia’s ruling elite or photos taken with the Russian president;
- articles about detention in France in connection with alleged money laundering.
As far back as 1999, the U.S. Court of Appeals allowed administrations to add individuals to the sanctions list based on a broad list of sources, which included media, Internet and even rumors, so OFAC is not required to have official documents from foreign authorities.
Kerimov, as a person on the sanctions list, has the opportunity within six years to apply to OFAC for an administrative review of his presence on it. For such an application to be successful, it must be convincingly demonstrated that, whatever the reasons and grounds for inclusion may have been, they are no longer true or were inherently untrue. OFAC has learned very well the lessons of the few jurisprudence on the category of cases on exclusion from the sanctions lists, from which we can conclude that a person is not just placed under sanctions, but only when there are materials in the file that support such a decision and the head of the US Department of Treasury will make such a decision.
Thus, even if the articles on the fourth point (about Kerimov’s detention) have lost their weight and the inclusion in the sanctions list with such motivation is no longer true, at least three grounds for Kerimov to be sanctioned remain in place. So the senator’s chances of being removed from the sanctions list will become more real after he leaves the upper house of the Russian parliament.