Netherlands – court permits sanctions defendant to resume trading pending trial

Further to our earlier post from July 2023 concerning raids and an arrest in the Netherlands of a 41-year old on suspicion of breaching Russian sanctions, the District Court of Rotterdam has released a judgment concerning a pre-trial application by the accused seeking the release from attachment of the stock in trade of his business.

The criminal trial is stated as “not expected to take place until the autumn at the earliest”.

The court granted the application, ruling that “the complainant has (for some time now) no other source of income, while his fixed costs continue” and that “the interest of the complainant in being able to trade in the company stock … and thus obtain some income, outweighs” the government’s interest in maintaining the attachment.


Switzerland – publishing the 10 fines for breaching sanctions imposed by SECO: Part 4 – cases 9-10

This is the fourth and final instalment of making public the final administrative criminal decisions imposed by SECO in relation to breaches of the Swiss sanctions against Belarus and Russia.

9. Final administrative criminal decision dated 20 November 2023

Original: 2023-11-20 – I.65 – Strafbescheid

Translation: 2023-11-20 – I.65 – Strafbescheid_Translated to English

The company in question imported a dismantled wooden sauna, and accompanying parts, from a Belarusian company via Kyrgyzstan valued at €3,000. Geneva Rive-Droite customs stopped the importation.

An investigation was commenced on the basis that the products met the criteria for wood products (customs code 4418.9900) rather than the customs code used by the importer which related to prefabricated building structures (customs code 9406).

SECO obtained a ruling from the Federal Customs Office that the goods did indeed fall under the code for wooden products with the other parts being irrelevant as they had no impact on price, and that the customs code for prefabricated buildings was not relevant to a sauna which was to be installed internally rather than as a stand alone structure.

SECO took the view that the breach was negligent and resulted from a breach of the duty to conduct “additional checks on the classification of products prior to the conclusion of a purchase contract with a company based in Belarus” rather than deliberate and given the low value of the goods imposed a fine of CHF 1,000 plus CHF 580 in costs.

Comment: The use of the prohibition against importing “wood products” from Belarus to cover finished items made from wood is noteworthy.

10. Final administrative criminal decision dated 15 January 2024

Original: 2024-01-15 – I.73 – Strafbescheid

Translation: 2024-01-15 – I.73 – Strafbescheid_Translated to English

The company in this case sought to export polyethylene products some of which were prohibited (customs code 3920.10) and some of which were not (*customs code 3916.10) from export to Russia. The value of the prohibited goods was €5,373.

The shipment was stopped by customs at Zürich airport. An investigation was started and the company admitted the facts stating that it had “not even considered that the delivery of polyethylene sheets could fall under the Ukraine Regulation“.

SECO accepted that the breach was negligent and not intentional, and in light of the early cooperation, the low value of the breach, and the provisions of Swiss law permitting the corporation to pay a fine of CHF 5,000 or less rather than investigators seeking to identify culpable individuals, the fine imposed was CHF 2,500 plus costs of CHF 1,260.

Comment: In this case the company gave the name of “the person responsible for the alleged facts”. SECO, however, took the view that this admission was insufficiently detailed to be relied upon for the purpose of imposing personal criminal liability and a fine on that individual.

United Kingdom – HMRC corrects/changes description of earlier fine to withdraw reference to Russian sanctions

Back in April we posted about a Compound Penalty imposed by HMRC on a company for breaching the UK’s Russian Sanctions Regulations.

The company was fined £1,058,781.79.

HMRC has today issued a changed Notice to Exporters about this fine. The changed description removes any reference to the UK’s Russian sanctions regulations and replaces it with:

March 2024 – £1,058,781.79 was paid relating to the unlicensed exports of dual use goods controlled by Retained Regulation 428/2009“.

No explanation for the change is given.

Switzerland – publishing the 10 fines for breaching sanctions imposed by SECO: Part 3 – cases 7-8

This is the third  instalment in our series of publishing the 10 final administrative criminal decisions reached by SECO in Switzerland. The examples below relate to Russian and Belarusian sanctions.

7.   Final administrative criminal decision dated 19 September 2023

Original: 2023-09-19 – I.60 – Strafbescheid

Translation: 2023-09-19 – I.60 – Strafbescheid_Translated to English

This final decision relates to a company which sought to export to Belarus an embossing roll used in the embossing of cigarette packaging. The value of the products was stated as €21,300. The products were stopped at Zürich airport customs and an investigation was commenced.

The company sought to argue that, while its product was covered by the customs code annexed to the Swiss regulation it was not “machinery” and so not covered by the wording of the export prohibition contained in art. 6 of the Belarus Ordinance.

SECO disagreed saying that if the product was covered by the customs code included in the Annex then it was covered by the prohibition in the Ordinance itself but invited the company to seek (if it wished) a ruling as to whether an embossing roll fell within customs code 8420.9120.

The company sought that ruling and the FOCBS confirmed that the rolls were properly covered by that number.

The company then communicated to SECO that based on the company’s own view that its product was a part and not itself machinery “the only criticism that can therefore be made of our company is its interpretation of the regulatory provisions“.

SECO disagreed and found that the company was in negligent, but not intentional, breach of the sanctions with the company having “a responsibility to carefully analyse the embargo orders imposed by Switzerland and to take the necessary measures to avoid contravening them [and that] additional checks on the classification of its products before the conclusion of new orders to Belarus were reasonably required“.

SECO, however, determined that the appropriate course was reliance on the provisions permitting a fine of CHF 5,000 or less in order to avoid a disproportionate investigation to determine individual culpability.

The company was also given credit for cooperation and was fined CHF 3,000 plus CHF 1,070 in costs.

Comment: Given that the company said it carefully analysed the regulations in question and that it sought to rely on what it saw as an inconsistency between the customs codes listed in the Annex which attached to their products, and the company’s narrow reading of the wording of the prohibition in the Ordinance, a regulator or prosecutor might have been entitled to conclude that the breach was intentional. The company knew that the product code attached to its goods was barred from export to Belarus.

There is also scope for querying the mitigation credit for cooperation in the circumstances of this investigation.

8.   Final administrative criminal decision dated 28 September 2023

Original: 2023-09-28 – I.71 Strafbescheid

Translation: 2023-09-28 – I.71 – Strafbescheid_Translated to English

The company sought to export 700 rubber seals (customs code 4016.93) and 3,750 valves (customs code 8481.20) to Russia. The products were stopped by customs at Geneva Airport in December 2022. The goods were valued at €69,315.

On 1 January 2022 the company had written to SECO to obtain advice on whether it could export its products to Russia. It was not until 2 June 2022 that SECO replied stating that the products were prohibited from export to Russia but that for contracts which pre-dated 28 April 2022 there was a sunset provision enabling export up until 29 July 2022.

Further, because the products were for use in prosthetic knees, there was a licence exception for medical goods that was available.

Nonetheless the company proceeded to try and export the products in December 2022 without applying for the available licence.

After the commencement of the investigation the company applied for, and obtained a licence permitting export of the goods.

SECO emphasized that “a request for a derogation must have been submitted to SECO prior to any sale, delivery and export, and SECO must have granted the necessary approval. It is not possible to legalize the sale, supply or export of goods listed in Annex 23 unlawfully by an authorization granted on a retroactive basis. … The fact that the goods in question were issued at the beginning of February 2023 for a use in accordance with the law is irrelevant to the question of the lawfulness of the sale, delivery and export of the goods in December 2022“.

Despite the company having been told in writing that the unlicensed export of the products to Russia would certainly be prohibited after July 2022, SECO proceeded on the basis that the breach was negligent and not intentional.

The company was fined CHF 1,000 with costs of CHF 1,270.

Comment: Practitioners will note the clarity of the view from SECO as to the impossibility of retrospective authorisation.

It is also seems likely, however, that the medical nature of the products in question played a role in the generous conclusion of a negligent rather than intentional breach in the circumstances of this case.



Cyprus – enforcement update including first two sanctions cases referred for prosecution

It is being reported in Cyprus that two cases have been referred to the Prosecutor’s Office for instituting criminal proceedings. No other information was published on these matters.

In addition, yesterday the Economic Crime Investigation Unit provided updates to the Law Office on the progress with 10 of their ongoing cases, including (as we have previously noted) the investigation into asset transfers allegedly in breach of the EU’s sanctions by Alexei Mordashov.


Estonia – charges against individuals for alleged Russian sanctions breaches

Further to our earlier post, it is being reported that Estonia’s Office of the Prosecutor General has laid charges against Mati-Dmitri Terestal and Elena Cherysheva on suspicion of breaching the EU’s Russian sanctions.

It is alleged that the defendants received €500,000 funds from a designated person, and made economic resources (in the form of their services) available to a designated person – namely Dmitry Kiselyov, the Director General of Rossiya Segodnya which operated in Estonia as Sputnik.

Switzerland – publishing the 10 fines for breaching sanctions imposed by SECO: Part 2 – cases 4-6

Below is the second in our series of publishing the 10 final administrative criminal decisions reached by SECO in Switzerland. The examples below relate to Russian and Belarusian sanctions.

The final instalment will be published on Tuesday.

4.   Final administrative criminal decision dated 15 May 2023

Original: 2023-05-15 – I.45 – Strafbescheid

Translation: 2023-05-15 – I.45 – Strafbescheid_Translated to English

The company in question sought to export a wrist watch valued at CHF275,766. The export was marked as being for a person with an address in the Russian Federation. The shipment was blocked at Geneva Airport as being potentially in breach of the Swiss prohibition against exporting luxury goods.

The company sought to argue that the sale had taken place in 2020, but could provide no evidence of this, and sought to argue that the customer was resident in Dubai, but the residency document dated several months after the attempted export.

SECO noted that the prohibition covers, “sale, delivery and export”, and so the fact of a sale in 2020 (even if that was the date) did not stop the offence having been completed by virtue of the blocked export.

SECO, however, accepted that the breach was not intentional but was rather negligent but that it was unable to determine whether the breach was the result of “non-compliance with internal guidelines by the responsible employee …, insufficient implementation of these guidelines in the internal process, absence of such guidelines, insufficient and inadequate compliance structures, lax application of internal guidelines by the employee in charge, insufficient control of that person by his or her supervisor or a combination of all of these”.

As with the other fines previously published SECO chose to use the mechanism of imposing a fine of CHF 5000 or less rather than seeking to investigate the responsible individuals. SECO imposed a fine of CHF5,000 with costs of  CHF 1,280.

Comment: Given the relatively high value of the watch in question, and the reliance on evidence that was not exculpatory, the company in question may have achieved a result at the lower end of the scale of what might have been expected. Under Swiss law a negligent breach can attract a fine of up to CHF 100,000.

5.   Final administrative criminal decision dated 22 June 2023

Original: 2023-06-22 – I.61 – Strafbescheid

Translation: 2023-06-22 – I.61 – Strafbescheid_Translated to English

The company sought to export 10,583.9 kg of food colouring valued at €47,000 to Russia. The goods were stopped at St Margrethen custom office and an investigation was commenced.

The company admitted the facts, but stated it “had assumed the sale of food colours to a company domiciled in the Russian Federation is permitted”. As stated by SECO: “It is not clear on what basis it came to that conclusion at the time”.

Nonetheless, SECO concluded that “the conduct of the accused constitutes imprudence in breach of duty and is to be qualified as negligent” rather than intentional conduct. SECO also noted that the “execution of the export transaction by the accused is due to a chain of unfortunate circumstances” but provides no further detail on this point.

SECO again used the mechanism of imposing a fine of CHF 5,000 or less noting that “it is hardly possible to reconstruct who ultimately authorized the transaction”. The fine was CHF 4,500 plus costs of CHF 1,260.

SECO noted the company’s co-operation and early admission of the facts.

Comment: one of the justifications cited by SECO for using the CHF 5,000 fine option and not conducting further investigations was that it would be “disproportionate in view of the penalty forfeited”. This is circular reasoning. The size of the fine should not be reason for the size of the fine.

Given that the company appears to have undertaken no due diligence or investigation of any sort before seeking to export to Russia it is, perhaps, a surprising result that SECO chose to impose the fine that it did.

6.   Final administrative criminal decision dated 4 September 2023

Original: 2023-09-04 – I.49 – Strafverfügung

Translation: 2023-09-04 – I.49 – Strafverfügung_Translated to English

This document takes a slightly different format as the company in question challenged the original penalty notice of CHF 7,810 and costs of CHF 1,290, which was then subsequently upheld.

The company was the authorized consignor for 10 shipments to Russia and one to Belarus. All but one of these were stopped by customs. After the opening of the investigation a further two shipments from this company which were due to be exported to Russia were stopped.

The total value of the goods was said to be CHF 15,619.18, but six of the exports were said to have the exact value of CHF 1,000 which permits some suspicion as to the declared values. The goods were a mixture of parts for luxury branded cars, and other luxury goods such as clothing, a musical instrument and a laptop.

The company sought to argue that no offence had been committed as all that it did was transport goods within Switzerland, and that at most all that could be said was that there was an attempt to export.

SECO disagreed and stated: “In order to complete the deed, it is not required that the goods must have reached the country of destination. Since consignments of goods destined for export and delivery to the Russian Federation or, in one case, to Belarus … constitutes prohibited transport within the meaning of” the respective regulations.

SECO alleged that the company had a “duty of care of a customs declarant to check whether there are any prohibitions, restrictions or conditions in relation to a consignment of goods” and that it had an “increased duty2 due to its status as a “Authorised Consignor”. Nonetheless, SECO did not alleged intentional breach of the regulations (even for those done after the commencement of the investigation) but rather negligent breaches. SECO also concluded that the breaches were not “outliers” as 12 of the breaches took place in just five months.

SECO imposed a fine of CHF 7,810 and costs of CHF 1,310.

Comment: The clarification on SECO’s views as to what constitutes “transport” and that this can be committed even through actions wholly internal to Switzerland is to be welcomed.

The lack of an allegation of deliberate breach is perhaps surprising in the circumstances, as is the giving of credit for cooperation given that conduct continued during the investigation and the initial fine was contested.

Netherlands – investigation as to whether a designated person owns/controls football club

It is being reported in the UK and in the Netherlands, that the Dutch Ministry of Economic Affairs is investigating whether Roman Abramovich owns or controls the football club Vitesse Arnhem. The allegation of ownership or control is based on a series of financial arrangements and loans.

While those arrangement pre-date the sanctions, if the club was indeed owned or controlled by a designated person its operations since the designation are likely to have been conducted in breach of the asset freeze.

United Kingdom – OFSI has ongoing oil price cap investigations

As part of its evidence to the UK Parliament HM Treasury (of which OFSI is a part) has provided the first indications that it has ongoing investigations into possible breaches of the oil price cap.

HM Treasury stated:

OFSI takes a proactive enforcement approach and is currently undertaking a number of investigations into suspected breaches of the oil price cap, using powers under SAMLA to request information and working closely with international partners in the G7+ coalition. Although OFSI cannot discuss or comment on individual cases, OFSI is able to launch investigations based on
suspected breach reports shared with us, intelligence capabilities, and other reporting“.

HM Treasury also repeated the statistic from its Annual Report that as of April 2023 it had 172 cases under live investigation (no update covering the intervening 13 months was provided), and confirmed an earlier ministerial answer that the first fines for breaches of post-2022 Russian sanctions are expected this year.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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