By Alexis Anagnostakis
The Empty Chair at the Sanctions Table
Why arbitrary detention remains the EU Magnitsky regime’s most under-used tool — and what a more confident use of it could look like.
By Alexis Anagnostakis · Athens Bar Association
There is a peculiar asymmetry in how we talk about the EU’s “Magnitsky” regime. Ask a sanctions lawyer in Brussels what Council Regulation (EU) 2020/1998 is for, and the answer arrives dressed in the language of atrocity — genocide, extrajudicial killing, torture. Ask a criminal defence lawyer who spends her days in pre-trial detention hearings, and she may not think of it at all.
Yet the Regulation places arbitrary arrest or detention on exactly the same footing as torture and enforced disappearance as a freestanding ground for designation. It is, on paper, one of the most direct instruments the EU has for reaching the individual official — the investigating judge who signs the order, the prosecutor who requests it, the prison governor who executes it — rather than the state as an abstraction.
In practice, it has been the least deployed limb of the regime. This piece asks why, and what a more confident use of it might look like.
A regime built for individuals, not states
Adopted on 7 December 2020, the EU’s Global Human Rights Sanctions Regime was designed to bypass geography altogether. Unlike the EU’s older country-specific regimes — Belarus, Syria, Russia — it lets the Council freeze assets and impose travel bans on any person, anywhere, without first building a bilateral sanctions architecture against the state that employs them.
Article 2 splits the designation criteria into two tiers. The first — genocide, crimes against humanity, torture, slavery, extrajudicial killing, enforced disappearance, and arbitrary detention — requires no separate showing of scale; a single, well-evidenced act can in principle suffice. The second, residual tier catches abuses like interference with assembly or expression only where they are widespread or systematic. Arbitrary detention sits, deliberately, in the first tier — a judgment that tracks international law, where arbitrary detention can itself amount to persecution or, in aggravated form, a crime against humanity.
The regime also reaches past the person who signs the order. Liability extends to anyone who provides support for, or is “otherwise involved in,” the listed acts — including by planning, directing, assisting, or facilitating them. For arbitrary detention, that opens the door to the intelligence officer who builds the file, the ministry official who instructs the prosecutor’s office, or the prison administrator who keeps a facility running.
The Council’s practice of designating by institutional role, rather than individual act, is closer to political-preventive reasoning than to adjudicative fact-finding.
What “arbitrary” means when the Council is asking
Here is where the regime’s promise meets its principal difficulty. The Regulation never defines “arbitrary arrest or detention.” In practice the Council appears to borrow the concept from international human rights law generally — echoing, without formally citing, the categories used by the UN Working Group on Arbitrary Detention, and the Article 5 and Article 6 ECHR jurisprudence that determines whether a conviction underlying a detention can be treated as legitimate at all.
For a practitioner used to the granular, fact-specific reasoning of the European Court of Human Rights — where lawfulness turns on the precise domestic legal basis, its foreseeability, and its application to the individual case — the Council’s habit of designating by broad institutional role can feel like a different register of law. The Court of Justice has said as much: restrictive measures are preventive, not punitive, and the Council keeps a wide margin of political discretion, reviewable only for manifest error.
The threshold is not nothing, though. Since Kadi, the Court of Justice has required a genuine review of the factual basis for a listing — now a four-step test, most recently restated in RT France. The Council must point to concrete, specific evidence capable of substantiating each reason given, precise enough for the person to understand and contest it. Generic references to a “repressive apparatus” will not do. What is needed is a documented arrest, a named victim or class of victims, and connective evidence — a signature, a role in the chain of command, a pattern.
A regime that resists its own targets
The record of challenges to these listings is sobering for anyone building a designation strategy around arbitrary detention. The General Court’s 2025 case law on Russia sanctions shows a fairly settled posture: procedural imperfections rarely justify annulment unless the outcome would plausibly have differed; the Council need not produce an exhaustive dossier, only reasoning specific enough to be understood and contested; and successful applicants remain rare. Kadi itself is still something of an outlier nearly two decades on.
For arbitrary detention specifically, this cuts both ways. It means the Council can list on a comparatively modest evidentiary file — useful where the detaining state will never cooperate with an EU fact-finding request. But it also means that anyone advocating for a listing, rather than defending one, cannot assume a well-drafted intervention will be enough: proposals need a Member State or the High Representative to sponsor them, and political appetite, not evidentiary sufficiency, is usually the binding constraint.
There is a jurisdictional wrinkle worth flagging too. The Common Foreign and Security Policy is, as a rule, excluded from the Court of Justice’s jurisdiction. The action for annulment against a sanctions listing is one of the Treaty’s narrow, expressly carved-out exceptions. The Grand Chamber’s 2024 judgment in KS and KD v Council pushed that exception further still — a development that keeps opening incremental space for accountability litigation in an area the Treaty framers plainly meant to insulate from ordinary review.
Where the regime has gone — and the gap that remains
Listings to date have concentrated on a recognisable set of situations: the 2021 Navalny-linked designations that inaugurated the regime, the Xinjiang-related listings, and successive rounds touching Belarus, the Wagner Group, Iran, Myanmar, and more recently settler violence in the West Bank and abuses inside Crimean detention facilities. Detention-related conduct features in several of these — the Crimea listings were framed explicitly around abuses in detention centres — but almost always braided into a wider repression narrative, rather than pleaded as a standalone case built on the liberty and fair-trial architecture familiar from Article 5 and 6 litigation.
What is rare is a listing built primarily around the judicial machinery of arbitrary detention: the prosecutor who brings charges known to be unfounded, the court president who assigns sensitive cases to compliant panels, the presiding judge who extends pre-trial detention as administrative routine rather than individualised necessity. This is precisely the pattern documented in states where lawyers have been targeted for the exercise of their professional functions — a fact pattern well known to bar associations and judicial-independence monitors, and one squarely within the regime’s first-tier criteria, since detaining a lawyer for doing the job is close to the paradigm case of arbitrary detention recognised in international law.
The gap is not conceptual. The architecture is there. It is institutional and evidentiary: proposals need a state sponsor, a litigation-proof dossier, and political bandwidth that often goes to country-based instruments instead. Bodies with sustained fact-finding capacity — bar associations, rapporteur networks, ECtHR third-party intervenors — are unusually well placed to build exactly the individualised, source-verified dossier the Council needs and rarely receives unprompted.
Complementarity, not substitution
It is worth being precise about what this regime can and cannot do. It is not a substitute for an Article 5 ECHR application, still less for a UN Working Group opinion; it establishes no violation, awards no remedy to the victim, and creates no binding precedent on the lawfulness of the detention itself. What it offers instead is a targeted, extraterritorial consequence for the individual official — operative immediately, requiring no exhaustion of domestic remedies, no admissibility threshold, and no wait for a respondent state’s compliance with a judgment it may simply decline to execute.
For officials who will never appear before the Court in Strasbourg — because their state has denounced the Convention, or because the detained person cannot safely bring proceedings at all — it may be the only supranational consequence realistically available in the near term. Used well, an ECtHR judgment finding a violation of Article 5 or 6, or a Working Group opinion, is not a dead end but raw material: exactly the “concrete and specific evidence” the Council’s own case law says it needs. The two systems were never designed to speak to each other. There is no reason they should not.
🫐 This article is offered as a general overview of the legal framework and does not constitute legal advice on any specific case or designation. Council Regulation (EU) 2020/1998 and Council Decision (CFSP) 2020/1999, as amended, remain the primary sources; readers considering a sanctions proposal should consult the current consolidated texts and Commission implementation guidance before relying on any summary, including this one.
