Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

30 March 2022 (*)

(Common foreign and security policy – Restrictive measures taken having regard to the situation in Ukraine – Freezing of funds – List of the persons, entities and bodies covered by the freezing of funds and economic resources – Maintenance of the applicant’s name on the list – Council’s obligation to verify that the decision of an authority of a third State was taken in accordance with the rights of the defence and the right to effective judicial protection)

In Case T‑292/20,

Oleksandr Viktorovych Yanukovych, residing in Saint Petersburg (Russia), represented by M. Anderson, Solicitor, E. Dean and J. Marjason-Stamp, Barristers,

applicant,

v

Council of the European Union, represented by T. Haas, P. Mahnič, S. Van Overmeire and A. Boggio-Tomasaz, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking the annulment of Council Decision (CFSP) 2020/373 of 5 March 2020 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2020 L 71, p. 10) and Council Implementing Regulation (EU) 2020/370 of 5 March 2020 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2020 L 71, p. 1), in so far as those acts maintain the applicant’s name on the list of persons, entities and bodies subject to those restrictive measures,

THE GENERAL COURT (Fifth Chamber),

composed of D. Spielmann, President, R. Mastroianni (Rapporteur) and M. Brkan, Judges,

Registrar: M. Zwozdziak, Administrator,

having regard to the written part of the procedure and further to the hearing on 12 October 2021,

gives the following

Judgment

 Background to the dispute

1        The present case has been brought in the context of proceedings relating to the restrictive measures adopted against certain persons, entities and bodies in view of the situation in Ukraine following the suppression of the demonstrations in Independence Square in Kiev (Ukraine) in February 2014.

2        The applicant, Mr Oleksandr Viktorovych Yanukovych, is a businessman and the son of the former President of Ukraine, Mr Viktor Feodorovych Yanukovych.

3        On 5 March 2014, the Council of the European Union adopted Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and, on the same date, it adopted Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1) (together, ‘the March 2014 acts’).

4        Recitals 1 and 2 of Decision 2014/119 state as follows:

‘(1)      On 20 February 2014, the Council condemned in the strongest terms all use of violence in Ukraine. It called for an immediate end to the violence in Ukraine, and full respect for human rights and fundamental freedoms. It called upon the Ukrainian Government to exercise maximum restraint and opposition leaders to distance themselves from those who resort to radical action, including violence.

(2)      On 3 March 2014, the Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine.’

5        Article 1(1) and (2) of Decision 2014/119 provides as follows:

‘1.      All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.

2.      No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’

6        The detailed rules governing that freezing of funds are laid down in Article 1(3) to (6) of Decision 2014/119.

7        In accordance with Decision 2014/119, Regulation No 208/2014 requires measures to be adopted for the freezing of funds and resources as provided for by that decision (‘the restrictive measures at issue’), and lays down the detailed rules governing that freezing of funds and resources in terms which are identical, in essence, to those used in that decision.

8        The names of the persons covered by the March 2014 acts are included on the list in the annex to Decision 2014/119 and in Annex I to Regulation No 208/2014 (‘the list’) together with, inter alia, a statement of the reasons for their listing.

9        The applicant’s name appeared on the list with the identifying information ʻson of former President [Yanukovych], businessmanʼ and the following statement of reasons:

‘Person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’

10      By application lodged at the Court Registry on 14 May 2014, the applicant brought an action, registered as Case T‑348/14, seeking, inter alia, annulment of the March 2014 acts in so far as they concerned him.

11      On 29 January 2015, the Council adopted Decision (CFSP) 2015/143 amending Decision 2014/119 (OJ 2015 L 24, p. 16), and Regulation (EU) 2015/138 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1).

12      Decision 2015/143 amended, as from 31 January 2015, the listing criteria for the names of the persons targeted by the freezing of funds, replacing the text of Article 1(1) of Decision 2014/119 with the following:

‘1.      All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.

For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:

(a)      for the misappropriation of Ukrainian public funds or assets, or being an accomplice thereto; or

(b)      for the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.’

13      Regulation No 208/2014 was similarly amended by Regulation 2015/138.

14      On 5 March 2015, the Council adopted Decision (CFSP) 2015/364 amending Decision 2014/119 (OJ 2015 L 62, p. 25), and Implementing Regulation (EU) 2015/357 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1) (together, ‘the March 2015 acts’). Decision 2015/364 replaced Article 5 of Decision 2014/119 by extending the application of the restrictive measures at issue, so far as the applicant was concerned, until 6 March 2016, and replaced the annex to that decision. Implementing Regulation 2015/357 consequently replaced Annex I to Regulation No 208/2014.

15      By the March 2015 acts, the applicant’s name was maintained on the list with the identifying information ‘son of former President, businessman’ and the following new statement of reasons:

‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets.’

16      On 8 April 2015, the applicant modified the form of order sought in Case T‑348/14, in accordance with Article 86 of the Rules of Procedure of the General Court, so as to cover also the annulment of Decision 2015/143, Regulation 2015/138 and the March 2015 acts, in so far as all those acts concerned him.

17      On 4 March 2016, the Council adopted Decision (CFSP) 2016/318 amending Decision 2014/119 (OJ 2016 L 60, p. 76), and Implementing Regulation (EU) 2016/311 implementing Regulation No 208/2014 (OJ 2016 L 60, p. 1) (together, ‘the March 2016 acts’).

18      By the March 2016 acts, the application of the restrictive measures at issue was extended, including with respect to the applicant, until 6 March 2017. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.

19      By application lodged at the Court Registry on 13 May 2016, the applicant brought an action, registered as Case T‑245/16, for annulment of the March 2016 acts in so far as they concerned him.

20      By judgment of 15 September 2016, Yanukovych v Council (T‑348/14, EU:T:2016:508), the General Court annulled the March 2014 acts in so far as they concerned the applicant and dismissed the application for annulment contained in the modification of the application (see paragraph 16 above).

21      On 23 November 2016, the applicant brought an appeal before the Court of Justice, registered as Case C‑599/16 P, against the judgment of 15 September 2016, Yanukovych v Council (T‑348/14, EU:T:2016:508).

22      On 3 March 2017, the Council adopted Decision (CFSP) 2017/381 amending Decision 2014/119 (OJ 2017 L 58, p. 34), and Implementing Regulation (EU) 2017/374 implementing Regulation No 208/2014 (OJ 2017 L 58, p. 1) (together, ‘the March 2017 acts’).

23      By the March 2017 acts, the application of the restrictive measures at issue was extended, including with respect to the applicant, until 6 March 2018. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.

24      By application lodged at the Court Registry on 12 May 2017, the applicant brought an action, registered as Case T‑286/17, for annulment of the March 2017 acts in so far as they concerned him.

25      By judgment of 19 October 2017, Yanukovych v Council (C‑599/16 P, not published, EU:C:2017:785), the Court of Justice dismissed the applicant’s appeal by which he sought to have the judgment of 15 September 2016, Yanukovych v Council (T‑348/14, EU:T:2016:508), set aside in part.

26      On 5 March 2018, the Council adopted Decision (CFSP) 2018/333 amending Decision 2014/119 (OJ 2018 L 63, p. 48), and Implementing Regulation (EU) 2018/326 implementing Regulation No 208/2014 (OJ 2018 L 63, p. 5) (together, ‘the March 2018 acts’).

27      By the March 2018 acts, the application of the restrictive measures at issue was extended, including with respect to the applicant, until 6 March 2019 and his name was maintained on the list with the identifying information ‘son of former President, businessman’ and the following new statement of reasons:

‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for being an accomplice thereto.’

28      By application lodged at the Court Registry on 13 May 2018, the applicant brought an action, registered as Case T‑301/18, for annulment of the March 2018 acts in so far as they concerned him.

29      On 4 March 2019, the Council adopted Decision (CFSP) 2019/354 amending Decision 2014/119 (OJ 2019 L 64, p. 7), and Implementing Regulation (EU) 2019/352 implementing Regulation No 208/2014 (OJ 2019 L 64, p. 1) (together, ‘the March 2019 acts’).

30      By the March 2019 acts, the application of the restrictive measures at issue was extended until 6 March 2020 and the applicant’s name was maintained on the list, with the same reasoning as that set out in paragraph 27 above, together with a clarification concerning respect for his rights of defence and his right to effective judicial protection in the criminal proceedings on which the Council had relied.

31      By application lodged at the Court Registry on 14 May 2019, the applicant brought an action, registered as Case T‑302/19, for annulment of the March 2019 acts in so far as they concerned him.

32      By judgment of 11 July 2019, Yanukovych v Council (T‑245/16 and T‑286/17, not published, EU:T:2019:505), the General Court annulled the March 2016 acts and the March 2017 acts in so far as they concerned the applicant.

33      By judgment of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2019:676), the General Court annulled the March 2018 acts in so far as they concerned the applicant.

34      Between November 2019 and January 2020, the Council and the applicant exchanged several letters concerning the possible extension of the restrictive measures at issue with respect to the applicant. In particular, the Council sent the applicant several letters from the Ukrainian Prosecutor General’s Office (‘the PGO’) concerning, inter alia, the criminal proceedings brought against him, on which the Council was basing the proposed extension.

35      On 5 March 2020, the Council adopted Decision (CFSP) 2020/373 amending Decision 2014/119 (OJ 2020 L 71, p. 10), and Implementing Regulation (EU) 2020/370 implementing Regulation No 208/2014 (OJ 2020 L 71, p. 1) (together, ‘the contested acts’).

36      By the contested acts, the application of the restrictive measures at issue was extended until 6 March 2021, and the applicant’s name was maintained on the list with the same statement of reasons as that set out in paragraph 27 above. Furthermore, the annex to Decision 2014/119 and Annex I to Regulation No 208/2014 were subdivided into two sections, the second of which was entitled ‘Rights of defence and right to effective judicial protection’. That section contains the following statement with respect to the applicant:

‘The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing. The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Yanukovych were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by a number of Court decisions relating to the seizure of property and by the decision of the investigating judge of 27 June 2018 cancelling the resolution of the prosecution refusing to grant the [application by the applicant’s legal representatives for the closure of] the investigation.’

37      By letter of 6 March 2020, the Council informed the applicant that the restrictive measures at issue were to be maintained against him. The Council replied to the observations set out by the applicant in his letters of 30 October and 18 December 2019 and 23 and 31 January 2020, and sent him copies of the contested acts. It also informed him of the deadline for submitting observations prior to a decision being taken regarding the possible maintenance of his name on the list.

 Event subsequent to the bringing of the present action

38      By judgment of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2021:333), the General Court annulled the March 2019 acts in so far as they concerned the applicant.

 Procedure and forms of order sought

39      By application lodged at the Court Registry on 14 May 2020, the applicant brought an action for annulment of the contested acts.

40      On 17 September 2020, the Council lodged the defence.

41      The reply was lodged at the Court Registry on 6 November 2020.

42      The rejoinder was lodged at the Court Registry on 22 December 2020. On the same day, the written part of the procedure was closed.

43      By document lodged at the Court Registry on 11 January 2021, the applicant requested that a hearing be held.

44      As a member of the Fifth Chamber was unable to sit, the President of the Court designated another Judge to complete the Chamber.

45      On 3 August 2021, the Council submitted a reasoned application, under Article 66 of the Rules of Procedure of the General Court, for the content of certain documents annexed to the application and the defence and certain passages in the defence not to be reproduced in the documents relating to the case to which the public has access.

46      By decision of the President of the Fifth Chamber of the General Court of 9 August 2021, the present case and Case T‑291/20, Yanukovych v Council, were joined for the purposes of the oral part of the procedure, pursuant to Article 68 of the Rules of Procedure, the parties having been heard in that respect.

47      Acting on a proposal from the Judge-Rapporteur, the General Court (Fifth Chamber) decided to open the oral part of the procedure.

48      The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 12 October 2021, which, at the request of the Council and the applicant having been heard, was conducted in part in camera.

49      At the hearing, the applicant presented observations on the report for the hearing, formal note of which was made in the minutes of the hearing.

50      The applicant claims that the Court should:

–        annul the contested acts, in so far as they concern him;

–        order the Council to pay the costs.

51      Following the clarifications provided at the hearing in reply to a question from the Court, the Council claims that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

52      In support of the action, the applicant relies on seven pleas in law, the first and second, raised together, alleging failure to comply with the criteria for inclusion on the list and a manifest error of assessment; the third, alleging failure to state reasons; the fourth, alleging breach of the rights of the defence and of the right to effective judicial protection; the fifth, alleging the lack of a legal basis; the sixth, alleging misuse of power; and the seventh, alleging breach of the right to property.

53      In the first place, it is appropriate to examine the first and second pleas together, in so far as it is alleged that the Council failed to verify that the Ukrainian authorities had respected the applicant’s rights of defence and his right to effective judicial protection and that, as a result, the Council made a manifest error of assessment when adopting the contested acts.

54      In the context of those pleas, first, the applicant recalls that review by the Courts of the European Union extends, in principle, to the assessment of the facts and circumstances invoked by the Council to justify maintaining his name on the list, and to the verification of the evidence and information on which it relied. He adds that, in the context of assessing whether the decision to maintain such measures is taken on a sufficiently solid factual basis, the Courts of the European Union must verify that the Council has checked that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State on which it intends to rely.

55      In the second place, the applicant claims that the PGO’s statements on which the Council relied in order to adopt the contested acts did not afford it a sufficiently solid factual basis on which to include his name on the list, those documents being utterly inadequate, inconsistent, baseless or false. In accordance with settled case-law, in view of the climate of political persecution, the lack of independence of the judicial system and the serious inconsistencies in the allegations made against the applicant, the Council should have sought clarification from the Ukrainian authorities and carried out an independent verification of the facts alleged.

56      While stating that it is apparent from the Council’s letter of 6 March 2020 and the contested acts that, when those acts were adopted, the Council relied solely on criminal proceedings No [confidential] (1) (‘proceedings [confidential]’), [confidential], the applicant claims, in essence, that the Council made manifest errors of assessment, first, by deciding that the pre-trial investigation concerning him constituted a sufficient factual basis to justify maintaining his name on the list and, secondly, by failing to ensure that his rights of defence and his right to effective judicial protection were respected. Accordingly, the facts and the decisions of the Ukrainian authorities relied on by the Council do not serve to demonstrate that those rights were respected and, therefore, to justify maintaining the restrictive measures at issue.

57      According to the applicant, the facts alleged in proceedings [confidential] cannot be classified as misappropriation of State funds. First, he is not a public official and has never been entrusted with the management of the funds or assets of the company Artemivsk Winery PJSC; secondly, he does not exercise any control over that company; thirdly, the PGO has not demonstrated the commission of the offences of which he is accused; and, fourthly, the charges brought against him are flawed under Ukrainian law. Moreover, the investigation in question was suspended for the 35th time on 14 March 2017 and has not been reopened since that date, no meaningful progress has been made since it commenced and a Ukrainian court annulled the PGO’s refusal to close that investigation on the basis of insufficient evidence.

58      In that regard, the applicant states that the PGO’s explanation that the investigation is suspended ‘due to the search for the suspect’ is false and has already been rejected by the investigating judge of the Pechersk District Court in Kiev, in criminal proceedings No [confidential] (‘proceedings [confidential]’), [confidential], who concluded that the applicant’s location in Russia was known. Furthermore, although the investigation was suspended and reopened no less than 35 times, often on the same day, and always for the same reason mentioned above, the Council always merely settled for the incomplete explanations given by the PGO, without seeking further clarifications. The PGO never made any application to a Ukrainian court to conduct a pre-trial investigation in the applicant’s absence, despite the Ukrainian regime having enacted legislation for this very purpose. A decision of the investigating judge of the Pechersk District Court dated 9 September 2020, which annulled an earlier suspension of the investigation, confirms that the applicant’s whereabouts were known and that there were no grounds to include his name on the list of wanted persons.

59      The only real step forward that occurred after the adoption of the March 2019 acts was the making available of the full version of the decision of 27 June 2018, which, in itself, does not however show that the proceedings are actually ongoing. In that regard, the applicant claims, first, that the PGO did not reconsider its refusal to close the pre-trial investigation which had been annulled by that decision and, secondly, that the reasons which it had put forward to justify its position, namely that it had not yet received the full version of the decision of 27 June 2018, were unfounded. The PGO had received a copy of that decision from the applicant and it is apparent from a document from the Pechersk District Court, added to the file by the applicant, that that document had been delivered in person to the prosecutor at that court’s premises. Although the Council was made aware of those circumstances, it merely endorsed the explanations provided to it by the PGO.

60      Lastly, the applicant criticises the Council for having ignored the information which he had provided to it concerning the absolute lack of progress in the pre-trial investigation in question since its transfer, on 18 November 2019, to the Ukrainian National Police Department, which confirms that proceedings [confidential] have completely stalled without any prospect of further progress.

61      As regards the judicial decisions relating to the seizure of property belonging to him, the applicant claims that, first, they are of a procedural nature and were delivered well before the adoption of the contested acts and, secondly, they were not examined by the Council, to which they were not available, notwithstanding the fact that he had claimed that they were unlawful, in that the notice of suspicion had not been duly notified to him. Thus, such decisions cannot be relied on to demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected prior to the adoption of the contested acts.

62      In the third place, the applicant complains that the Council failed to take account of certain arguments and certain evidence which had been put forward before the adoption of the contested acts. First of all, he complains that the Council failed to take into consideration the complete lack of independence of the PGO, which, moreover, attempted, inter alia, to bribe certain persons in order for them to give false testimonies against him or for amendments which expressly cover his situation to be made to the Code of Criminal Procedure of Ukraine (‘the Code of Criminal Procedure’).

63      Next, the applicant submits that the Ukrainian judicial system is neither independent nor impartial. In that regard, the applicant relies, in particular, on five updated reports by an independent expert, a 2017 report by the Group of States against Corruption (GRECO), the Council of Europe’s anti-corruption monitoring body, the situation in Ukraine, the report of the United Nations High Commissioner responsible for the Human Rights Monitoring Mission in Ukraine covering the period from 16 May to 15 August 2018 and the report on human rights in Ukraine of the United States Department of State of 11 March 2020. Furthermore, several infringements of his procedural and fundamental rights occurred in other proceedings brought against his father, which undermines the reliability and credibility of all the accusations and information relating to the misappropriation of public funds, which were formulated and provided for purely political purposes. Similarly, the presumption of the applicant’s innocence is constantly violated by public and condemnatory statements made by Ukrainian State officials.

64      In the first place, the Council contends that it is entitled to rely on the information provided by the PGO in the exercise of its broad discretion in matters of common foreign and security policy (CFSP). Thus, first, it considers that the maintenance of the applicant’s listing on the basis of the information contained in the letters from the PGO meets the designation criteria and has a sufficiently solid factual basis that serves to establish that the applicant is subject to criminal proceedings in Ukraine. Secondly, it considers that it took the applicant’s observations into account and requested further clarification from the Ukrainian authorities, which were duly communicated to the applicant, who was able to express his views on their content. Thirdly, the Council notes that it is not the task of the Council to verify whether the investigations to which the applicant is subject are well founded. Finally, fourthly, as regards compliance with the substantive requirements deriving from the recent case-law of the Court of Justice and of the General Court, the Council states that, contrary to the applicant’s submissions, Ukrainian judicial decisions – which are moreover necessary for the proper conduct of the investigation – can be relied on as evidence of respect for the applicant’s rights of defence and his right to effective judicial protection. Thus, the decision of 27 June 2018 is a good example of respect for the applicant’s rights of the defence and his right to effective judicial protection during the pre-trial investigation in question.

65      In addition, the Council relies on the judicial decisions relating to property seizures which, under the Code of Criminal Procedure, may be taken only by an investigating judge or court during a trial against a suspect, or an accused or convicted person, when there are sufficient grounds to believe that that property is linked to the commission of a criminal offence and where there is a reasonable suspicion that that person committed such a criminal offence.

66      The Council also submits that since it is entitled to rely on evidence provided by the PGO, it is a fortiori entitled to rely on judicial decisions delivered by Ukrainian courts, pursuant to a code of criminal procedure that ensures respect for the rights of the defence, as evidence of the proper conduct of the criminal proceedings on which it intends to rely, including compliance with the rights of the defence and the right to effective judicial protection, in accordance with the presumption of legality of judicial decisions, which cannot be rebutted by mere assertions by the applicant.

67      In the second place, as regards more specifically proceedings [confidential], the Council submits that the information from the PGO continues to provide an adequate basis for maintaining the applicant’s name on the list. In addition, it is clear from the information provided by the PGO that the pre-trial investigation in those proceedings was suspended on 13 March 2019 pursuant to Article 280(1)(2) of the Code of Criminal Procedure which concerns the search for a suspect; moreover, that circumstance does not entail the closure of that investigation. In addition, the Council requested clarifications concerning the consequences of the decision of 27 June 2018 annulling the PGO’s decision not to grant the application for the closure of the investigation made by the applicant’s legal representatives. It takes the view that the PGO’s response in that respect, that is to say that the application would be reconsidered, was reasonable since the investigating judge had not ruled on it. Therefore, the Council cannot be criticised for not having carried out verifications concerning the most recent judicial decisions.

68      Moreover, the Council invokes the case-law according to which periods during which the applicant is on the run should be excluded from the calculations of the period relevant for the assessment of respect for the reasonable time principle during a criminal investigation. It may therefore conclude that the delays in the pre-trial investigation in question are related to the applicant’s prolonged absence from Ukraine, and accordingly no violation of his right to be heard within a reasonable time may be established.

69      In the third place, as regards other factors which it should have taken into account, the Council considers that, in the light of their very general nature, the applicant’s arguments concerning alleged violations of fundamental rights in other proceedings cannot call into question the charges relating to the misappropriation of public funds. Furthermore, it is not for the Council to assess the general claims concerning the independence of the PGO or of the Ukrainian judiciary.

70      Lastly, in its rejoinder, the Council disputes the applicant’s interpretation of the case-law of the General Court concerning the legality of the March 2019 acts. According to the Council, that case-law cannot be interpreted as meaning that no account should be taken of the procedural decisions of the Ukrainian courts, in particular when verifying whether the Ukrainian authorities had complied with the applicant’s rights of defence and his right to effective judicial protection in the ongoing criminal investigation. The questions before the Court are, first, whether the Council’s conclusions regarding respect for those rights had a sufficiently solid factual basis, including the evidence which was, or could reasonably have been, available to it at the time of the adoption of the contested acts, and, secondly, whether the reasons given to justify those conclusions were relevant and sufficient.

71      Thus, ultimately, the Council contends that it has largely demonstrated why it did not make a manifest error of assessment in concluding, on the basis of the evidence obtained and through the proactive exercise of its duty of verification, that the applicant’s rights had been respected by the Ukrainian courts in proceedings [confidential] which form the basis for its decision to maintain the applicant’s name on the list.

72      As a preliminary point, it must be noted that the second plea in law must be regarded as alleging an error of assessment, and not a manifest error of assessment. The Council had no discretion to determine whether it had sufficient evidence to assess whether the Ukrainian authorities had respected the applicant’s rights of defence and his right to effective judicial protection and whether that evidence was capable of giving rise to legitimate doubts concerning the observance of those rights (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 72 and the case-law cited).

73      Furthermore, it is apparent from well-established case-law that, in a review of restrictive measures, the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order, which include, in particular, the right to effective judicial protection and the rights of the defence, as enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 64 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 73 and the case-law cited).

74      The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on a list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern the question whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 65 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 74 and the case-law cited).

75      The adoption and the maintenance of restrictive measures, such as those laid down in the March 2014 acts, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that State, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 66 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 75 and the case-law cited).

76      Thus, while, under a listing criterion such as that referred to in paragraph 12 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were respected by the authorities of the third State which adopted that decision (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 67 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 76 and the case-law cited).

77      The requirement for the Council to verify that the decisions of third States on which it intends to rely have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures has a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 68 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 77 and the case-law cited).

78      Moreover, although it is true that the fact that a third State is among the States which acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), entails review, by the European Court of Human Rights (‘the ECtHR’), of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 77 above (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 69 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 78 and the case-law cited).

79      According to the case-law, the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 70 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 79 and the case-law cited).

80      Ultimately, when it bases the adoption or the maintenance of restrictive measures such as those in the present case on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, secondly, refer, in the decision imposing restrictive measures, to the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 71 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 80 and the case-law cited).

81      In the present case, such obligations appear all the more inescapable since, as is clear from recital 2 of Decision 2014/119, that decision and the subsequent decisions were adopted as part of a policy aimed at consolidating and supporting the rule of law and respect for human rights in Ukraine (see paragraph 4 above), in accordance with the objectives set out in Article 21(2)(b) TEU. Consequently, the purpose of those decisions, which is, inter alia, to assist the Ukrainian authorities in finding any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation, would be irrelevant as regards those objectives if that finding were vitiated by a denial of justice or even by arbitrariness (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 95).

82      It is in the light of those case-law principles that it is necessary to establish whether the Council complied with its obligations in connection with the adoption of the contested acts in so far as those acts concern the applicant.

83      In that regard, it must be noted that the Council referred in the contested acts to the reasons why it had considered that the decision of the Ukrainian authorities to initiate and conduct criminal proceedings against the applicant for misappropriation of public funds or assets had been adopted in accordance with his rights of defence and his right to effective judicial protection (see paragraph 36 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been so in the present case.

84      Indeed, examination of the merits of the statement of reasons, which goes to the substantive legality of the contested acts and consists, in this case, in ascertaining whether the evidence relied on by the Council has been established and whether it is capable of demonstrating that the observance of those rights by the Ukrainian authorities has been verified, must be distinguished from the question of the statement of reasons, which concerns an essential procedural requirement and is merely a corollary of the Council’s obligation to ensure in advance that those rights are observed (see judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 83 and the case-law cited).

85      The restrictive measures previously adopted were extended and maintained with respect to the applicant by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, and in Article 3 of Regulation No 208/2014, as amended by Regulation 2015/138 (see paragraphs 12 and 13 above). That criterion covers persons who have been identified as responsible for the misappropriation of public funds belonging to the Ukrainian State, including persons subject to investigation by the Ukrainian authorities.

86      It is apparent from reasonson which the contested acts are based, referred to in paragraph 36 above, and from the letter of 6 March 2020 that the Council relied, in order to decide to maintain the applicant’s name on the list, on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences constituting misappropriation of public funds or assets, which was established, inter alia, by the PGO’s letters and by certain judicial decisions.

87      The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgments of 11 July 2019, Yanukovych v Council (T‑245/16 and T‑286/17, not published, EU:T:2019:505); of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2019:676); and of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2021:333), on the decision of the Ukrainian authorities to initiate and conduct criminal investigation proceedings relating to an offence of misappropriation of public funds belonging to the Ukrainian State.

88      It must also be noted that when, by the contested acts, the Council amended the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, it added – as it had done when adopting the March 2019 acts – a new section entirely devoted to the rights of the defence and the right to effective judicial protection, which is divided into two parts.

89      The first part of that section contains a simple, general reference to the rights of the defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, reference is made first of all to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. It is then stated, first, that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local court in the presence of the complainant or his or her defence lawyer or legal representative. Secondly, it is stated, inter alia, that Article 309 of that code specifies the decisions of investigating judges that may be challenged on appeal. Lastly, it is made clear that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible pursuant to a ruling by the investigating judge or a court.

90      The second part of the section concerns respect for the rights of defence and the right to effective judicial protection of each person whose name appears on the list. As regards more specifically the applicant, it is stated that, according to the information in the Council’s file, his rights of defence and his right to effective judicial protection were respected in the course of the criminal proceedings on which the Council relied, as is apparent, inter alia, from ‘a number of Court decisions relating to the seizure of property and … the decision … of 27 June 2018 cancelling the resolution of the prosecution refusing to grant the [application by the applicant’s legal representatives for the closure of] the investigation’ (see paragraph 36 above).

91      In the letter of 6 March 2020 sent to the applicant (see paragraph 37 above), the Council stated first of all that the information received from the PGO confirmed that the applicant remained subject to proceedings [confidential] in Ukraine for misappropriation of public funds or assets. Next, it indicated, first, that pending the implementation of the decision of 27 June 2018, those proceedings were still ongoing. Secondly, as regards the question of competence, the Council stated that the pre-trial investigation in those proceedings had been transferred to the Main Investigative Department of the National Police of Ukraine on 18 November 2019. Finally, as regards observance of the applicant’s rights of defence and his right to effective judicial protection, the Council stated that it was apparent from the decision of 27 June 2018, delivered following a public hearing in which the applicant’s lawyers participated and annulling the PGO’s decision by which it refused to grant the application for closure of the investigation lodged by the applicant’s legal representatives, that those rights had been respected.

92      Thus, it is apparent from a combined reading of the reasons set out in the contested acts and in the letter of 6 March 2020 that proceedings [confidential] are the only proceedings in respect of which the Council demonstrates that it did actually verify whether the applicant’s rights of defence and his right to effective judicial protection had been respected, which was, moreover, confirmed by the Council itself in response to a question put by the Court at the hearing.

93      In that regard, it must be observed, at the outset, that the Council has failed to demonstrate to what extent the judicial decisions referred to in paragraph 90 above are evidence of observance of the applicant’s rights of defence and his right to effective judicial protection in the course of proceedings [confidential]. As stated in paragraphs 76 and 77 above, the Council was required, in this case, before deciding to maintain the restrictive measures at issue, to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct criminal investigation proceedings in relation to offences constituting the misappropriation of public funds or assets allegedly committed by the applicant had been taken in accordance with those rights of the applicant (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 92 and the case-law cited).

94      From that point of view, both the decision of 27 June 2018 annulling the PGO’s decision not to grant the application for the closure of the investigation made by the applicant’s legal representatives and the judicial decisions relating to the seizure of property cannot be identified as decisions to initiate and conduct the investigation procedure justifying the maintenance of the restrictive measures at issue, given that they are incidental decisions. That said, it may be accepted that, from a substantive point of view, since those decisions were delivered by a court, they were actually taken into account by the Council as the factual basis justifying the maintenance of the restrictive measures at issue (see, to that effect and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 93 and the case-law cited).

95      It must therefore be ascertained whether the Council was right to consider that those decisions demonstrated that the applicant’s rights of defence and his right to effective judicial protection had been respected.

96      First of all, as regards the judicial decisions concerning the seizure of the applicant’s property, which are not included in the case file, it must be stated that, according to the information provided by the PGO, they were made by the investigating judge of the Pechersk District Court between July 2014 and April 2015, that is to say, approximately 5 years and 8 months and 4 years and 11 months before the adoption of the contested acts, respectively. It follows that those decisions, the legality of which had, moreover, been challenged by the applicant in a number of respects and in respect of which the Council itself acknowledged in the rejoinder and in response to a question from the Court at the hearing, that they had limited evidential value, are not sufficient to establish that proceedings [confidential], on which the Council sought to rely in order to maintain, for the period from March 2020 to March 2021, the restrictive measures at issue vis-à-vis the applicant, were conducted in accordance with his rights of defence and his right to effective judicial protection (see, to that effect and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 109 and the case-law cited).

97      Similar considerations may be formulated concerning the decision of 27 June 2018, since that decision was also taken well before the adoption of the contested acts and the annual periodic review of the applicant’s situation which preceded their adoption.

98      Moreover, the General Court has already had the opportunity to rule on the decision of 27 June 2018 and the decisions relating to the seizure of the applicant’s property, in the case which gave rise to the judgment of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2019:333, paragraphs 106 to 110), and, with regard solely to the decisions to seize property, in the cases which gave rise to the judgments of 11 July 2019, Yanukovych v Council (T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraphs 72 and 91 to 93), and of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2021:676, paragraphs 82 and 92 to 95), against which no appeal was brought before the Court of Justice, by ruling that those decisions were not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection were respected in the proceedings at issue. It must be noted that General Court cannot completely disregard its reasoning concerning those decisions in those cases, which involve the same parties and essentially raise the same legal issues.

99      As regards, more specifically, the decision of 27 June 2018, it must be observed that the Court, after having noted that such a decision could be relied on as an example of respect for the applicant’s rights of defence and his right to effective judicial protection, as the Council contends, stated however that the Council’s verification should have covered both the PGO’s decision of 11 October 2017 rejecting the application to close the investigation made by the applicant, and the PGO’s unsubstantiated failure to take any action at all following the decision of 27 June 2018 which required it to reconsider that application. According to the Court, in so doing, the PGO rendered that decision devoid of any practical effect and thereby deprived the applicant of his right to effective judicial protection (judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 107).

100    In the present case, the Council did not put forward, in its pleadings, any evidence that would have enabled the General Court to reach a conclusion different to that reached in the judgment of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2021:333), as to the evidential value of those decisions.

101    In any event, it must also be noted that all the judicial decisions referred to above fall within the scope, inter alia, of the criminal proceedings which justified maintaining the applicant’s name on the list and are merely incidental to those proceedings since they are either precautionary or procedural in nature. Such decisions, which may serve at most to establish the existence of a sufficiently solid factual basis, in that, in accordance with the applicable listing criterion, the applicant was subject to criminal proceedings relating to offences of misappropriation of funds or assets belonging to the Ukrainian State, are not ontologically capable, alone, of demonstrating that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and his right to effective judicial protection, which it is for the Council to verify, in accordance with the case-law recalled in paragraph 77 above (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 94 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 110 and the case-law cited).

102    In addition, the Council does not put forward any document, contained in the file of the procedure resulting in the adoption of the contested acts, which shows that the Council examined the judicial decisions referred to and that it was able to conclude from that examination that the essence of the applicant’s procedural rights had been observed. By contrast, it is apparent from the case file that the Council was not in possession of the decisions relating to the seizures of the applicant’s property and only had a short version of the decision of 27 June 2018 that did not include a statement of reasons. As regards the latter decision, it should be noted that in response to the Council’s request of 9 December 2019, which states that, according to the applicant’s lawyers, the full version of that decision had been made available to them on 6 September 2019, the PGO merely indicated in its letter of 28 December 2019 that it had not received a copy of the decision, but it had made an application to the Pechersk District Court to obtain it and, once it had received it, it would re-examine the application made by the applicant’s legal representatives.

103    As the applicant rightly states, that assertion by the PGO is invalidated by a range of information of which the Council was aware and which it nevertheless did not take into account. Indeed, the applicant had informed the Council that a copy of the full version of the decision of 27 June 2018 was sent to the PGO on 6 November 2019, that is to say well before the latter’s letter to the Council of 28 December 2019, and, on that occasion, the applicant had asked again that the application to close the investigation be reconsidered. Furthermore, it is apparent from a letter of 22 January 2020, sent to the applicant’s legal representatives in Ukraine by the Pechersk District Court, that a full version of that decision had been delivered in person to the prosecutor at that court’s premises.

104    In its defence, the Council merely notes, first, that the PGO had explained, in response to its question, that the application lodged by the applicant’s legal representatives would be reconsidered. However, that statement does not correspond to the wording of the PGO’s letter in which it had stated that it would reconsider that application once it had received the full version of the decision of 27 June 2018. Secondly, that response by the PGO was reasonable in that it is not disputed that the investigating judge did not rule on the application itself.

105    It follows that, prior to the adoption of the contested acts, the PGO did not comply with the decision relied on by the Council to demonstrate that the applicant’s rights of defence and his right to an effective judicial remedy had been respected and it even provided a justification for not doing so, the misleading nature of which the Council would have been able to assess had it not entirely ignored the evidence adduced by the applicant; this supports the considerations set out by the General Court in paragraph 107 of the judgment of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2021:333) (see paragraph 99 above).

106    The mere reference by the Council to letters and statements of the Ukrainian authorities in which those authorities set out the manner in which the applicant’s fundamental rights had been respected and gave assurances in that regard cannot suffice for the view to be taken that the decision to maintain his name on the list has a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 77 above (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 44).

107    Following the examination of the judicial decisions referred to by the Council in the contested acts, it must be concluded that, even taken as a whole, they are not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection had been respected during the criminal proceedings on which it relied.

108    In that regard, it must also be observed that the Council was under an obligation to carry out such verification irrespective of any evidence adduced by the applicant to show that, in the present case, the applicant’s rights of defence and his right to effective judicial protection had been infringed, the mere possibility of invoking an infringement of those rights before the Ukrainian courts pursuant to provisions of the Code of Criminal Procedure not being sufficient in itself to demonstrate that those rights were respected by the Ukrainian judicial authorities (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 113 and the case-law cited).

109    That conclusion cannot be called into question by the Council’s argument that the applicant has not put forward any evidence capable of demonstrating that his particular situation had been affected by the alleged problems of the Ukrainian judicial system. According to settled case-law, it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 45 and the case-law cited).

110    Moreover, nor does the Council explain how, in particular, the mere existence of the judicial decisions referred to in paragraph 90 above permits the inference that respect for the applicant’s right to effective judicial protection was guaranteed. In that regard, it should be noted that, as the applicant had argued on numerous occasions in the administrative proceedings preceding the adoption of the contested acts, proceedings [confidential], initiated in 2014 and currently suspended, were still at the stage of the pre-trial investigation, itself recently transferred to the Ukrainian National Police Department, with the result that they had not been brought before a Ukrainian court for consideration of the merits, the Ukrainian court having been seised only of procedural matters (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 115).

111    The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess the observance of the right to effective judicial protection (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 98 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 116 and the case-law cited), provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.

112    In so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, such as those provided for by Article 6 thereof, their meaning and scope are, under Article 52(3) of the Charter, the same as those laid down by the ECHR.

113    In that regard, it should be noted that, in its interpretation of Article 6 ECHR, the ECtHR has stated that the purpose of the reasonable time principle is, inter alia, to protect persons charged with a criminal offence against excessive procedural delays and to avoid leaving them in a state of uncertainty about their fate for too long, and that that principle underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited). The ECtHR has also held that breach of that principle may be established, inter alia, where the investigation stage of criminal proceedings has been characterised by a certain number of periods of inactivity attributable to the authorities responsible for that investigation (see, to that effect, ECtHR, 6 January 2004, Rouille v. France, CE:ECHR:2004:0106JUD005026899, §§ 29 to 31; 27 September 2007, Reiner and Others v. Romania, CE:ECHR:2007:0927JUD000150502, §§ 57 to 59; and 12 January 2012, Borisenko v. Ukraine, CE:ECHR:2012:0112JUD002572502, §§ 58 to 62).

114    It is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, and that this has been on account, essentially, of the continuing conduct of the same preliminary investigations, as is the case in this instance, the Council is required to verify whether that person’s right to be tried within a reasonable time has been respected before the adoption of a decision to extend the application of those measures (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 101, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 119; see also, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 114 and the case-law cited).

115    In that regard, as has been noted in paragraph 81 above, it is important to bear in mind the precautionary nature of freezing the applicant’s assets and the purpose thereof, that is to say, as the Council noted in its pleadings and at the hearing, to assist the Ukrainian authorities with establishing any misappropriation of State funds that has taken place, on conclusion of the judicial proceedings, and to ensure that it remains possible for those authorities, ultimately, to recover the proceeds of that misappropriation. It therefore falls to the Council to ensure that that measure, justified precisely by its temporary nature, is not extended unnecessarily, to the detriment of the applicant’s rights and freedoms, on which it has a significant negative impact, merely because the criminal proceedings on which it is based and which are still at the pre-trial investigation stage have been left open, in essence, indefinitely, without any real justification (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 115 and the case-law cited).

116    It is also apparent from the case-law of the ECtHR concerning the interpretation of Article 6 ECHR, relied on by the applicant at the hearing, that delays caused by suspensions of the proceedings by the authorities, the decisions to join and separate the various criminal proceedings and the referrals of a case back to the authorities for further investigation in the context of the same proceedings may be regarded as evidence of a serious deficiency in the operation of the criminal justice system (see, to that effect, ECtHR, 23 June 2016, Krivoshey v. Ukraine, CE:ECHR:2016:0623JUD000743305, § 97 and the case-law cited). In the present case, in the light of the prolonged duration of the pre-trial investigation in question, it follows from what has been stated in paragraph 114 above that the Council was required, prior to the adoption of the contested acts, to satisfy itself that the duration of that investigation was not unreasonable. Moreover, from that point of view, the Council should have taken into account any evidence of possible deficiencies in the Ukrainian criminal justice system apparent from the case file, that is to say, in the present case, the fact that proceedings [confidential] had been suspended and reopened on several occasions and the pre-trial investigation conducted in those proceedings had recently been transferred to another investigating body (see, inter alia, paragraph 110 above), without entailing any progress in the matter, instead of merely relying on PGO’s explanations exclusively as a basis for its assessment.

117    As stated by the applicant in his letters and pleadings, since it was opened on 8 May 2014, the pre-trial investigation in proceedings [confidential] was suspended on numerous occasions including on 13 March 2019, the latest suspension, and has been active only for a few days in total. Moreover, as the applicant observes without being contradicted by the Council, it must be observed that, in its statements, the PGO merely recalled the information which it had previously provided to the Council in its letters of 10 October 2014, 4 September 2015, 30 November 2015, 25 July 2016, 16 November 2016, 5 January 2018, 20 October 2018, 10 July 2018, 2 November 2018 and 29 December 2018, which demonstrates the lack of any progress in that investigation.

118    Although the Council carried out further verifications with the Ukrainian authorities in order to be informed of the reasons justifying the suspension of proceedings [confidential], it is apparent from the file that it was content with the explanations provided by the PGO, according to which the suspension was linked to the search for the applicant, even though in the decision of 7 February 2018, adopted in the context of proceedings [confidential], the investigating judge of the Pechersk District Court had stated, inter alia, that the documents provided in support of the PGO’s application seeking permission to investigate in absentia did not confirm that the applicant was in hiding in order to avoid criminal liability (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 102).

119    Furthermore, although it does not have any bearing on the present case, in so far as the decision of the investigating judge of the Pechersk District Court was only delivered on 9 September 2020 and is therefore subsequent to the adoption of the contested acts, it should nevertheless be noted that, by that decision, an earlier suspension decision of 29 September 2014 was annulled, in the context of proceedings [confidential], on the ground that the PGO was aware of the applicant’s location and it therefore had no reason to include his name on the list of wanted persons.

120    As regards the argument put forward by the Council in its rejoinder that, in accordance with the case-law of the ECtHR, the flight of an accused person has in itself certain repercussions on the scope of the guarantee provided by Article 6(1) ECHR as regards the duration of investigation, it must be observed that, first, assuming that the applicant really absconded, the fact remains that proceedings [confidential] on which the Council relies, relating to acts allegedly committed in 2013, were still at the stage of the pre-trial investigation six years after they were initiated and, secondly, that circumstance had at least been called into question by the investigating judge of the Pechersk District Court in proceedings [confidential] (see paragraph 118 above), a circumstance of which the Council was aware.

121    Finally, the Council should at the very least have assessed all the evidence adduced by the PGO and the applicant and indicated the reasons for which, following an independent and thorough analysis of that evidence, it was able to conclude that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been complied with so far as concerns respect for his right to have his case heard within a reasonable time (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 123 and the case-law cited). That is all the more so in the light of the total lack of information from the PGO in relation to the reconsideration of the application for the closure of proceedings [confidential] made by the applicant following the decision of 27 June 2018

122    It cannot therefore be concluded, having regard to the documents in the file, that the information available to the Council at the time of the adoption of the contested acts enabled it to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct the criminal proceedings at issue had been adopted and implemented in accordance with the applicant’s right to effective judicial protection and, more specifically, his right to have his case heard within a reasonable time.

123    It must also be noted in that regard that the well-established case-law according to which, in the event of the adoption of a decision to freeze funds, such as the decision adopted in respect of the applicant in the contested acts, it is not for the Council or the Courts of the European Union to verify whether or not the investigation of the person concerned by those restrictive measures in Ukraine was well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of those measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 125 and the case-law cited).

124    Lastly, the Council’s argument that, in essence, it is not for the Council to call into question the decisions of the Ukrainian courts, which benefit from a kind of presumption of legality, must be rejected. While it is true that it may rely on such decisions as evidence of the existence of criminal proceedings relating to allegations against the applicant of misappropriation of public funds, the same cannot be said as regards evidence of the proper conduct of those criminal proceedings, including as regards respect for his rights of defence and his right to effective judicial protection. As noted in paragraph 77 above, in order to ensure that there is a sufficiently solid factual basis for maintaining the applicant’s name on the list, the Council must verify not only whether there are ongoing judicial proceedings concerning the applicant for conduct that could be characterised as misappropriation of public funds, but also whether, in the context of those proceedings, those rights of the applicant were respected (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraphs 126 and 127 and the case-law cited).

125    That is particularly so where, as in this case, the Council was not in possession of certain decisions and certain information on which it intended to rely and, moreover, the applicant raised doubts as to whether his rights had been respected in the context of the adoption of the judicial decisions on which the Council intended to rely. In any event, it is not inconceivable that, having regard in particular to the observations submitted by the applicant, that institution might be obliged to seek clarification from the Ukrainian authorities regarding respect for those rights (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 128 and the case-law cited), which has not been the case here.

126    In the light of all of the foregoing considerations, it has not been established that the Council satisfied itself, prior to the adoption of the contested acts, that the Ukrainian judicial authorities complied with the applicant’s rights of defence and his right to effective judicial protection in the criminal proceedings on which the Council relied. It follows that, in deciding to maintain the applicant’s name on the list, the Council made an error of assessment.

127    In those circumstances, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law and arguments put forward by the applicant.

 Costs

128    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1.      Annuls Council Decision (CFSP) 2020/373 of 5 March 2020 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2020/370 of 5 March 2020 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Oleksandr Viktorovych Yanukovych was maintained on the list of persons, entities and bodies subject to those restrictive measures;

2.      Orders the Council of the European Union to pay the costs.

Delivered in open court in Luxembourg on 30 March 2022.

*      Language of the case: English.

1      Confidential information omitted.

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