# 62021TJ0195

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

21 December 2021 (
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  )

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(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 defence and the right to effective judicial protection)

In Case T‐195/21,

Oleksandr Viktorovych Klymenko, residing in Moscow (Russia), represented by M. Phelippeau, lawyer,

Oleksandr Viktorovych Klymenko

applicant,

v

Council of the European Union, represented by S. Lejeune and A. Vitro, acting as Agents,

Council of the European Union

defendant,

APPLICATION under Article 263 TFEU seeking annulment of Council Decision (CFSP) 2021/394 of 4 March 2021 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2021 L 77, p. 29), and of Council Implementing Regulation (EU) 2021/391 of 4 March 2021 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2021 L 77, p. 2), 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: E. Coulon,

gives the following

Judgment

Judgment

Background to the dispute

Background to the dispute

| 1 | The present case has arisen 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. |
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1

The present case has arisen 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 Klymenko, held the post of Minister for Revenue and Duties of Ukraine. |
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2

The applicant, Mr Oleksandr Viktorovych Klymenko, held the post of Minister for Revenue and Duties of Ukraine.

| 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). On the same date, the Council 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). |
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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). On the same date, the Council 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).

| 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. |
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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.’ |
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(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.’ |
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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. |
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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. |
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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 Decision 2014/119 and Regulation No 208/2014 are included on the list in the annex to that decision and in Annex I to that regulation (‘the list’) together with, inter alia, the reasons for their listing. Initially, the applicant’s name did not appear on the list. |
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8

The names of the persons covered by Decision 2014/119 and Regulation No 208/2014 are included on the list in the annex to that decision and in Annex I to that regulation (‘the list’) together with, inter alia, the reasons for their listing. Initially, the applicant’s name did not appear on the list.

| 9 | Decision 2014/119 and Regulation No 208/2014 were amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33) (together, ‘the April 2014 acts’). |
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9

Decision 2014/119 and Regulation No 208/2014 were amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33) (together, ‘the April 2014 acts’).

| 10 | By the April 2014 acts, the applicant’s name was added to the list, with the identifying information ‘former Minister of Revenues and Charges’ 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.’ |
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10

By the April 2014 acts, the applicant’s name was added to the list, with the identifying information ‘former Minister of Revenues and Charges’ 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.’

| 11 | By application lodged at the Court Registry on 30 June 2014, the applicant brought an action, registered as Case T‐494/14, seeking, inter alia, the annulment of the April 2014 acts, in so far as they concerned him. |
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11

By application lodged at the Court Registry on 30 June 2014, the applicant brought an action, registered as Case T‐494/14, seeking, inter alia, the annulment of the April 2014 acts, in so far as they concerned him.

| 12 | 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). |
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12

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).

| 13 | Decision 2015/143 specified the criteria, effective from 31 January 2015, for designating the persons covered 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 |
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13

Decision 2015/143 specified the criteria, effective from 31 January 2015, for designating the persons covered 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.’ |
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(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.’

| 14 | Regulation No 208/2014 was similarly amended by Regulation 2015/138. |
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14

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

| 15 | 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, first, replaced Article 5 of Decision 2014/119, extending the application of the restrictive measures, in so far as the applicant was concerned, until 6 March 2016 and, secondly, amended the annex to that decision. Implementing Regulation 2015/357 consequently amended Annex I to Regulation No 208/2014. |
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15

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, first, replaced Article 5 of Decision 2014/119, extending the application of the restrictive measures, in so far as the applicant was concerned, until 6 March 2016 and, secondly, amended the annex to that decision. Implementing Regulation 2015/357 consequently amended Annex I to Regulation No 208/2014.

| 16 | By the March 2015 acts, the applicant’s name was retained on the list, with the identifying information ‘former Minister of Revenues and Charges’ 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 the abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets.’ |
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16

By the March 2015 acts, the applicant’s name was retained on the list, with the identifying information ‘former Minister of Revenues and Charges’ 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 the abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets.’

| 17 | By application lodged at the Court Registry on 15 May 2015, the applicant brought an action, registered as Case T‐245/15, seeking, inter alia, the annulment of the March 2015 acts, in so far as they concerned him. |
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17

By application lodged at the Court Registry on 15 May 2015, the applicant brought an action, registered as Case T‐245/15, seeking, inter alia, the annulment of the March 2015 acts, in so far as they concerned him.

| 18 | 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’). |
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18

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’).

| 19 | By the March 2016 acts, the application of the restrictive measures at issue was extended with respect to the applicant, among others, until 6 March 2017. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended. |
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19

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

| 20 | On 28 April 2016, the applicant modified the form of order sought in Case T‐245/15, in accordance with Article 86 of the Rules of Procedure of the General Court, so as to request also the annulment of the March 2016 acts, in so far as they concerned him. |
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20

On 28 April 2016, the applicant modified the form of order sought in Case T‐245/15, in accordance with Article 86 of the Rules of Procedure of the General Court, so as to request also the annulment of the March 2016 acts, in so far as they concerned him.

| 21 | By order of 10 June 2016, Klymenko v Council (T‐494/14, EU:T:2016:360), adopted on the basis of Article 132 of the Rules of Procedure, the Court upheld the action referred to in paragraph 11 above, declaring it manifestly well founded, and therefore annulled the April 2014 acts, in so far as they related to the applicant. |
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21

By order of 10 June 2016, Klymenko v Council (T‐494/14, EU:T:2016:360), adopted on the basis of Article 132 of the Rules of Procedure, the Court upheld the action referred to in paragraph 11 above, declaring it manifestly well founded, and therefore annulled the April 2014 acts, in so far as they related to the applicant.

| 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’). |
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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 with respect to the applicant, among others, to 6 March 2018. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended. |
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23

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

| 24 | On 27 March 2017, the applicant again modified the form of order sought in Case T‐245/15 so as to request also the annulment of the March 2017 acts, in so far as they concerned him. |
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24

On 27 March 2017, the applicant again modified the form of order sought in Case T‐245/15 so as to request also the annulment of the March 2017 acts, in so far as they concerned him.

| 25 | By judgment of 8 November 2017, Klymenko v Council (T‐245/15, not published, EU:T:2017:792), the General Court dismissed all of the applicant’s claims, as referred to in paragraphs 17, 20 and 24 above. |
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25

By judgment of 8 November 2017, Klymenko v Council (T‐245/15, not published, EU:T:2017:792), the General Court dismissed all of the applicant’s claims, as referred to in paragraphs 17, 20 and 24 above.

| 26 | On 5 January 2018, the applicant brought an appeal before the Court of Justice, registered as Case C‐11/18 P, against the judgment of 8 November 2017, Klymenko v Council (T‐245/15, not published, EU:T:2017:792). |
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26

On 5 January 2018, the applicant brought an appeal before the Court of Justice, registered as Case C‐11/18 P, against the judgment of 8 November 2017, Klymenko v Council (T‐245/15, not published, EU:T:2017:792).

| 27 | 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’). |
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27

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’).

| 28 | By the March 2018 acts, the application of the restrictive measures at issue was extended with respect to the applicant, among others, to 6 March 2019. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended. |
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28

By the March 2018 acts, the application of the restrictive measures at issue was extended with respect to the applicant, among others, to 6 March 2019. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.

| 29 | By application lodged at the Court Registry on 30 April 2018, the applicant brought an action, registered as Case T‐274/18, seeking annulment of the March 2018 acts, in so far as they concerned him. |
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29

By application lodged at the Court Registry on 30 April 2018, the applicant brought an action, registered as Case T‐274/18, seeking annulment of the March 2018 acts, in so far as they concerned him.

| 30 | 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’). |
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30

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’).

| 31 | 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 retained on the list, with the same statement of reasons as that set out in paragraph 16 above, together with a statement that his rights of defence and right to effective judicial protection had been respected during the criminal proceedings on which the Council had relied. |
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31

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 retained on the list, with the same statement of reasons as that set out in paragraph 16 above, together with a statement that his rights of defence and right to effective judicial protection had been respected during the criminal proceedings on which the Council had relied.

| 32 | By application lodged at the Court Registry on 3 May 2019, the applicant brought an action, registered as Case T‐295/19, seeking annulment of the March 2019 acts, in so far as they concerned him. |
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32

By application lodged at the Court Registry on 3 May 2019, the applicant brought an action, registered as Case T‐295/19, seeking annulment of the March 2019 acts, in so far as they concerned him.

| 33 | By judgment of 11 July 2019, Klymenko v Council (T‐274/18, EU:T:2019:509), the General Court annulled the March 2018 acts in so far as they concerned the applicant. |
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33

By judgment of 11 July 2019, Klymenko v Council (T‐274/18, EU:T:2019:509), the General Court annulled the March 2018 acts in so far as they concerned the applicant.

| 34 | By judgment of 26 September 2019, Klymenko v Council (C‐11/18 P, not published, EU:C:2019:786), the Court of Justice set aside the judgment of 8 November 2017, Klymenko v Council (T‐245/15, not published, EU:T:2017:792) (see paragraph 25 above), and annulled the acts of March 2015, March 2016 and March 2017 in so far as they concerned the applicant. |
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34

By judgment of 26 September 2019, Klymenko v Council (C‐11/18 P, not published, EU:C:2019:786), the Court of Justice set aside the judgment of 8 November 2017, Klymenko v Council (T‐245/15, not published, EU:T:2017:792) (see paragraph 25 above), and annulled the acts of March 2015, March 2016 and March 2017 in so far as they concerned the applicant.

| 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 March 2020 acts’). |
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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 March 2020 acts’).

| 36 | By the March 2020 acts, the application of the restrictive measures at issue was extended until 6 March 2021 and the applicant’s name was retained on the list, with the same statement of reasons as that set out in paragraph 16 above, together with a statement that his rights of defence and right to effective judicial protection had been respected during the criminal proceedings on which the Council had relied. |
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36

By the March 2020 acts, the application of the restrictive measures at issue was extended until 6 March 2021 and the applicant’s name was retained on the list, with the same statement of reasons as that set out in paragraph 16 above, together with a statement that his rights of defence and right to effective judicial protection had been respected during the criminal proceedings on which the Council had relied.

| 37 | Between November 2020 and January 2021, 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 to 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. |
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37

Between November 2020 and January 2021, 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 to 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.

| 38 | By judgment of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52), the General Court annulled the March 2020 acts in so far as they concerned the applicant. |
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38

By judgment of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52), the General Court annulled the March 2020 acts in so far as they concerned the applicant.

| 39 | On 4 March 2021, the Council adopted Decision (CFSP) 2021/394 amending Decision 2014/119 (OJ 2021 L 77, p. 29) and Implementing Regulation (EU) 2021/391 implementing Regulation No 208/2014 (OJ 2021 L 77, p. 2) (together, ‘the contested acts’). |
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39

On 4 March 2021, the Council adopted Decision (CFSP) 2021/394 amending Decision 2014/119 (OJ 2021 L 77, p. 29) and Implementing Regulation (EU) 2021/391 implementing Regulation No 208/2014 (OJ 2021 L 77, p. 2) (together, ‘the contested acts’).

| 40 | By the contested acts, the application of the restrictive measures at issue was extended, with respect to the applicant, until 6 September 2021 and the applicant’s name was retained on the list, with the same statement of reasons as that set out in paragraph 16 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 Klymenko, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decisions of the investigating judge of 1 March 2017 and 5 October 2018 granting permission for a special investigation in absentia. The Council observes that the defence was notified of the completion of pre-trial investigations in 2017 and 2018, respectively, and has been provided with materials of the criminal proceedings for familiarisation since then. The review and examination by the defence of the large volume of materials available in relation to the pre-trial investigation into criminal proceedings is ongoing. The Council considers that the long period of familiarisation is to be attributed to the defence.’ |
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40

By the contested acts, the application of the restrictive measures at issue was extended, with respect to the applicant, until 6 September 2021 and the applicant’s name was retained on the list, with the same statement of reasons as that set out in paragraph 16 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 Klymenko, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decisions of the investigating judge of 1 March 2017 and 5 October 2018 granting permission for a special investigation in absentia. The Council observes that the defence was notified of the completion of pre-trial investigations in 2017 and 2018, respectively, and has been provided with materials of the criminal proceedings for familiarisation since then. The review and examination by the defence of the large volume of materials available in relation to the pre-trial investigation into criminal proceedings is ongoing. The Council considers that the long period of familiarisation is to be attributed to the defence.’

| 41 | By letter of 5 March 2021, the Council informed the applicant that the restrictive measures against him were being maintained. It replied to the observations which the applicant had set out in previous correspondence of 11 December 2020, 22 and 27 January 2021 and sent him the contested acts. It also informed him of the deadline for submitting observations prior to a decision being taken regarding the possible retention of his name on the list. |
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41

By letter of 5 March 2021, the Council informed the applicant that the restrictive measures against him were being maintained. It replied to the observations which the applicant had set out in previous correspondence of 11 December 2020, 22 and 27 January 2021 and sent him the contested acts. It also informed him of the deadline for submitting observations prior to a decision being taken regarding the possible retention of his name on the list.

Event subsequent to the bringing of the present action

Event subsequent to the bringing of the present action

| 42 | By letter of 14 September 2021, the Council informed the General Court that the restrictive measures at issue had expired with respect to the applicant and that the applicant’s name therefore no longer appeared on the list. |
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42

By letter of 14 September 2021, the Council informed the General Court that the restrictive measures at issue had expired with respect to the applicant and that the applicant’s name therefore no longer appeared on the list.

Procedure and forms of order sought

Procedure and forms of order sought

| 43 | By application lodged at the Court Registry on 8 April 2021, the applicant brought an action for annulment of the contested acts. |
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43

By application lodged at the Court Registry on 8 April 2021, the applicant brought an action for annulment of the contested acts.

| 44 | On 25 June 2021, the Council lodged its defence. |
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44

On 25 June 2021, the Council lodged its defence.

| 45 | As a member of the Fifth Chamber was unable to sit, the President of the Court designated another Judge to complete the Chamber. |
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45

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

| 46 | The applicant did not lodge a reply within the prescribed period. |
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46

The applicant did not lodge a reply within the prescribed period.

| 47 | On 31 August 2021, the written part of the procedure was closed. |
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47

On 31 August 2021, the written part of the procedure was closed.

| 48 | Under Article 106(3) of the Rules of Procedure, if no request for a hearing has been submitted by the parties within three weeks of service of notification of the conclusion of the written procedure, the Court may decide to rule on the action without an oral procedure. In the present case, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, in the absence of such a request, to give a decision on the action without an oral procedure. |
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48

Under Article 106(3) of the Rules of Procedure, if no request for a hearing has been submitted by the parties within three weeks of service of notification of the conclusion of the written procedure, the Court may decide to rule on the action without an oral procedure. In the present case, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, in the absence of such a request, to give a decision on the action without an oral procedure.

| 49 | The applicant claims that the Court should:





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

49

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. |
| --- | --- |

–

order the Council to pay the costs.

| 50 | The Council contends that the Court should:





  – | dismiss the action; |
| --- | --- | --- |

50

The Council contends that the Court should:

–

dismiss the action;

| – | in the alternative, should the contested acts be annulled as regards the applicant, order that the effects of Decision 2021/394 be maintained until the partial annulment of Implementing Regulation 2021/391 takes effect; |
| --- | --- |

–

in the alternative, should the contested acts be annulled as regards the applicant, order that the effects of Decision 2021/394 be maintained until the partial annulment of Implementing Regulation 2021/391 takes effect;

| – | order the applicant to pay the costs. |
| --- | --- |

–

order the applicant to pay the costs.

Law

Law

| 51 | In support of his action for annulment, the applicant puts forward four pleas in law alleging, first, infringement of the duty to state reasons, secondly, a manifest error of assessment and misuse of powers, thirdly, in essence, infringement of fundamental rights in the adoption of the contest acts, and, fourthly, lack of a legal basis. |
| --- | --- |

51

In support of his action for annulment, the applicant puts forward four pleas in law alleging, first, infringement of the duty to state reasons, secondly, a manifest error of assessment and misuse of powers, thirdly, in essence, infringement of fundamental rights in the adoption of the contest acts, and, fourthly, lack of a legal basis.

| 52 | First of all, it is appropriate to examine the second plea, in so far as it alleges that the Council failed to verify that the Ukrainian authorities had observed the applicant’s rights of defence and his right to effective judicial protection, and that, as a result, the Council made an error of assessment on adopting the contested acts. |
| --- | --- |

52

First of all, it is appropriate to examine the second plea, in so far as it alleges that the Council failed to verify that the Ukrainian authorities had observed the applicant’s rights of defence and his right to effective judicial protection, and that, as a result, the Council made an error of assessment on adopting the contested acts.

| 53 | In the context of that plea in law, the applicant submits, inter alia, that the Council failed to ascertain whether the criminal proceedings against him and bearing, respectively, reference numbers 42017000000000113 (‘Case 113’) and 42014000000000521 (‘Case 521’), on which it relied when deciding to maintain the restrictive measures against him, were taken in compliance with his rights of defence and right to effective judicial protection. |
| --- | --- |

53

In the context of that plea in law, the applicant submits, inter alia, that the Council failed to ascertain whether the criminal proceedings against him and bearing, respectively, reference numbers 42017000000000113 (‘Case 113’) and 42014000000000521 (‘Case 521’), on which it relied when deciding to maintain the restrictive measures against him, were taken in compliance with his rights of defence and right to effective judicial protection.

| 54 | According to the applicant, the PGO’s replies to the questions put by the Council concerning observance of his rights of defence and right to effective judicial protection, including observance by the Ukrainian authorities of the reasonable time principle, the state of the criminal proceedings concerning him, and the competence of the various investigating authorities concerned, the relations between them and the transfer of investigations from one to the other, were unsatisfactory. Therefore, in essence, he criticises the Council for having carried out insufficient checks and for having disregarded the evidence which he provided to it of the procedural irregularities committed by the Ukrainian authorities and their lack of independence. |
| --- | --- |

54

According to the applicant, the PGO’s replies to the questions put by the Council concerning observance of his rights of defence and right to effective judicial protection, including observance by the Ukrainian authorities of the reasonable time principle, the state of the criminal proceedings concerning him, and the competence of the various investigating authorities concerned, the relations between them and the transfer of investigations from one to the other, were unsatisfactory. Therefore, in essence, he criticises the Council for having carried out insufficient checks and for having disregarded the evidence which he provided to it of the procedural irregularities committed by the Ukrainian authorities and their lack of independence.

| 55 | First, he submits that his name was not on the list of internationally wanted persons drawn up by the International Criminal Police Organisation (Interpol) (the ‘Interpol wanted list’), as was found by the Appeals Chamber of the Ukrainian High Anti-Corruption Court in its judgment of 13 May 2020 (‘the judgment of 13 May 2020’) which set aside a preventive detention measure against him, on the ground that one of the conditions laid down in the Ukrainian Code of Criminal Procedure (‘Code of Criminal Procedure’) for the adoption of such a decision had not been met, which is that the name of the person concerned must have been entered on an international list of wanted persons. That judgment is also significant when assessing the decision of the investigating judge of the Pechersk District Court (Kiev) (‘the Pechersk District Court’) of 5 October 2018 (‘the decision of the investigating judge of 5 October 2018’), authorising the opening of a special investigation against him in absentia, to the extent that the adoption of that decision also presupposed, inter alia, that the applicant’s name was entered on an international list of wanted persons. |
| --- | --- |

55

First, he submits that his name was not on the list of internationally wanted persons drawn up by the International Criminal Police Organisation (Interpol) (the ‘Interpol wanted list’), as was found by the Appeals Chamber of the Ukrainian High Anti-Corruption Court in its judgment of 13 May 2020 (‘the judgment of 13 May 2020’) which set aside a preventive detention measure against him, on the ground that one of the conditions laid down in the Ukrainian Code of Criminal Procedure (‘Code of Criminal Procedure’) for the adoption of such a decision had not been met, which is that the name of the person concerned must have been entered on an international list of wanted persons. That judgment is also significant when assessing the decision of the investigating judge of the Pechersk District Court (Kiev) (‘the Pechersk District Court’) of 5 October 2018 (‘the decision of the investigating judge of 5 October 2018’), authorising the opening of a special investigation against him in absentia, to the extent that the adoption of that decision also presupposed, inter alia, that the applicant’s name was entered on an international list of wanted persons.

in absentia

| 56 | Secondly, the applicant considers that the duration of the proceedings brought against him in Ukraine is unreasonable, within the meaning of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as interpreted by the European Court of Human Rights (‘the ECtHR’) and that the abnormal length of the criminal proceedings, on which the Council relied without carrying out any checks, is attributable only to the authorities in charge of those proceedings, which have not taken any decision to refer the case to a court in order to prolong the freezing of the funds. |
| --- | --- |

56

Secondly, the applicant considers that the duration of the proceedings brought against him in Ukraine is unreasonable, within the meaning of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as interpreted by the European Court of Human Rights (‘the ECtHR’) and that the abnormal length of the criminal proceedings, on which the Council relied without carrying out any checks, is attributable only to the authorities in charge of those proceedings, which have not taken any decision to refer the case to a court in order to prolong the freezing of the funds.

| 57 | Thirdly, the applicant complains that the Council failed to carry out any assessment as to whether his rights of defence and right to effective judicial protection had been respected in connection with the transfer of the pre-trial investigations, which had already been closed, to the National Anti-Corruption Bureau of Ukraine, more than six years after they had been opened, despite the Bureau being active from April 2015 onwards. |
| --- | --- |

57

Thirdly, the applicant complains that the Council failed to carry out any assessment as to whether his rights of defence and right to effective judicial protection had been respected in connection with the transfer of the pre-trial investigations, which had already been closed, to the National Anti-Corruption Bureau of Ukraine, more than six years after they had been opened, despite the Bureau being active from April 2015 onwards.

| 58 | Fourthly, the applicant submits that the decision of the investigating judge of 5 October 2018 was not adopted in compliance with his rights of defence and right to effective judicial protection. |
| --- | --- |

58

Fourthly, the applicant submits that the decision of the investigating judge of 5 October 2018 was not adopted in compliance with his rights of defence and right to effective judicial protection.

| 59 | Fifthly, the applicant submits that, in view of the irregularities committed by the Ukrainian authorities, there could be no assurance that the investigations had been carried out in compliance with those rights and, therefore, that the Council was not entitled to rely only on the information provided by the PGO, which is appointed by the government and which, against a backdrop of political score-settling, has been publicly guilty of repeated infringements of his fundamental rights. |
| --- | --- |

59

Fifthly, the applicant submits that, in view of the irregularities committed by the Ukrainian authorities, there could be no assurance that the investigations had been carried out in compliance with those rights and, therefore, that the Council was not entitled to rely only on the information provided by the PGO, which is appointed by the government and which, against a backdrop of political score-settling, has been publicly guilty of repeated infringements of his fundamental rights.

| 60 | In short, the Council has failed to fulfil its obligations to ascertain whether the applicant’s rights of defence and right to effective judicial protection were respected, despite the fact that the applicant has repeatedly complained that those rights have been infringed. |
| --- | --- |

60

In short, the Council has failed to fulfil its obligations to ascertain whether the applicant’s rights of defence and right to effective judicial protection were respected, despite the fact that the applicant has repeatedly complained that those rights have been infringed.

| 61 | The Council submits that it is clear from the correspondence with the applicant that it took account of his observations, verified their validity, also by asking specific questions and obtaining clarifications from the Ukrainian authorities and that, in the light of the information received from them, the Council was entitled to consider, first, that the applicant’s rights of defence and right to effective judicial protection had not been infringed, and, secondly, that there were sufficient grounds for maintaining his name on the list. |
| --- | --- |

61

The Council submits that it is clear from the correspondence with the applicant that it took account of his observations, verified their validity, also by asking specific questions and obtaining clarifications from the Ukrainian authorities and that, in the light of the information received from them, the Council was entitled to consider, first, that the applicant’s rights of defence and right to effective judicial protection had not been infringed, and, secondly, that there were sufficient grounds for maintaining his name on the list.

| 62 | For the rest, the applicant exercised his right to be represented by a lawyer in Ukraine in the proceedings against him and made use of his absence from the country to invoke procedural defects and to avoid appearing before the competent courts. Furthermore, the Code of Criminal Procedure provided the applicant with means of opposition or challenge and it is clear from the file that he put those to good use, with the result that some of his appeals have been successful. |
| --- | --- |

62

For the rest, the applicant exercised his right to be represented by a lawyer in Ukraine in the proceedings against him and made use of his absence from the country to invoke procedural defects and to avoid appearing before the competent courts. Furthermore, the Code of Criminal Procedure provided the applicant with means of opposition or challenge and it is clear from the file that he put those to good use, with the result that some of his appeals have been successful.

| 63 | As regards the applicant’s arguments concerning the purportedly excessive length of the pre-trial investigations and the fact that he has not been charged, the Council contends that it requested and obtained clarifications on the matter from the Ukrainian authorities; that the investigations in Cases 113 and 521 were closed in 2017 and October 2018 respectively; and that the applicant’s defence team is familiarising itself with the case file, which shows that the proceedings are progressing. In that regard, the Council states that familiarisation with the contents of the file has been delayed by the complexity of the case, the significant number of documents on file, the health crisis and the fact that the applicant is not in Ukraine. Next, the Council submits that, under the Code of Criminal Procedure, the Ukrainian authorities are not required to end the criminal proceedings at issue, given that the 2017 reform of that code, which created a time limit for the conduct of pre-trial investigations, post-dates the inclusion of the applicant’s name on the register of suspects and, therefore, does not apply to those proceedings. |
| --- | --- |

63

As regards the applicant’s arguments concerning the purportedly excessive length of the pre-trial investigations and the fact that he has not been charged, the Council contends that it requested and obtained clarifications on the matter from the Ukrainian authorities; that the investigations in Cases 113 and 521 were closed in 2017 and October 2018 respectively; and that the applicant’s defence team is familiarising itself with the case file, which shows that the proceedings are progressing. In that regard, the Council states that familiarisation with the contents of the file has been delayed by the complexity of the case, the significant number of documents on file, the health crisis and the fact that the applicant is not in Ukraine. Next, the Council submits that, under the Code of Criminal Procedure, the Ukrainian authorities are not required to end the criminal proceedings at issue, given that the 2017 reform of that code, which created a time limit for the conduct of pre-trial investigations, post-dates the inclusion of the applicant’s name on the register of suspects and, therefore, does not apply to those proceedings.

| 64 | Lastly, with regard to the judgment of 13 May 2020, the Council submits that that judgment does not affect Case 113 and that a preventive detention measure also exists in Case 521, although it cannot be implemented due to the applicant leaving the country. In any event, that judgment confirms that the applicant’s rights were protected. |
| --- | --- |

64

Lastly, with regard to the judgment of 13 May 2020, the Council submits that that judgment does not affect Case 113 and that a preventive detention measure also exists in Case 521, although it cannot be implemented due to the applicant leaving the country. In any event, that judgment confirms that the applicant’s rights were protected.

| 65 | 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 and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‐303/19, not published, EU:T:2021:334, paragraph 73 and the case-law cited). |
| --- | --- |

65

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 and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‐303/19, not published, EU:T:2021:334, paragraph 73 and the case-law cited).

| 66 | 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 judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 64 and the case-law cited). |
| --- | --- |

66

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 judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 64 and the case-law cited).

| 67 | 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 the 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 whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 65 and the case-law cited). |
| --- | --- |

67

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 the 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 whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 65 and the case-law cited).

| 68 | The adoption and the maintenance of restrictive measures, such as those laid down in Decision 2014/119 and Regulation No 208/2014, 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 judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 66 and the case-law cited). |
| --- | --- |

68

The adoption and the maintenance of restrictive measures, such as those laid down in Decision 2014/119 and Regulation No 208/2014, 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 judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 66 and the case-law cited).

| 69 | In addition, while, under the listing criterion, such as that referred to in paragraph 13 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to observe the rights of defence and the right to effective judicial protection means that it must satisfy itself that those rights were observed by the authorities of the third State which adopted that decision (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 67 and the case-law cited). |
| --- | --- |

69

In addition, while, under the listing criterion, such as that referred to in paragraph 13 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to observe the rights of defence and the right to effective judicial protection means that it must satisfy itself that those rights were observed by the authorities of the third State which adopted that decision (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 67 and the case-law cited).

| 70 | 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 rests on a sufficiently solid factual basis before having itself verified whether the rights of defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 68 and the case-law cited). |
| --- | --- |

70

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 rests on a sufficiently solid factual basis before having itself verified whether the rights of defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 68 and the case-law cited).

| 71 | Moreover, although it is true that the fact that a third State is among the States which have acceded to the ECHR entails review, by the ECtHR, of the fundamental rights guaranteed by that convention, 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 70 above (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 69 and the case-law cited). |
| --- | --- |

71

Moreover, although it is true that the fact that a third State is among the States which have acceded to the ECHR entails review, by the ECtHR, of the fundamental rights guaranteed by that convention, 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 70 above (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 69 and the case-law cited).

| 72 | 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 has been adopted in accordance with the rights of 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 whether the decision of the third State on which those measures are based was taken in accordance with those rights (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 70 and the case-law cited). |
| --- | --- |

72

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 has been adopted in accordance with the rights of 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 whether the decision of the third State on which those measures are based was taken in accordance with those rights (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 70 and the case-law cited).

| 73 | 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 why it considers that that decision of the third State was adopted in accordance with those rights (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 71 and the case-law cited). |
| --- | --- |

73

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 why it considers that that decision of the third State was adopted in accordance with those rights (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 71 and the case-law cited).

| 74 | 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 to consolidate and support the rule of law and respect for human rights in Ukraine (see paragraph 4 above), based on 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). |
| --- | --- |

74

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 to consolidate and support the rule of law and respect for human rights in Ukraine (see paragraph 4 above), based on 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).

| 75 | 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. |
| --- | --- |

75

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.

| 76 | 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 40 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been the case. |
| --- | --- |

76

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 40 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been the case.

| 77 | The examination of the merits of the statement of reasons, which concerns the substantive legality of the contested acts and consists, in the present 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 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 74 and the case-law cited). |
| --- | --- |

77

The examination of the merits of the statement of reasons, which concerns the substantive legality of the contested acts and consists, in the present 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 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 74 and the case-law cited).

| 78 | 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 specified in Decision 2015/143, and in Article 3 of Regulation No 208/2014, as specified in Regulation 2015/138 (see paragraphs 13 and 14 above). That criterion covers persons who have been identified as responsible for the misappropriation of Ukrainian State funds, including persons subject to investigation by the Ukrainian authorities. |
| --- | --- |

78

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 specified in Decision 2015/143, and in Article 3 of Regulation No 208/2014, as specified in Regulation 2015/138 (see paragraphs 13 and 14 above). That criterion covers persons who have been identified as responsible for the misappropriation of Ukrainian State funds, including persons subject to investigation by the Ukrainian authorities.

| 79 | It is apparent from the reasoning set out in the contested acts, outlined in paragraph 40 above, and from the letter of 5 March 2021, that the Council, in deciding to maintain the applicant’s name on the list, relied on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences concerning the misappropriation of public funds or assets and connected with an abuse of office, evidenced, inter alia, by the PGO’s letters and by various court decisions. |
| --- | --- |

79

It is apparent from the reasoning set out in the contested acts, outlined in paragraph 40 above, and from the letter of 5 March 2021, that the Council, in deciding to maintain the applicant’s name on the list, relied on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences concerning the misappropriation of public funds or assets and connected with an abuse of office, evidenced, inter alia, by the PGO’s letters and by various court decisions.

| 80 | The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgments of 26 September 2019, Klymenko v Council (C‐11/18 P, not published, EU:C:2019:786); of 25 June 2020, Klymenko v Council (T‐295/19, EU:T:2020:287); and of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52), on the decision of the Ukrainian authorities to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of Ukrainian State funds. |
| --- | --- |

80

The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgments of 26 September 2019, Klymenko v Council (C‐11/18 P, not published, EU:C:2019:786); of 25 June 2020, Klymenko v Council (T‐295/19, EU:T:2020:287); and of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52), on the decision of the Ukrainian authorities to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of Ukrainian State funds.

| 81 | 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 already done on the adoption of the March 2019 acts and the March 2020 acts – a new section entirely devoted to the rights of defence and the right to effective judicial protection, which is divided into two parts. |
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81

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 already done on the adoption of the March 2019 acts and the March 2020 acts – a new section entirely devoted to the rights of defence and the right to effective judicial protection, which is divided into two parts.

| 82 | The first part contains a simple, general reference to the rights of defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, first of all, reference is made 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. Next, reference is made to Article 303 of that code, which distinguishes between decisions and omissions that can be challenged during the pre-trial proceedings and decisions, acts and omissions that can be considered in court during preparatory proceedings. In addition, it is stated, first, that, under Article 306 of that code, 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 the code specifies which decisions of investigating judges may be challenged on appeal. Lastly, it is stated that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible subject to a ruling by the investigating judge or a court. |
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82

The first part contains a simple, general reference to the rights of defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, first of all, reference is made 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. Next, reference is made to Article 303 of that code, which distinguishes between decisions and omissions that can be challenged during the pre-trial proceedings and decisions, acts and omissions that can be considered in court during preparatory proceedings. In addition, it is stated, first, that, under Article 306 of that code, 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 the code specifies which decisions of investigating judges may be challenged on appeal. Lastly, it is stated that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible subject to a ruling by the investigating judge or a court.

| 83 | The second part of that section concerns respect for the rights of defence and the right to effective judicial protection of each person listed. As regards the applicant specifically, it is stated that, according to the information on the Council’s file, his rights of defence and his right to effective judicial protection, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings at issue, on which the Council relied, as is demonstrated in particular by ‘the decisions of the investigating judge of 1 March 2017 and 5 October 2018 granting permission for a special investigation in absentia’. In addition, the Council observes that ‘the defence was notified of the completion of pre-trial investigations in 2017 and 2018, respectively, and has been provided with materials of the criminal proceedings for familiarisation since then’, that the review and examination by the applicant’s defence of the large volume of materials available in relation to the pre-trial investigation into criminal proceedings was ongoing and that the long period of familiarisation was to be attributed to the defence (see paragraph 40 above). |
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83

The second part of that section concerns respect for the rights of defence and the right to effective judicial protection of each person listed. As regards the applicant specifically, it is stated that, according to the information on the Council’s file, his rights of defence and his right to effective judicial protection, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings at issue, on which the Council relied, as is demonstrated in particular by ‘the decisions of the investigating judge of 1 March 2017 and 5 October 2018 granting permission for a special investigation in absentia’. In addition, the Council observes that ‘the defence was notified of the completion of pre-trial investigations in 2017 and 2018, respectively, and has been provided with materials of the criminal proceedings for familiarisation since then’, that the review and examination by the applicant’s defence of the large volume of materials available in relation to the pre-trial investigation into criminal proceedings was ongoing and that the long period of familiarisation was to be attributed to the defence (see paragraph 40 above).

| 84 | In the letter of 5 March 2021 addressed to the applicant (see paragraph 41 above), first of all, the Council stated that the information obtained from the PGO and that on the case file established that the applicant remained subject to criminal proceedings in Ukraine for misappropriation of public funds or assets. Next, the Council first stated that the judgment of 13 May 2020 had confirmed that the notice of suspicion had been validly served in Case 113 and that the applicant’s status was therefore that of suspect. Secondly, with regard to the allegedly excessive duration of the pre-trial investigations, the Council contended that the provisions of the Code of Criminal Procedure requiring the prosecutor to close the proceedings when the pre-trial investigation period had expired came into force on 3 October 2017, in other words, after the applicant’s name had been entered on the register of suspects and that, as a consequence, they did not apply to Cases 113 and 521. Furthermore, the Council stated that the defence’s familiarisation period was not part of the time frame for pre-trial investigations, meaning that possible delays in that phase of the proceedings could not be attributed to the Ukrainian investigating authorities. Lastly, the Council concluded that it was not for the Council to verify whether or not the criminal investigations were well founded, but only to verify whether that was the case in relation to the decision to impose restrictive measures in the light of the documents on which that decision was based. |
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84

In the letter of 5 March 2021 addressed to the applicant (see paragraph 41 above), first of all, the Council stated that the information obtained from the PGO and that on the case file established that the applicant remained subject to criminal proceedings in Ukraine for misappropriation of public funds or assets. Next, the Council first stated that the judgment of 13 May 2020 had confirmed that the notice of suspicion had been validly served in Case 113 and that the applicant’s status was therefore that of suspect. Secondly, with regard to the allegedly excessive duration of the pre-trial investigations, the Council contended that the provisions of the Code of Criminal Procedure requiring the prosecutor to close the proceedings when the pre-trial investigation period had expired came into force on 3 October 2017, in other words, after the applicant’s name had been entered on the register of suspects and that, as a consequence, they did not apply to Cases 113 and 521. Furthermore, the Council stated that the defence’s familiarisation period was not part of the time frame for pre-trial investigations, meaning that possible delays in that phase of the proceedings could not be attributed to the Ukrainian investigating authorities. Lastly, the Council concluded that it was not for the Council to verify whether or not the criminal investigations were well founded, but only to verify whether that was the case in relation to the decision to impose restrictive measures in the light of the documents on which that decision was based.

| 85 | Thus, it appears from a combined reading of the grounds set out in the contested acts and in the letter of 5 March 2021 that the Council attests to having verified compliance with the applicant’s rights of defence and right to effective judicial protection in the two sets of proceedings cited in paragraph 84 above. |
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85

Thus, it appears from a combined reading of the grounds set out in the contested acts and in the letter of 5 March 2021 that the Council attests to having verified compliance with the applicant’s rights of defence and right to effective judicial protection in the two sets of proceedings cited in paragraph 84 above.

| 86 | In that regard, it must be observed, from the outset, that the Council has failed to demonstrate how the decisions of the investigating judge of the Pechersk District Court, referred to in paragraph 83 above, are evidence that the applicant’s rights of defence and right to effective judicial protection in Cases 113 and 521 have been observed. As stated in paragraphs 67 to 69 above, in the present case, the Council was required, 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 and abuse of office by a public office-holder, allegedly committed by the applicant, had been taken in compliance with the applicant’s said rights (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 83 and the case-law cited). |
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86

In that regard, it must be observed, from the outset, that the Council has failed to demonstrate how the decisions of the investigating judge of the Pechersk District Court, referred to in paragraph 83 above, are evidence that the applicant’s rights of defence and right to effective judicial protection in Cases 113 and 521 have been observed. As stated in paragraphs 67 to 69 above, in the present case, the Council was required, 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 and abuse of office by a public office-holder, allegedly committed by the applicant, had been taken in compliance with the applicant’s said rights (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 83 and the case-law cited).

| 87 | From that perspective, the judicial decisions mentioned in paragraph 83 above cannot be identified as being decisions to initiate and conduct an investigation procedure justifying the maintenance of the restrictive measures at issue. That said, it may be accepted that, from a substantive point of view, since those decisions were delivered by a court, namely by the investigating judge of the Pechersk District 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, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 84 and the case-law cited). |
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87

From that perspective, the judicial decisions mentioned in paragraph 83 above cannot be identified as being decisions to initiate and conduct an investigation procedure justifying the maintenance of the restrictive measures at issue. That said, it may be accepted that, from a substantive point of view, since those decisions were delivered by a court, namely by the investigating judge of the Pechersk District 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, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 84 and the case-law cited).

| 88 | It must therefore be ascertained whether the Council was entitled to consider that those decisions, together with the fact that the process of familiarising the applicant’s defence with the contents of the file was under way at the time the contested acts were adopted and that the length of that process was, in essence, attributable to the applicant, established that the applicant’s rights of defence and right to effective judicial protection had been respected. |
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88

It must therefore be ascertained whether the Council was entitled to consider that those decisions, together with the fact that the process of familiarising the applicant’s defence with the contents of the file was under way at the time the contested acts were adopted and that the length of that process was, in essence, attributable to the applicant, established that the applicant’s rights of defence and right to effective judicial protection had been respected.

| 89 | As regards, in the first place, the decisions of the investigating judge of 1 March 2017 and 5 October 2018 concerning the opening of a special investigation in absentia in Cases 113 and 521 respectively, it should be observed that those decisions were taken four years and two and a half years, respectively, before the adoption of the contested acts. It follows that those decisions are insufficient to establish that those proceedings, on which the Council relies in order to maintain the restrictive measures at issue in respect of the applicant for the period from March to September 2021, were conducted in compliance with his rights of defence and right to effective judicial protection. |
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89

As regards, in the first place, the decisions of the investigating judge of 1 March 2017 and 5 October 2018 concerning the opening of a special investigation in absentia in Cases 113 and 521 respectively, it should be observed that those decisions were taken four years and two and a half years, respectively, before the adoption of the contested acts. It follows that those decisions are insufficient to establish that those proceedings, on which the Council relies in order to maintain the restrictive measures at issue in respect of the applicant for the period from March to September 2021, were conducted in compliance with his rights of defence and right to effective judicial protection.

in absentia

| 90 | Moreover, the General Court has already had occasion to rule on both the decision of the investigating judge of 1 March 2017 and that of 5 October 2018 in the cases giving rise to the judgments of 25 June 2020, Klymenko v Council (T‐295/19, EU:T:2020:287, paragraphs 78 to 91), and of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52, paragraphs 83, 93 and 94), which have not been appealed before the Court of Justice, holding that those decisions did not establish that the applicant’s rights of defence and his right to an effective judicial protection had been respected in the proceedings in question. It must be emphasised that the Court cannot completely disregard the reasoning that it expounded in those two cases, which involved the same parties and raised essentially the same legal issues. |
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90

Moreover, the General Court has already had occasion to rule on both the decision of the investigating judge of 1 March 2017 and that of 5 October 2018 in the cases giving rise to the judgments of 25 June 2020, Klymenko v Council (T‐295/19, EU:T:2020:287, paragraphs 78 to 91), and of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52, paragraphs 83, 93 and 94), which have not been appealed before the Court of Justice, holding that those decisions did not establish that the applicant’s rights of defence and his right to an effective judicial protection had been respected in the proceedings in question. It must be emphasised that the Court cannot completely disregard the reasoning that it expounded in those two cases, which involved the same parties and raised essentially the same legal issues.

| 91 | With particular regard to the decision of the investigating judge of 5 October 2018, taken in the context of Case 521, it should be recalled, first, that the Court noted that the Council had not ascertained the extent to which that decision, which was not open to appeal, was consistent with the provisions of the Code of Criminal Procedure expressly referred to in the first part of the section of the contested acts that deals with the rights of the defence and the right to effective judicial protection (see paragraph 82 above). Secondly, the Court found that it was not apparent from the documents in the file why the applicant had not been represented by lawyers he had appointed himself and, in that regard, the Council had not fulfilled its obligation to ensure observance with the applicant’s rights of defence. Thirdly, the Court held that, despite all the documents the applicant had sent to the Council showing that his name was not on the Interpol wanted list, the Council had simply accepted the mere assertions from the PGO and the investigating judge in that regard, although inclusion on an inter-State or international wanted persons list is one of the two conditions that had to be established by the public prosecutor when seeking permission to initiate in absentia proceedings (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‐295/19, EU:T:2020:287, paragraphs 82 to 88). |
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91

With particular regard to the decision of the investigating judge of 5 October 2018, taken in the context of Case 521, it should be recalled, first, that the Court noted that the Council had not ascertained the extent to which that decision, which was not open to appeal, was consistent with the provisions of the Code of Criminal Procedure expressly referred to in the first part of the section of the contested acts that deals with the rights of the defence and the right to effective judicial protection (see paragraph 82 above). Secondly, the Court found that it was not apparent from the documents in the file why the applicant had not been represented by lawyers he had appointed himself and, in that regard, the Council had not fulfilled its obligation to ensure observance with the applicant’s rights of defence. Thirdly, the Court held that, despite all the documents the applicant had sent to the Council showing that his name was not on the Interpol wanted list, the Council had simply accepted the mere assertions from the PGO and the investigating judge in that regard, although inclusion on an inter-State or international wanted persons list is one of the two conditions that had to be established by the public prosecutor when seeking permission to initiate in absentia proceedings (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‐295/19, EU:T:2020:287, paragraphs 82 to 88).

in absentia

| 92 | The same goes for Case 113. In those proceedings, the Court also noted that the Council had not explained the reasons that had led it to accept the mere assertions of the PGO and the investigating judge regarding the inclusion of the applicant’s name on an international list of wanted persons, despite the documents showing that his name was not on the Interpol wanted list. According to the Court, the information available to the Council did not enable it to verify whether the prosecutor had complied with the condition regarding inclusion on such a list and, consequently, whether the investigating judge, when adopting his decision, had respected the applicant’s rights of defence and right to effective judicial protection. In that regard, the Court also observed that it followed from the judgment of 13 May 2020, which post-dated the adoption of the March 2020 acts, but not the adoption of the contested acts, first, that the mere fact that the prosecutor took a procedural decision in the form of a resolution to place a person on the Interpol wanted list was not sufficient, it being also a requirement that all necessary measures were taken to implement such a resolution, which had in no way been proven by the prosecutor and, secondly, that such an interpretation of Article 193‐6 of the Code of Criminal Procedure had already been made by the Appeals Chamber of the Ukrainian High Anti-Corruption Court in several court decisions taken between September 2019 and February 2020 (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraphs 86 to 92) and should, therefore, have been particularly familiar to the prosecutor. |
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92

The same goes for Case 113. In those proceedings, the Court also noted that the Council had not explained the reasons that had led it to accept the mere assertions of the PGO and the investigating judge regarding the inclusion of the applicant’s name on an international list of wanted persons, despite the documents showing that his name was not on the Interpol wanted list. According to the Court, the information available to the Council did not enable it to verify whether the prosecutor had complied with the condition regarding inclusion on such a list and, consequently, whether the investigating judge, when adopting his decision, had respected the applicant’s rights of defence and right to effective judicial protection. In that regard, the Court also observed that it followed from the judgment of 13 May 2020, which post-dated the adoption of the March 2020 acts, but not the adoption of the contested acts, first, that the mere fact that the prosecutor took a procedural decision in the form of a resolution to place a person on the Interpol wanted list was not sufficient, it being also a requirement that all necessary measures were taken to implement such a resolution, which had in no way been proven by the prosecutor and, secondly, that such an interpretation of Article 193‐6 of the Code of Criminal Procedure had already been made by the Appeals Chamber of the Ukrainian High Anti-Corruption Court in several court decisions taken between September 2019 and February 2020 (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraphs 86 to 92) and should, therefore, have been particularly familiar to the prosecutor.

| 93 | In the present case, it must be noted that, although the judgment of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52), was pronounced before the adoption of the contested acts, the Council has not put forward any evidence in its pleadings enabling the Court to reach a different conclusion from that reached in the judgments of 25 June 2020, Klymenko v Council (T‐295/19, EU:T:2020:287), and of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52), as to the probative value of the decisions of the investigating judge of 1 March 2017 and 5 October 2018. |
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93

In the present case, it must be noted that, although the judgment of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52), was pronounced before the adoption of the contested acts, the Council has not put forward any evidence in its pleadings enabling the Court to reach a different conclusion from that reached in the judgments of 25 June 2020, Klymenko v Council (T‐295/19, EU:T:2020:287), and of 3 February 2021, Klymenko v Council (T‐258/20, EU:T:2021:52), as to the probative value of the decisions of the investigating judge of 1 March 2017 and 5 October 2018.

| 94 | In any event, it must also be noted that the Ukrainian judicial decisions referred to in paragraph 83 above fall within the scope of the criminal proceedings that justified the inclusion and maintenance of the applicant’s name on the list and are merely incidental in relation to those proceedings since they are procedural in nature. Such decisions, which may at most serve to establish the existence of a sufficiently solid factual basis, namely that, in accordance with the applicable listing criterion, the applicant was subject to criminal proceedings concerning, inter alia, an offence of misappropriation of Ukrainian State funds or assets, are not ontologically capable, in themselves, 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 founded was, in essence, taken in accordance with his rights of defence and his right to effective judicial protection, which it falls to the Council to verify, in accordance with the case-law referred to in paragraph 70 above (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 94 and the case-law cited). |
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94

In any event, it must also be noted that the Ukrainian judicial decisions referred to in paragraph 83 above fall within the scope of the criminal proceedings that justified the inclusion and maintenance of the applicant’s name on the list and are merely incidental in relation to those proceedings since they are procedural in nature. Such decisions, which may at most serve to establish the existence of a sufficiently solid factual basis, namely that, in accordance with the applicable listing criterion, the applicant was subject to criminal proceedings concerning, inter alia, an offence of misappropriation of Ukrainian State funds or assets, are not ontologically capable, in themselves, 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 founded was, in essence, taken in accordance with his rights of defence and his right to effective judicial protection, which it falls to the Council to verify, in accordance with the case-law referred to in paragraph 70 above (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 94 and the case-law cited).

| 95 | In any event, the Council does not refer to any document in the case file leading to the adoption of the contested acts that shows that it examined the decisions of the Ukrainian courts invoked and from which it was able to conclude that the essence of the applicant’s procedural rights had been observed. |
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95

In any event, the Council does not refer to any document in the case file leading to the adoption of the contested acts that shows that it examined the decisions of the Ukrainian courts invoked and from which it was able to conclude that the essence of the applicant’s procedural rights had been observed.

| 96 | The mere reference by the Council to letters and repeated statements by 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 decision to maintain his name on the list to be regarded as having a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 70 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). |
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96

The mere reference by the Council to letters and repeated statements by 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 decision to maintain his name on the list to be regarded as having a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 70 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).

| 97 | 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‐303/19, not published, EU:T:2021:334, paragraph 121 and the case-law cited). |
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97

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‐303/19, not published, EU:T:2021:334, paragraph 121 and the case-law cited).

| 98 | 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). |
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98

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).

| 99 | In the second place, as regards the process of familiarising the defence with the content of the file, which was still under way in both sets of proceedings at the time of the adoption of the contested acts, it is clear from the case file that the Council merely accepted the laconic explanations given by the PGO, which found that the duration of the familiarisation process was entirely down to the defence but did not provide any substantiated information as to the nature and maximum duration of that process, which had been under way since 21 April 2017, being the date of closure of the preliminary investigation in Case 113 and since 3 December 2018, being the date of closure of the preliminary investigation in Case 521. |
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99

In the second place, as regards the process of familiarising the defence with the content of the file, which was still under way in both sets of proceedings at the time of the adoption of the contested acts, it is clear from the case file that the Council merely accepted the laconic explanations given by the PGO, which found that the duration of the familiarisation process was entirely down to the defence but did not provide any substantiated information as to the nature and maximum duration of that process, which had been under way since 21 April 2017, being the date of closure of the preliminary investigation in Case 113 and since 3 December 2018, being the date of closure of the preliminary investigation in Case 521.

| 100 | Contrary to its claims, the Council has still failed to show to what extent the information available to it concerning the process of familiarisation of the defence in those proceedings and the relevant court decisions led it to conclude that the applicant’s rights of defence and right to effective judicial protection had been respected, whereas, as the applicant argued, those proceedings, which concerned acts allegedly committed between 2011 and 2014, were still at the preliminary investigation stage and, moreover, had been transferred, already closed, to other investigating authorities in November 2019, with the result that the cases in question had not yet been submitted to a Ukrainian court with regard to the substance. |
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100

Contrary to its claims, the Council has still failed to show to what extent the information available to it concerning the process of familiarisation of the defence in those proceedings and the relevant court decisions led it to conclude that the applicant’s rights of defence and right to effective judicial protection had been respected, whereas, as the applicant argued, those proceedings, which concerned acts allegedly committed between 2011 and 2014, were still at the preliminary investigation stage and, moreover, had been transferred, already closed, to other investigating authorities in November 2019, with the result that the cases in question had not yet been submitted to a Ukrainian court with regard to the substance.

| 101 | The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess compliance with the right to effective judicial protection (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 98 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. |
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101

The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess compliance with the right to effective judicial protection (see judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 98 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.

| 102 | In so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, such as those provided for by Article 6, their meaning and scope are, under Article 52(3) of the Charter, the same as those laid down by the ECHR. |
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102

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

| 103 | In that regard, it must be noted that, in its interpretation of Article 6 ECHR, the ECtHR has held 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 prevent them from being left in a state of uncertainty about their fate for too long, and also to prevent delays which might jeopardise the effectiveness and credibility of the administration of justice (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited). Furthermore, the ECtHR has also held that infringement of that principle could 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). |
| --- | --- |

103

In that regard, it must be noted that, in its interpretation of Article 6 ECHR, the ECtHR has held 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 prevent them from being left in a state of uncertainty about their fate for too long, and also to prevent delays which might jeopardise the effectiveness and credibility of the administration of justice (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited). Furthermore, the ECtHR has also held that infringement of that principle could 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).

Rutkowski and Others v. Poland

Rouille v. France

Reiner and Others v. Romania

Borisenko v. Ukraine

| 104 | Moreover, it is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, on account, essentially, of the continuing conduct of the same preliminary investigations, as is the situation in the present case, the Council is required, prior to the adoption of a decision extending the application of those measures, to verify whether that person’s right to be tried within a reasonable time, has been respected (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‐303/19, not published, EU:T:2021:334, paragraph 127; 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). |
| --- | --- |

104

Moreover, it is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, on account, essentially, of the continuing conduct of the same preliminary investigations, as is the situation in the present case, the Council is required, prior to the adoption of a decision extending the application of those measures, to verify whether that person’s right to be tried within a reasonable time, has been respected (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‐303/19, not published, EU:T:2021:334, paragraph 127; 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).

| 105 | In that regard, as was pointed out in paragraph 74 above, it is appropriate to bear in mind the precautionary nature of freezing the applicant’s assets and the purpose thereof, which is, as stated by the Council in its pleadings, 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, which can be justified precisely because it is temporary in 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 judicial proceedings on which it is based and which are still at the preliminary investigation stage, have been left open 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). |
| --- | --- |

105

In that regard, as was pointed out in paragraph 74 above, it is appropriate to bear in mind the precautionary nature of freezing the applicant’s assets and the purpose thereof, which is, as stated by the Council in its pleadings, 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, which can be justified precisely because it is temporary in 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 judicial proceedings on which it is based and which are still at the preliminary investigation stage, have been left open 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).

| 106 | It is also apparent from the case-law of the ECtHR dealing with the interpretation of Article 6 ECHR that delays caused by suspensions of the proceedings by the authorities, decisions to join and disjoin different criminal proceedings and remittals of a case for re-investigation and re-examination within one set of proceedings can disclose a serious deficiency in the operation of the criminal justice machinery (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 view of the protracted duration of the pre-trial investigations and the lack of progress thereof, it follows from what was stated in paragraph 104 above that the Council was required, prior to the adoption of the contested acts, to satisfy itself that the unreasonable duration of those pre-trial investigations was justified. The Council was therefore not entitled simply to accept the explanation put forward by the PGO claiming that the new provisions of the Code of Criminal Procedure dealing with the closure of criminal proceedings were inapplicable as they were not retroactive, since it has not been established or even claimed that the provisions of the Code of Criminal Procedure applicable to the proceedings at issue did not allow the relevant pre-trial investigations to be closed. |
| --- | --- |

106

It is also apparent from the case-law of the ECtHR dealing with the interpretation of Article 6 ECHR that delays caused by suspensions of the proceedings by the authorities, decisions to join and disjoin different criminal proceedings and remittals of a case for re-investigation and re-examination within one set of proceedings can disclose a serious deficiency in the operation of the criminal justice machinery (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 view of the protracted duration of the pre-trial investigations and the lack of progress thereof, it follows from what was stated in paragraph 104 above that the Council was required, prior to the adoption of the contested acts, to satisfy itself that the unreasonable duration of those pre-trial investigations was justified. The Council was therefore not entitled simply to accept the explanation put forward by the PGO claiming that the new provisions of the Code of Criminal Procedure dealing with the closure of criminal proceedings were inapplicable as they were not retroactive, since it has not been established or even claimed that the provisions of the Code of Criminal Procedure applicable to the proceedings at issue did not allow the relevant pre-trial investigations to be closed.

Krivoshey v. Ukraine

| 107 | That conclusion cannot be called into question by the line of argument derived by the Council from the case giving rise to the judgment of 5 October 2017, Mabrouk v Council (T‐175/15, EU:T:2017:694), where the criminal investigation had been suspended for several years. In that regard, first, it must be noted that the judgment of 5 October 2017, Mabrouk v Council (T‐175/15, EU:T:2017:694), was delivered before delivery of the judgment of 19 December 2018, Azarov v Council (C‐530/17 P, EU:C:2018:1031), which provided significant clarification with respect to the Council’s obligation to verify, inter alia, whether the right to be tried within a reasonable time, which, as has been pointed out in paragraph 101 above, is a component of the right to effective judicial protection, was respected in the criminal proceedings forming the basis for the adoption of restrictive measures. Secondly, in the case that gave rise to the judgment of 5 October 2017, Mabrouk v Council (T‐175/15, EU:T:2017:694), the situation was different from that of the present case, in so far as the documents available to the Council demonstrated both that there was in fact procedural activity in the judicial investigation of the case involving the applicant and, in particular, that procedural steps were taken by the authorities concerned in connection with international letters rogatory (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‐303/19, not published, EU:T:2021:334, paragraph 130 and the case-law cited). |
| --- | --- |

107

That conclusion cannot be called into question by the line of argument derived by the Council from the case giving rise to the judgment of 5 October 2017, Mabrouk v Council (T‐175/15, EU:T:2017:694), where the criminal investigation had been suspended for several years. In that regard, first, it must be noted that the judgment of 5 October 2017, Mabrouk v Council (T‐175/15, EU:T:2017:694), was delivered before delivery of the judgment of 19 December 2018, Azarov v Council (C‐530/17 P, EU:C:2018:1031), which provided significant clarification with respect to the Council’s obligation to verify, inter alia, whether the right to be tried within a reasonable time, which, as has been pointed out in paragraph 101 above, is a component of the right to effective judicial protection, was respected in the criminal proceedings forming the basis for the adoption of restrictive measures. Secondly, in the case that gave rise to the judgment of 5 October 2017, Mabrouk v Council (T‐175/15, EU:T:2017:694), the situation was different from that of the present case, in so far as the documents available to the Council demonstrated both that there was in fact procedural activity in the judicial investigation of the case involving the applicant and, in particular, that procedural steps were taken by the authorities concerned in connection with international letters rogatory (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‐303/19, not published, EU:T:2021:334, paragraph 130 and the case-law cited).

| 108 | It follows that, in the present case, the Council should at the very least have assessed all the evidence provided by the PGO and the applicant and set out the reasons why, following an independent and thorough analysis of that evidence, it was able to take the view that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been observed with regard to whether the applicant’s case had been heard within a reasonable time (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 102). |
| --- | --- |

108

It follows that, in the present case, the Council should at the very least have assessed all the evidence provided by the PGO and the applicant and set out the reasons why, following an independent and thorough analysis of that evidence, it was able to take the view that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been observed with regard to whether the applicant’s case had been heard within a reasonable time (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 102).

| 109 | 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 taken in accordance with the applicant’s right to effective judicial protection and, more particularly, his right to have his case heard within a reasonable time. |
| --- | --- |

109

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 taken in accordance with the applicant’s right to effective judicial protection and, more particularly, his right to have his case heard within a reasonable time.

| 110 | In that regard, it must also be observed that the settled 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 context of the contested acts, it is not for the Council or EU judicature to verify whether or not the investigations in Ukraine to which the person concerned by those restrictive measures was subject were 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 restrictive measures was taken in accordance with the rights of defence and the right to effective judicial protection (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 104 and the case-law cited). |
| --- | --- |

110

In that regard, it must also be observed that the settled 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 context of the contested acts, it is not for the Council or EU judicature to verify whether or not the investigations in Ukraine to which the person concerned by those restrictive measures was subject were 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 restrictive measures was taken in accordance with the rights of defence and the right to effective judicial protection (see, to that effect, judgment of 3 February 2021, Klymenko v Council, T‐258/20, EU:T:2021:52, paragraph 104 and the case-law cited).

| 111 | In the light of all the foregoing considerations, it has not been established that the Council, prior to the adoption of the contested acts, assured itself that the Ukrainian judicial authorities had complied with the applicant’s rights of defence and 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. |
| --- | --- |

111

In the light of all the foregoing considerations, it has not been established that the Council, prior to the adoption of the contested acts, assured itself that the Ukrainian judicial authorities had complied with the applicant’s rights of defence and 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.

| 112 | 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. |
| --- | --- |

112

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.

| 113 | With regard to the Council’s contention put forward in the alternative (see the second indent of paragraph 50 above), seeking, in essence, to have the effects of Decision 2021/394 maintained until the expiry of the period allowed for bringing an appeal against the present judgment, in so far as Implementing Regulation 2021/391 might be annulled to the extent that it concerns the applicant, and, in the event that an appeal might be brought in that respect, until the decision ruling on that appeal, it is sufficient to note that Decision 2021/394 was effective only until 6 September 2021. Consequently, the annulment of that decision by the present judgment has no effect on the period after that date, so that it is not necessary to rule on the question of maintaining the effects of that decision (see, to that effect, judgment of 23 September 2020, Arbuzov v Council, T‐289/19, not published, EU:T:2020:445, paragraph 98 and the case-law cited). |
| --- | --- |

113

With regard to the Council’s contention put forward in the alternative (see the second indent of paragraph 50 above), seeking, in essence, to have the effects of Decision 2021/394 maintained until the expiry of the period allowed for bringing an appeal against the present judgment, in so far as Implementing Regulation 2021/391 might be annulled to the extent that it concerns the applicant, and, in the event that an appeal might be brought in that respect, until the decision ruling on that appeal, it is sufficient to note that Decision 2021/394 was effective only until 6 September 2021. Consequently, the annulment of that decision by the present judgment has no effect on the period after that date, so that it is not necessary to rule on the question of maintaining the effects of that decision (see, to that effect, judgment of 23 September 2020, Arbuzov v Council, T‐289/19, not published, EU:T:2020:445, paragraph 98 and the case-law cited).

Costs

Costs

| 114 | 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. |
| --- | --- |

114

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: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

| | 1. | Annuls Council Decision (CFSP) 2021/394 of 4 March 2021 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) 2021/391 of 4 March 2021 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 Klymenko was maintained on the list of persons, entities and bodies subject to those restrictive measures; |
| --- | --- | --- |

1.

1.

Annuls Council Decision (CFSP) 2021/394 of 4 March 2021 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) 2021/391 of 4 March 2021 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 Klymenko was maintained on the list of persons, entities and bodies subject to those restrictive measures;

Annuls Council Decision (CFSP) 2021/394 of 4 March 2021 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) 2021/391 of 4 March 2021 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 Klymenko 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. |
| --- | --- | --- |

2.

2.

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

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

| | Spielmann


  Mastroianni


  Brkan


  Delivered in open court in Luxembourg on 21 December 2021.
  [Signatures] |
| --- | --- |

Spielmann

Mastroianni

Brkan

Delivered in open court in Luxembourg on 21 December 2021.

[Signatures]

---

(
  *1
  )	Language of the case: French.

*1