Information;Judgment — ECLI:EU:T:2022:187
Date: 2022-03-30
Language of the case: English
Court formation: Fifth Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern the question whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 65 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 75 and the case-law cited). 79 The adoption and the maintenance of restrictive measures, such as those laid down in the March 2014 acts, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that State, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 66 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 76 and the case-law cited). 80 Thus, while, under a listing criterion such as that referred to in paragraph 12 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were respected by the authorities of the third State which adopted that decision (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 67 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 77 and the case-law cited). 81 The requirement for the Council to verify that the decisions of third States on which it intends to rely have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures has a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 68 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 78 and the case-law cited). 82 Moreover, although it is true that the fact that a third State is among the States which acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), entails review, by the European Court of Human Rights (‘the ECtHR’), of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 81 above (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 69 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 79 and the case-law cited). 83 According to the case-law, the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 70 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 80 and the case-law cited). 84 Ultimately, when it bases the adoption or the maintenance of restrictive measures such as those in the present case on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, secondly, refer, in the decision imposing restrictive measures, to the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 71 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 81 and the case-law cited). 85 In the present case, such obligations appear all the more inescapable since, as is clear from recital 2 of Decision 2014/119, that decision and the subsequent decisions were adopted as part of a policy aimed at consolidating and supporting the rule of law and respect for human rights in Ukraine (see paragraph 4 above), in accordance with the objectives set out in Article 21(2)(b) TEU. Consequently, the purpose of those decisions, which is, inter alia, to assist the Ukrainian authorities in finding any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation, would be irrelevant as regards those objectives if that finding were vitiated by a denial of justice or even by arbitrariness (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 95). 86 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. 87 In that regard, it must be noted that the Council referred in the contested acts to the reasons why it had considered that the decision of the Ukrainian authorities to initiate and conduct criminal proceedings against the applicant for misappropriation of public funds or assets had been adopted in accordance with his rights of defence and his right to effective judicial protection (see paragraph 36 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been so in the present case. 88 Indeed, examination of the merits of the statement of reasons, which goes to the substantive legality of the contested acts and consists, in this case, in ascertaining whether the evidence relied on by the Council has been established and whether it is capable of demonstrating that the observance of those rights by the Ukrainian authorities has been verified, must be distinguished from the question of the statement of reasons, which concerns an essential procedural requirement and is merely a corollary of the Council’s obligation to ensure in advance that those rights are observed (see judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 84 and the case-law cited). 89 The restrictive measures previously adopted were extended and maintained with respect to the applicant by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, and in Article 3 of Regulation No 208/2014, as amended by Regulation 2015/138 (see paragraphs 12 and 13 above). That criterion covers persons who have been identified as responsible for the misappropriation of public funds belonging to the Ukrainian State, including persons subject to investigation by the Ukrainian authorities. 90 It is apparent from reasonson which the contested acts are based, referred to in paragraph 36 above, and from the letter of 6 March 2020 that the Council relied, in order to decide to maintain the applicant’s name on the list, on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences constituting misappropriation of public funds or assets, which was established, inter alia, by the PGO’s letters and by certain judicial decisions. 91 The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgments of 11 July 2019, Yanukovych v Council (T‑244/16 and T‑285/17, EU:T:2019:502); of 24 September 2019, Yanukovych v Council (T‑300/18, not published, EU:T:2019:685); and of 9 June 2021, Yanukovych v Council (T‑303/19, not published, EU:T:2021:334), on the decision of the Ukrainian authorities to initiate and conduct criminal investigation proceedings relating to an offence of misappropriation of public funds belonging to the Ukrainian State. 92 It must also be noted that when, by the contested acts, the Council amended the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, it added – as it had done when adopting the March 2019 acts – a new section entirely devoted to the rights of the defence and the right to effective judicial protection, which is divided into two parts. 93 The first part of that section contains a simple, general reference to the rights of the defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, reference is made first of all to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. It is then stated, first, that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local court in the presence of the complainant or his or her defence lawyer or legal representative. Secondly, it is stated, inter alia, that Article 309 of that code specifies the decisions of investigating judges that may be challenged on appeal. Lastly, it is made clear that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible pursuant to a ruling by the investigating judge or a court. 94 The second part of the section concerns respect for the rights of defence and the right to effective judicial protection of each person whose name appears on the list. As regards more specifically the applicant, it is stated that, according to the information in the Council’s file, his rights of defence and his right to effective judicial protection were respected in the course of the criminal proceedings on which the Council relied, as is apparent, inter alia, from ‘[the PGO] letters of 26 September 2014 and 8 October 2014 concerning the sending of the written notification of suspicion, information that permission for a special pre-trial investigation in absentia was granted on 27 July 2015, a number of Court decisions relating to the seizure of property and by the fact that the decision to suspend the criminal proceedings of 27 September 2017 was open to appeal. The Council also has evidence on its file that a recent [application by the applicant’s legal representatives] was granted on 30 September 2019’ (see paragraph 36 above). 95 In the letter of 6 March 2020 sent to the applicant (see paragraph 37 above), the Council stated first of all that the information received from the PGO confirmed that the applicant remained subject to proceedings [confidential] in Ukraine for misappropriation of public funds or assets. Next, it stated that, in the light of the requests for international mutual legal assistance and the appeal which the applicant had lodged against the decision to suspend those proceedings, the latter were still ongoing. As regards the question of the competence of the Bureau of Investigation, disputed by the applicant, the Council stated that the pre-trial investigation in those proceedings had been transferred to the National Anti-Corruption Bureau of Ukraine, which now led that investigation. Finally, as regards observance of the applicant’s rights of defence and his right to effective judicial protection, the Council expressly referred only to proceedings [confidential], stating that it was apparent that those rights had been respected from (i) the PGO’s letters of 26 September and 8 October 2014 concerning the sending of the written notification of suspicion, (ii) the fact that on 27 July 2015 permission to open a special pre-trial investigation in absentia had been granted, (iii) the judicial decisions relating to the seizure of the applicant’s property, (iv) the fact that the decision of 27 September 2017 to suspend the criminal proceedings was open to challenge, and (v) the fact that an application made by the applicant’s legal representatives was granted on 30 September 2019,. 96 Thus, it is apparent from a combined reading of the reasons set out in the contested acts and in the letter of 6 March 2020 that proceedings [confidential] are the only proceedings in respect of which the Council demonstrates that it did actually verify whether the applicant’s rights of defence and his right to effective judicial protection had been respected, which was, moreover, confirmed by the Council itself in response to a question put by the Court at the hearing. 97 In that regard, it must be observed, at the outset, that the Council has failed to demonstrate to what extent the judicial decisions referred to in paragraph 94 above are evidence of observance of the applicant’s rights of defence and his right to effective judicial protection in the course of proceedings [confidential]. As stated in paragraphs 80 and 81 above, the Council was required, in this case, before deciding to maintain the restrictive measures at issue, to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct criminal investigation proceedings in relation to offences constituting the misappropriation of public funds or assets allegedly committed by the applicant had been taken in accordance with those rights of the applicant (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 94 and the case-law cited). 98 From that point of view, both the judicial decisions relating to the seizure of property and the permission to open a special pre-trial investigation in absentia referred to in paragraph 94 above cannot be identified as decisions to initiate and conduct the investigation procedure justifying the maintenance of the restrictive measures at issue, given that they are incidental decisions. That said, it may be accepted that, from a substantive point of view, since those decisions were delivered by a court, they were actually taken into account by the Council as the factual basis justifying the maintenance of the restrictive measures at issue (see, to that effect and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 95 and the case-law cited). 99 It must therefore be ascertained whether the Council was right to consider that such judicial decisions and the other information which it referred to in the second part of the section of the contested acts relating to the applicant’s rights of defence and his right to effective judicial protection (see paragraph 36 above), namely the PGO’s letters concerning the sending of the written notification of suspicion to the applicant, the fact that the PGO’s decision of 27 September 2017 to suspend proceedings [confidential] was open to appeal and the documents showing that the PGO had granted the applicant’s request to receive copies of the decisions to suspend and reopen those proceedings on 30 September 2019, demonstrated that the applicant’s rights of defence and his right to effective judicial protection had been respected. 100 As regards, first, the decisions concerning the seizure of the applicant’s property, which are not included in the case file, it must be stated that, according to the information provided by the PGO, they were made by the investigating judge of the Pechersk District Court (Kiev) between October 2014 and December 2015, that is to say, five years and five months and four years and three months before the adoption of the contested acts, respectively. It follows that those decisions, the legality of which had, moreover, been challenged by the applicant in a number of respects and in respect of which the Council itself acknowledged in the rejoinder and in response to a question from the Court at the hearing, that they had limited evidential value, are not sufficient to establish that proceedings [confidential], on which the Council relies in order to maintain, for the period from March 2020 to March 2021, the restrictive measures at issue vis-à-vis the applicant, were conducted in accordance with his rights of defence and his right to effective judicial protection (see, to that effect and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 117 and the case-law cited). 101 Similar considerations may be formulated concerning the decision granting permission to open a special pre-trial investigation in absentia dated 27 July 2015, since that decision was also taken well before the adoption of the contested acts and the annual periodic review of the applicant’s situation which preceded their adoption. 102 Moreover, the General Court has already had the opportunity to rule on the decision granting permission to open a special pre-trial investigation in absentia dated 27 July 2015 and the decisions relating to the seizure of the applicant’s property, in the case which gave rise to the judgment of 24 September 2019, Yanukovych v Council (T‑300/18, not published, EU:T:2019:685, paragraphs 83 and 93 to 96), and, with regard solely to the decisions to seize property, in the cases which gave rise to the judgments of 11 July 2019, Yanukovych v Council (T‑244/16 and T‑285/17, EU:T:2019:502, paragraphs 71 and 90 to 93), and of 9 June 2021, Yanukovych v Council (T‑303/19, not published, EU:T:2021:334, paragraph 117), against which no appeal was brought before the Court of Justice, by ruling that those decisions were not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection were respected in the proceedings at issue. No argument put forward by the Council in the present case allows the General Court to reach conclusions different from those reached in those judgments, which concern the same parties and essentially raise the same legal issues. 103 In any event, it must also be noted that all the judicial decisions referred to above fall within the scope, inter alia, of the criminal proceedings which justified maintaining the applicant’s name on the list and are merely incidental to those proceedings since they are either precautionary or procedural in nature. Such decisions, which may serve at most to establish the existence of a sufficiently solid factual basis, in that, in accordance with the applicable listing criterion, the applicant was subject to criminal proceedings relating to offences of misappropriation of funds or assets belonging to the Ukrainian State, are not ontologically capable, alone, of demonstrating that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and his right to effective judicial protection, which it is for the Council to verify, in accordance with the case-law recalled in paragraph 81 above (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 94 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 118 and the case-law cited). 104 Next, as regards, first, the PGO’s decision of 27 September 2017 to suspend proceedings [confidential], it must be stated that it was also taken well before the renewal of the restrictive measures at issue. Furthermore, the fact that that decision was open to challenge cannot demonstrate on its own that the applicant’s rights of defence and his right to effective judicial protection were respected during those proceedings; nor can it demonstrate that the lack of progress in the pre-trial investigation and, more generally, the resulting delays in the procedure were attributable to the applicant (see, to that effect, judgment of 7 July 2021, Pshonka v Council, T‑268/20, not published, EU:T:2021:418, paragraph 99). 105 As regards, secondly, the PGO’s letters of 26 September and 8 October 2014 concerning the written notification of suspicion to the applicant, which is moreover disputed by him, it should be noted that, as has just been stated as regards the judicial decisions and the PGO’s decisions mentioned in paragraphs 100 to 104 above, those letters are not sufficient to establish that proceedings [confidential], on which the Council sought to rely in order to maintain, for the period from March 2020 to March 2021, the restrictive measures at issue taken against the applicant were conducted in observance of the applicant’s rights of defence and his right to effective judicial protection. 106 Finally, as regards the documents demonstrating that, on 30 September 2019, the applicant was granted a recent application made by his legal representatives, it should be noted, first, that it is a letter from the PGO addressed to the applicant’s Ukrainian legal representatives, which granted the applicant’s application for copies of the decisions suspending and reopening the pre-trial investigation in proceedings [confidential] and, secondly, that the PGO, in response to that application, merely appended to that letter the decision of 27 September 2017, which was the last one to be made by the PGO, even though it is apparent from the file that there were other decisions relating to the suspension and reopening of the proceedings in question which the PGO did not forward to the applicant despite his express application to that effect. 107 The Council has failed to state the reasons why the PGO’s letter of 30 September 2019 is capable of demonstrating that the Ukrainian judicial authorities respected the applicant’s rights of defence and his right to effective judicial protection. On the contrary, as the applicant rightly points out, without being contradicted by the Council, it is apparent from the file that the PGO did not respect the applicant’s rights of defence and his right to effective judicial protection since it did not automatically send the suspension decisions to his legal representatives, as required by Article 280(4) of the Code of Criminal Procedure. Irrespective of whether it is true, as the applicant claims, that he had repeatedly asked the PGO for those decisions, which is disputed by the Council, the fact remains that it is apparent from the documents before the Court that, despite that provision of the Code of Criminal Procedure, the applicant had to wait two years before having in his possession one of the decisions suspending the investigation; this cannot demonstrate that his rights were respected. 108 In addition, the Council does not put forward any document, contained in the file of the procedure resulting in the adoption of the contested acts, which shows that the Council examined the judicial decisions referred to and that it was able to conclude from that examination that the essence of the applicant’s procedural rights had been observed. 109 The mere reference by the Council to letters and statements of the Ukrainian authorities in which those authorities set out the manner in which the applicant’s fundamental rights had been respected and gave assurances in that regard cannot suffice for the view to be taken that the decision to maintain his name on the list has a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 81 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). 110 Following the examination of the judicial decisions and the other documents referred to by the Council in the contested acts, it must be concluded that, even taken as a whole, they are not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection had been respected during the criminal proceedings on which it relied. 111 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). 112 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). 113 Moreover, nor does the Council explain how, in particular, the mere existence of the judicial decisions and documents referred to in paragraph 94 above permits the inference that respect for the applicant’s right to effective judicial protection was guaranteed. In that regard, it should be noted that, as the applicant had argued on numerous occasions in the letters sent to the Council, proceedings [confidential], which had been separated in June 2015 from proceedings No [confidential], initiated in 2014, and which were currently suspended, were still at the stage of the pre-trial investigation, itself recently transferred to the National Anti-Corruption Bureau, with the result that they had not been brought before a Ukrainian court for consideration of the merits, the Ukrainian court having been seised only of procedural matters, notwithstanding the fact that the Pechersk District Court had delivered a decision on 27 July 2015 granting the PGO permission to proceed in absentia (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 123). 114 The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess the observance of the right to effective judicial protection (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 98 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 124 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. 115 In so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, such as those provided for by Article 6 thereof, their meaning and scope are, under Article 52(3) of the Charter, the same as those laid down by the ECHR. 116 In that regard, it should be noted that, in its interpretation of Article 6 ECHR, the ECtHR has stated that the purpose of the reasonable time principle is, inter alia, to protect persons charged with a criminal offence against excessive procedural delays and to avoid leaving them in a state of uncertainty about their fate for too long, and that that principle underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited). The ECtHR has also held that breach of that principle may be established, inter alia, where the investigation stage of criminal proceedings has been characterised by a certain number of periods of inactivity attributable to the authorities responsible for that investigation (see, to that effect, ECtHR, 6 January 2004, Rouille v. France, CE:ECHR:2004:0106JUD005026899, §§ 29 to 31; 27 September 2007, Reiner and Others v. Romania, CE:ECHR:2007:0927JUD000150502, §§ 57 to 59; and 12 January 2012, Borisenko v. Ukraine, CE:ECHR:2012:0112JUD002572502, §§ 58 to 62). 117 It is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, and that this has been on account, essentially, of the continuing conduct of the same preliminary investigations, as is the case in this instance, the Council is required to verify whether that person’s right to be tried within a reasonable time has been respected before the adoption of a decision to extend the application of those measures (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 101, and of 9 June 2021, Yanukovych v Council, T‑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). 118 In that regard, as has been noted in paragraph 85 above, it is important to bear in mind the precautionary nature of freezing the applicant’s assets and the purpose thereof, that is to say, as the Council noted in its pleadings and at the hearing, to assist the Ukrainian authorities with establishing any misappropriation of State funds that has taken place, on conclusion of the judicial proceedings, and to ensure that it remains possible for those authorities, ultimately, to recover the proceeds of that misappropriation. It therefore falls to the Council to ensure that that measure, justified precisely by its temporary nature, is not extended unnecessarily, to the detriment of the applicant’s rights and freedoms, on which it has a significant negative impact, merely because the criminal proceedings on which it is based and which are still at the pre-trial investigation stage have been left open, in essence, indefinitely (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). 119 It is also apparent from the case-law of the ECtHR concerning the interpretation of Article 6 ECHR, relied on by the applicant at the hearing, that delays caused by suspensions of the proceedings by the authorities, the decisions to join and separate the various criminal proceedings and the referrals of a case back to the authorities for further investigation in the context of the same proceedings may be regarded as evidence of a serious deficiency in the operation of the criminal justice system (see, to that effect, ECtHR, 23 June 2016, Krivoshey v. Ukraine, CE:ECHR:2016:0623JUD000743305, § 97 and the case-law cited). In the present case, in the light of the prolonged duration of the pre-trial investigation in question, it follows from what has been stated in paragraph 117 above that the Council was required, prior to the adoption of the contested acts, to satisfy itself that the duration of that investigation was not unreasonable. Moreover, from that point of view, the Council should have taken into account any evidence of possible deficiencies in the Ukrainian criminal justice system apparent from the case file, that is to say, in the present case, the fact that proceedings [confidential] had been separated from other proceedings, it had been suspended and reopened on several occasions and the pre-trial investigation conducted in those proceedings had recently been transferred to another investigating body (see, inter alia, paragraph 113 above), without entailing any progress in the matter, instead of merely relying on PGO’s explanations exclusively as a basis for its assessment. 120 The arguments set out by the PGO in its letters, unsupported by any evidence, which are endorsed to some extent by the Council, that the lack of any developments in proceedings [confidential] was justified, inter alia, by their suspension pending responses to a number of requests for international mutual legal assistance sent by the Ukrainian authorities to several third countries between 16 March 2016 and 23 May 2017 are not such as to call that conclusion into question. As the applicant observes, the pre-trial investigation in proceedings [confidential] on which the Council relied was suspended without ever having been reopened since 27 September 2017. Furthermore, it is apparent from the file that, first, it was suspended and reopened several times without any credible justification for doing so having been given by the PGO and, secondly, no investigatory or procedural action was carried out by the authorities responsible for the investigation, which moreover changed in November 2019 (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 128). 121 Although the Council carried out further verifications with the Ukrainian authorities in order to be informed of the reasons justifying the suspension of proceedings [confidential], it is apparent from the file that the explanations provided by the PGO, according to which the suspension was justified, inter alia, by the need to carry out procedural actions within the framework of international cooperation. 122 In that regard, it must be noted, as the applicant submits, that, first, the PGO stated, in response to the questions put by the Council, that the proceedings had been suspended since 27 September 2017, whereas, in reality, they had been suspended, in essence, at least since 14 December 2016. Secondly, in the table of information annexed to the letter of 1 November 2019, the PGO stated that the suspension was based on the fact there ‘exists a need to carry out procedural actions within the framework of international cooperation’ which is expressly covered by Article 280(1)(3) of the Code of Criminal Procedure, to which the PGO refers expressly. However, it is apparent from the suspension decision of 27 September 2017 that it was taken on the basis, inter alia, of Article 280(1)(2) of that code, which concerns the search for a suspect. It follows that the PGO provided the Council with contradictory information, which the Council could have easily detected. In those circumstances, the Council’s argument, which circumvented the applicant’s question raising such a contradiction in the administrative procedure which preceded the adoption of the contested measures, that there was no reason to doubt the information communicated by the PGO concerning the ground for the suspension, must be rejected. 123 Furthermore, the Council’s argument that suspensions in criminal proceedings over several years have been accepted by the General Court where they were due to procedural actions carried out within the framework of international cooperation, which it derives from the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779, paragraph 54), is not relevant. 124 First, it must be noted that the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), was delivered before the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), which provided significant clarifications with respect to the Council’s obligation to verify, inter alia, whether the right of the person concerned to be tried within a reasonable time, which, as was pointed out in paragraph 114 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 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), the situation was different from that of the present case, in so far as the documents available to the Council demonstrated both that procedural activity was taking place 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. However, that is not the case here, since the Council relied only on the PGO’s statements which refer in generic terms to procedural actions taken within the framework of international cooperation (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). 125 As regards the argument put forward by the Council in its rejoinder that, in accordance with the case-law of the ECtHR, the flight of an accused person has in itself certain repercussions on the scope of the guarantee provided by Article 6(1) ECHR as regards the duration of investigation, it must be observed that, first, assuming that the applicant really absconded, the fact remains that proceedings [confidential], on which the Council relies, relating to acts allegedly committed by the applicant between October 2010 and July 2013 were still at the stage of the pre-trial investigation six years after they were initiated and, secondly, since 27 July 2015, the PGO had permission to proceed in absentia so far as concerns the applicant so that his location (see paragraph 112 above) was irrelevant (see, to that effect, judgment of 6 June 2018, Arbuzov v Council, T‑258/17, EU:T:2018:331, paragraph 99). 126 Finally, the Council should at the very least have assessed all the evidence adduced by the PGO and the applicant and indicated the reasons for which, following an independent and thorough analysis of that evidence, it was able to conclude that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been complied with so far as concerns respect for his right to have his case heard within a reasonable time (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 131 and the case-law cited). 127 It cannot therefore be concluded, having regard to the documents in the file, that the information available to the Council at the time of the adoption of the contested acts enabled it to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct the criminal proceedings at issue had been adopted and implemented in accordance with the applicant’s right to effective judicial protection and, more specifically, his right to have his case heard within a reasonable time. 128 It must also be noted in that regard that the well-established case-law according to which, in the event of the adoption of a decision to freeze funds, such as the decision adopted in respect of the applicant in the contested acts, it is not for the Council or the Courts of the European Union to verify whether or not the investigation of the person concerned by those restrictive measures in Ukraine was well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of those restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 104 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 133 and the case-law cited). 129 Lastly, the Council’s argument that, in essence, it is not for the Council to call into question the decisions of the Ukrainian courts, which benefit from a kind of presumption of legality, must be rejected. While it is true, as the Council claims, that it is entitled to rely on such decisions as evidence of the existence of criminal proceedings relating to allegations against the applicant of misappropriation of public funds, the same cannot be said as regards evidence of the proper conduct of those criminal proceedings, including as regards respect for his rights of defence and his right to effective judicial protection. As noted in paragraph 81 above, in order to ensure that there is a sufficiently solid factual basis for maintaining the applicant’s name on the list, the Council must verify not only whether there are ongoing judicial proceedings concerning the applicant for conduct that could be characterised as misappropriation of public funds, but also whether, in the context of those proceedings, those rights of the applicant were respected (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 135 and the case-law cited). 130 That is particularly so where, as in this case, the Council was not in possession of certain decisions and certain information on which it intended to rely and, moreover, the applicant raised doubts as to whether his rights had been respected in the context of the adoption of the judicial decisions on which the Council intended to rely. In any event, it is not inconceivable that, having regard in particular to the observations submitted by the applicant, that institution might be obliged to seek clarification from the Ukrainian authorities regarding respect for those rights (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 136 and the case-law cited), which has not been the case here. 131 In the light of all of the foregoing considerations, it has not been established that the Council satisfied itself, prior to the adoption of the contested acts, that the Ukrainian judicial authorities complied with the applicant’s rights of defence and his right to effective judicial protection in the criminal proceedings on which the Council relied. It follows that, in deciding to maintain the applicant’s name on the list, the Council made an error of assessment. 132 In those circumstances, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law and arguments put forward by the applicant. Costs 133 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Annuls Council Decision (CFSP) 2020/373 of 5 March 2020 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2020/370 of 5 March 2020 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Viktor Fedorovych Yanukovych was maintained on the list of persons, entities and bodies subject to those restrictive measures; 2. Orders the Council of the European Union to pay the costs. Spielmann Mastroianni Brkan Delivered in open court in Luxembourg on 30 March 2022. E. Coulon H. Kanninen Registrar President * Language of the case: English. 1 Confidential information omitted.