Information;Judgment — ECLI:EU:T:2021:334
Date: 2021-06-09
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 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 52 and the case-law cited, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 60 and the case-law cited). 76 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 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 53 and the case-law cited, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 61 and the case-law cited). 77 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 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 54 and the case-law cited, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 62 and the case-law cited). 78 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 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 55 and the case-law cited, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 63 and the case-law cited). 79 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 78 above (see judgments of 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 56 and the case-law cited, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 64 and the case-law cited). 80 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 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 57 and the case-law cited, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 64 and the case-law cited). 81 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 (judgment of 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 58; see also judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 66 and the case-law cited). 82 It is in the light of those case-law principles that it is necessary to establish whether the Council complied with its obligations in connection with the adoption of the contested acts in so far as those acts concern the applicant. 83 In that regard, it must be noted that the Council referred in the contested acts to the reasons why it had considered that the decision of the Ukrainian authorities to initiate and conduct criminal proceedings against the applicant for misappropriation of public funds or assets had been adopted in accordance with his rights of defence and his right to effective judicial protection (see paragraph 31 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been the case. 84 Indeed, examination of the merits of the statement of reasons, which goes to the substantive legality of the contested acts and consists, in this case, in ascertaining whether the evidence relied on by the Council has been established and whether it is capable of demonstrating that the observance of those rights by the Ukrainian authorities has been verified, must be distinguished from the question of the statement of reasons, which concerns an essential procedural requirement and is merely a corollary of the Council’s obligation to ensure in advance that those rights are observed (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 69 and the case-law cited). 85 The restrictive measures previously adopted were extended and maintained with respect to the applicant by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, and in Article 3 of Regulation No 208/2014, as amended by Regulation 2015/138 (see paragraphs 12 and 13 above). That criterion covers persons who have been identified as responsible for the misappropriation of Ukrainian State funds, including persons subject to investigation by the Ukrainian authorities. 86 It should be noted that, in deciding to maintain the applicant’s name on the list, the Council relied on the fact that he was subject to criminal proceedings initiated by the Ukrainian authorities for offences constituting misappropriation of public funds or assets, which was established by the letters from the PGO and by certain judicial decisions of which the applicant had received copies (see paragraph 29 above). 87 The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgments of 11 July 2019, Yanukovych v Council (T‑244/16 and T‑285/17, EU:T:2019:502), and of 24 September 2019, Yanukovych v Council (T‑300/18, not published, EU:T:2019:685), on the decision of the Ukrainian authorities to initiate and conduct criminal-investigation proceedings relating to an offence of misappropriation of Ukrainian State funds. 88 It must also be noted that when, by the contested acts, the Council amended the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, it added a new section, dedicated entirely to the rights of the defence and the right to effective judicial protection, which is subdivided into two parts. 89 The first part of that section contains a simple, general reference to the rights of the defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, reference is made first of all to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. It is then stated, first, that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local court in the presence of the complainant or his or her defence lawyer or legal representative. Secondly, it is stated, inter alia, that Article 309 of that code specifies the decisions of investigating judges that may be challenged on appeal. Last, it is made clear that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible pursuant to a ruling by the investigating judge or a court. 90 The second part of 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 were respected in the criminal proceedings on which the Council relied, as is demonstrated, in particular, ‘by a number of Court decisions relating to the seizure of property[, the] decision of 1 November 2018 granting permission for the arrest and summoning and bringing of the suspected to the Court, as well as by [the] decision … of 8 October 2018 refusing the prosecutor’s application for a special pre-trial investigation in absentia’ (see paragraph 31 above). 91 In the letter of 5 March 2019 sent to the applicant (see paragraph 32 above), first of all, the Council stated that the letters from the PGO confirmed that the applicant remained subject to criminal proceedings in Ukraine for misappropriation of public funds or assets. Next, it stated, first, that the PGO had provided it with information concerning the alleged lack of progress in proceedings [confidential] and that, according to the PGO, dismissal of the motion to proceed in absentia did not impede the pre-trial investigation or re-submission of a motion of that kind. Secondly, with regard to the issue of jurisdiction of the investigations bureau, contested by the applicant, the Council noted that the pre-trial investigation in those proceedings had been returned to the investigators of the Department for Special Investigations of the PGO and that, pending the decision of the investigating judge on the applicant’s appeal against the resolution on suspension of those proceedings also on grounds of lack of jurisdiction, it was entitled to rely on the information and evidence provided by the PGO. Last, as regards respect for the applicant’s rights of defence and right to effective judicial protection, the Council referred specifically only to those proceedings [confidential], stating that it was apparent from the court decisions relating to the seizure of the applicant’s property, from the decision of 8 October 2018, which had been delivered in an open-court session with the participation of defence lawyers, and the decision of 1 November 2018 that those rights had been respected. 92 It follows that, although, in its letter of 5 March 2019, the Council mentioned in generic terms the criminal proceedings to which the applicant was subject in Ukraine, proceedings [confidential] are the only proceedings in respect of which it shows that it did in fact check that the applicant’s rights of defence and his right to effective judicial protection were respected. 93 However, it should be noted that the Council also refers, in entirely generic terms, both in the reasons given in the contested acts and in that letter, to a ‘number of Court decisions relating to the seizure of property’. 94 In that regard, it must be observed at the outset that the Council has failed to show to what extent all those decisions demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected in proceedings [confidential] or proceedings [confidential], the latter being the only relevant proceedings, apart from proceedings [confidential], in which, according to the information provided by the PGO, orders were made for the applicant’s property to be seized. As stated in paragraphs 77 and 78 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 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 78). 95 From that perspective, the judicial decisions mentioned in paragraph 90 above cannot be identified as being decisions to initiate and conduct an investigation procedure justifying the maintenance of the restrictive measures. That said, it may be accepted that, from a substantive point of view, since those decisions – at least those of 8 October and 1 November 2018, which are relevant from a temporal perspective – 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 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 79). 96 It is therefore necessary to ascertain whether the Council was right to conclude that those two decisions and the decisions relating to the seizures of the applicant’s property demonstrated that his rights of defence and right to effective judicial protection were observed. 97 As regards, in the first place, the decision of 8 October 2018, it should be pointed out, contrary to the Council’s contention, that it is not clear from that decision, which does not include any statement of reasons, that those rights were safeguarded for the applicant in the present case. In that regard, while it is true, as the Council notes in its letter of 5 March 2019 (see paragraph 91 above), that that decision was adopted following a hearing in open court in which defence lawyers participated and that, by that decision, the investigating judge refused the application for a special pre-trial investigation in absentia submitted by the PGO on 28 February 2017, the fact remains that it is not apparent from the documents in the file in the present proceedings that the Council took into consideration the applicant’s observations regarding that decision and the possible grounds for its adoption, which the applicant had communicated to it in his letters of 29 November and 18 December 2018 and 28 January and 1 February 2019. 98 The applicant had argued, first, that the conditions for granting permission for in absentia proceedings, as provided for by Article 297‑2 of the Code of Criminal Procedure, were not met in the present case, as his name was not on the international wanted-persons list of the International Criminal Police Organisation (Interpol), and, secondly, that the decision of 8 October 2018 breached his right to effective judicial protection, since no appeal could be brought against it. He had also indicated, in particular, that, in the absence of a reasoned decision, the Council should have had regard to the grounds for rejection of an identical application from the PGO in relation to his son, in the same proceedings, by a decision delivered on 7 February 2018 by the same investigating judge. The applicant had argued that the rejection of that application had been determined by issues related, in particular, to the fact that the notice of suspicion had not been properly notified, which meant that his son did not have the status of suspect, and, more generally, to the fact that the evidence adduced by the PGO to show that his son was evading prosecution and that he was suspected of having committed the offence alleged was not sufficient. Furthermore, the applicant stated in his letter of 29 November 2018 that, in paragraph 63 of his report concerning the period from 16 May to 15 August 2018, the High Commissioner had stated that in absentia proceedings in Ukraine were not in line with international human rights standards. Whereas those proceedings should have been preceded by proper notification of the accused and should have provided the opportunity for a full retrial after the person concerned had been located by the authorities, none of those requirements was provided for in the Code of Criminal Procedure, which, according to the High Commissioner, negatively impacted the rights of the defence. 99 However, first, it is not apparent from the documents in the file that the Council did ascertain the extent to which the decision of 8 October 2018 was consistent with the articles of the Code of Criminal Procedure expressly mentioned in the first part of the section of the contested acts relating to the rights of the defence and the right to effective judicial protection in the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, as amended by the contested acts (see paragraph 89 above), which establish, inter alia, the right of a suspect to ‘challenge decisions, actions and omissions by the investigator, the public prosecutor and the investigating judge’ (see, to that effect and by analogy, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 82). 100 Secondly, it is not possible to determine from the documents in the file on what basis the Council found that a decision such as the decision of 8 October 2018 could demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected in proceedings [confidential]. 101 Admittedly, it is true, as the Council points out, that the decision does not authorise the opening of a special pre-trial investigation in absentia but refuses it and therefore, as such, is a decision that is favourable to the applicant. However, that factor alone is not sufficient to establish that the Council verified compliance by the Ukrainian authorities with the rights of defence and the right to judicial protection of the applicant (see, to that effect, judgment of 11 July 2019, Klyuyev v Council, T‑305/18, not published, EU:T:2019:506, paragraphs 83 to 85). 102 As noted in paragraphs 77 and 78 above, the Council must satisfy itself that those rights were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely, namely, in the present case, the decision of a Ukrainian authority, having jurisdiction in that regard, to initiate and conduct criminal-investigation proceedings concerning the applicant. Thus, the Council could not disregard the reasons that led to the refusal of the application of the PGO, which is the investigating authority, since that application could have proved, for example, to be fallacious or lacking any foundation in law. 103 That is particularly true in the present case, in which the Council merely relied on a short form of the decision that did not include a statement of reasons and which was adopted by the investigating judge of the Pechersk District Court in response to an application submitted by the PGO on 28 February 2017 that was necessarily based on evidence obtained up to that date, thus two years before the contested acts were adopted. 104 In those circumstances, the Council could not be content with the sparse or imprecise information available to it and made an error of assessment in considering that it was not required to take into account the evidence produced by the applicant and the arguments developed by him or to make further enquiries of the Ukrainian authorities, despite the fact that that evidence and those arguments were such as to give rise to legitimate doubts regarding the reliability of the information provided by the PGO (see, to that effect and by analogy, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraphs 253 to 257). 105 Furthermore, although it does not have any bearing on the present case, in so far as the full version of the decision of 8 October 2018 was not available at the time of the adoption of the contested acts, not having been made available to the applicant’s lawyers in Ukraine until 6 September 2019, it must nevertheless be pointed out that it is apparent from the full version of that decision that the conditions laid down in Article 297‑2 of the Code of Criminal Procedure for granting permission to investigate in absentia were not met in the present case. First, it was held that the notice of suspicion had not been properly notified and that, consequently, the applicant did not have the status of suspect. Secondly, it was noted that the PGO had not proved that the applicant was evading prosecution, since the PGO knew where he was in Russia. Thirdly, it was concluded that the PGO did not have jurisdiction to make such an application because the National Anti-Corruption Bureau of Ukraine was the competent investigating agency, and that the PGO had failed to establish the existence of circumstances that would constitute reasonable grounds for suspecting the applicant of having committed the alleged offence. 106 In the second place, as regards the decision of 1 November 2018, it should be noted at the outset that this was not included in the case file. The only information concerning that decision that could be gleaned from the file was the information contained in the letter from [confidential], that is to say, that the decision in question was one that extended the period of validity of the permission for the applicant’s arrest, summoning and bringing before a court, the only such decision mentioned in that letter and to which the decision of 1 November 2018 could refer being that delivered by the Pechersk District Court on 8 July 2015. 107 The decision of 1 November 2018 granting permission for the arrest and summoning of the applicant and for bringing him before a court, and the decision, with the same content, of the investigating judge of the Pechersk District Court of 8 July 2015 were produced by the Council in response to a measure of organisation of procedure adopted by the General Court. 108 It is apparent from the letter which the PGO sent to the Council on 4 August 2020 enclosing those two decisions that, contrary to what was suggested by the [confidential] letter [confidential] (see paragraph 106 above), the decision of 1 November 2018 did not constitute an extension of the decision of 8 July 2015, the latter having ceased to have effect on 8 January 2016. 109 Accordingly, it must be held that, prior to the adoption of the contested acts, the Council was not in possession of the decision of 1 November 2018 and that, in order to justify the assertion that the applicant’s rights of defence and his right to effective judicial protection had been respected, it relied solely, as the Council itself acknowledged at the hearing, on the reference [confidential] made to that decision [confidential]. 110 At the hearing, the Council remained unable to explain on what evidence it had relied for its assertion, in the statement of reasons for the contested acts in relation to the applicant (see paragraph 31 above), that the decision of 1 November 2018 demonstrated, in particular, that the applicant’s rights of defence and his right to effective judicial protection had been respected in the criminal proceedings on which the Council had relied. By contrast, it contended that there was another, similar decision in the case file on which it was entitled to rely, and that it had referred to the decision of 1 November 2018 in error. 111 In that regard, it must also be noted that the decision of 1 November 2018 refers to a decision with the same content, delivered on 3 May 2015 by the investigating judge of the Pechersk District Court, the validity of which expired on 2 November 2018, and not to the abovementioned decision of 8 July 2015, to which [confidential] referred [confidential] (see paragraph 108 above). 112 Consequently, it must be held that the information provided by the PGO, on which the Council relied, was imprecise and incorrect and, moreover, that the Council at the very least disregarded the content of the decision of 3 May 2015, the effects of which the decision of 1 November 2018 sought to extend. 113 In those circumstances, while the decision of 1 November 2018 could, as the Council contends, in the abstract, support the conclusion that the applicant had the status of suspect and, moreover, that a judge had found there to be sufficient evidence, within the meaning of Article 177(2) of the Code of Criminal Procedure, to show that there were reasonable grounds to suspect the applicant of having committed the criminal offence in question, that decision cannot demonstrate, in itself, that the applicant’s rights of defence and his right to effective judicial protection were respected. 114 It follows that the Council was wrong to find that the decision of 1 November 2018, which it did not examine before adopting the contested acts, could demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected. Furthermore, if it had examined that decision and the decision of 8 July 2015, it would have been able to identify a number of inconsistencies in the attestations of the PGO and, in consequence, seek additional information from the Ukrainian authorities. 115 It should, moreover, also be noted, first, that the decision of 1 November 2018 was adopted in response to a motion submitted by the PGO on the same day and following a hearing also held on 1 November 2018, in camera and without the involvement of a defence representative but in the presence of the prosecutor, and, secondly, that no appeal could be brought against that decision by the applicant. Furthermore, it is not apparent from the documents in the file that the Council did ascertain the extent to which that decision could, in the abstract, be consistent with compliance with the provisions of the Code of Criminal Procedure mentioned in the first part of the section relating to the rights of the defence and the right to effective judicial protection in the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, as amended by the contested acts. 116 As regards, in the third and last place, the court decisions concerning seizures of the applicant’s property, which also do not appear in the case file and which were never examined by the Council, as the Council conceded at the hearing, it should be noted that, according to the information given by the PGO, they were delivered by the Pechersk District Court between October 2014 and December 2015 in proceedings [confidential], and between February 2015 and July 2016 in proceedings [confidential], that is to say, well before the adoption of the contested acts. 117 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 at the hearing that they have limited evidential value, are not sufficient to establish that the decision of the Ukrainian judicial authorities, on which the Council intended to rely in order to maintain, for the period from March 2019 to March 2020, the restrictive measures at issue vis-à-vis the applicant, was adopted in accordance with his rights of defence and his right to effective judicial protection (see, to that effect and by analogy, judgment of 23 September 2020, Arbuzov v Council, T‑289/19, not published, EU:T:2020:445, paragraph 84). Furthermore, the Court has previously had the opportunity to rule on those decisions 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 24 September 2019, Yanukovych v Council (T‑300/18, not published, EU:T:2019:685, paragraphs 83 and 93 to 96), which were not contested by the Council. In those judgments, it was held that those decisions were not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection had been respected in the proceedings at issue. 118 In any event, it must also be noted that all the Ukrainian judicial decisions referred to 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 either restrictive 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 an offence of misappropriation of Ukrainian State funds or assets, 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 78 above (see, to that effect, judgments of 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 94, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraphs 91 and 92). 119 Moreover, the Council does not refer to any document in the file of the procedure which resulted in the adoption of the contested acts that would show that it examined the court decisions on which it relies and was able to conclude from them that the essence of the applicant’s procedural rights had been complied with. On the other hand, as has already been pointed out in paragraphs 106 and 116 above, it is apparent from the case file that the Council was not in possession of either the decision of 1 November 2018 or the decisions relating to the seizure of the applicant’s property and only had a short version of the decision of 8 October 2018 that did not include a statement of reasons. 120 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 78 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). 121 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 11 July 2019, Klyuyev v Council, T‑305/18, not published, EU:T:2019:506, paragraph 72). 122 That conclusion cannot be called in 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). 123 Nor, moreover, does the Council explain how, in particular, the mere existence of the decisions referred to in paragraph 90 above would permit the inference that respect for the applicant’s rights of defence and his right to effective judicial protection was guaranteed. In that regard, it must be noted that, as the applicant had argued on numerous occasions in the letters sent to the Council, proceedings [confidential] and proceedings [confidential] – which were originally initiated in 2014 and were currently both suspended, in the case of proceedings [confidential] after having been transferred several times between various investigation bureaux – were still at the pre-trial investigation stage, 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 in proceedings [confidential]. 124 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 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 47 and the case-law cited, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 96 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. 125 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. 126 In that regard, it should be noted that, in its interpretation of Article 6 of the 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). 127 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 investigation by the PGO, the Council is required to verify whether that person’s fundamental rights, and therefore his or her right to be tried within a reasonable time, have been respected by the Ukrainian authorities before it decides whether or not to extend those measures again (see, to that effect, judgments of 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 99, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 99; 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). 128 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 the proceedings at issue was justified, inter alia, by their suspension pending responses to a number of requests for international legal assistance [confidential], are not such as to call that conclusion in question. As the applicant points out, the two sets of proceedings on which the Council relied were suspended and reopened several times and for different reasons, without any credible justification for doing so having been given by the PGO. 129 Furthermore, the Council’s argument that suspensions in a criminal investigation over several years have been accepted by the General Court if they are due to procedural actions conducted 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 for two reasons. 130 First, it must be noted that that judgment was delivered before delivery of the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031) (see, to that effect, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraphs 96 to 98), which provided significant clarification with respect to the Council’s obligation to verify whether the right to be tried within a reasonable time, which, as has been pointed out in paragraph 124 above, is a component of the right to effective judicial protection, was respected in the judicial 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 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 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraphs 146 and 147). However, that is not the case here, since the Council relied only on the [confidential] attestations which refer in generic terms to procedural steps taken within the framework of international cooperation. 131 The Council should at the very least have indicated the reasons for which, notwithstanding the applicant’s arguments as set out in paragraph 123 above, 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 concerned respect for his right to have his case heard within a reasonable time (see, to that effect and by analogy, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 100). 132 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 and implemented in accordance with the applicant’s right to effective judicial protection and his right to have his case heard within a reasonable time. 133 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 11 July 2019, Yanukovych v Council, T‑244/16 and T‑285/17, EU:T:2019:502, paragraph 94 and the case-law cited; of 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 102 and the case-law cited; and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 102 and the case-law cited). 134 Last, the Court must reject the Council’s argument, reiterated at the hearing, that, in essence, it is not for the Council to call in question the decisions of the Ukrainian courts, which enjoy a kind of presumption of legality, not least by virtue of the cooperation and assistance agreements that exist between the European Union and Ukraine in the field of justice. 135 While it is true, as the Council claims, that it is entitled to rely on judicial 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 78 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 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 153 and the case-law cited). 136 That is particularly so where, as in this case, the Council was not in possession of most of the decisions 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 should be obliged to seek clarification from the Ukrainian authorities regarding respect for those rights (see, to that effect, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 240), which has not been the case here. 137 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. 138 In those circumstances, the contested acts must be annulled, in so far as they relate to the applicant, without it being necessary to examine the other pleas in law and the other arguments put forward by the applicant. 139 Having regard to the claim put forward by the Council in the alternative (see the second indent of paragraph 48 above), seeking, in essence, to have the effects of Decision 2019/354 maintained until the expiry of the period allowed for bringing an appeal against the present judgment, in so far as Implementing Regulation 2019/352 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 2019/354 was effective only until 6 March 2020. 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 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 105 and the case-law cited). Costs 140 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) 2019/354 of 4 March 2019 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) 2019/352 of 4 March 2019 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 Öberg Spineanu-Matei Delivered in open court in Luxembourg on 9 June 2021. E. Coulon S. Papasavvas Registrar President * Language of the case: English. 1 Confidential information omitted.