Judgment;Information — ECLI:EU:T:2022:188
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‑302/19, not published, EU:T:2021:333, paragraph 74 and the case-law cited). 75 The adoption and the maintenance of restrictive measures, such as those laid down in the March 2014 acts, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that State, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 66 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 75 and the case-law cited). 76 Thus, while, under a listing criterion such as that referred to in paragraph 12 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were respected by the authorities of the third State which adopted that decision (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 67 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 76 and the case-law cited). 77 The requirement for the Council to verify that the decisions of third States on which it intends to rely have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures has a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 68 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 77 and the case-law cited). 78 Moreover, although it is true that the fact that a third State is among the States which acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), entails review, by the European Court of Human Rights (‘the ECtHR’), of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 77 above (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 69 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 78 and the case-law cited). 79 According to the case-law, the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 70 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 79 and the case-law cited). 80 Ultimately, when it bases the adoption or the maintenance of restrictive measures such as those in the present case on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, secondly, refer, in the decision imposing restrictive measures, to the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 71 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 80 and the case-law cited). 81 In the present case, such obligations appear all the more inescapable since, as is clear from recital 2 of Decision 2014/119, that decision and the subsequent decisions were adopted as part of a policy aimed at consolidating and supporting the rule of law and respect for human rights in Ukraine (see paragraph 4 above), in accordance with the objectives set out in Article 21(2)(b) TEU. Consequently, the purpose of those decisions, which is, inter alia, to assist the Ukrainian authorities in finding any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation, would be irrelevant as regards those objectives if that finding were vitiated by a denial of justice or even by arbitrariness (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 95). 82 It is in the light of those case-law principles that it is necessary to establish whether the Council complied with its obligations in connection with the adoption of the contested acts in so far as those acts concern the applicant. 83 In that regard, it must be noted that the Council referred in the contested acts to the reasons why it had considered that the decision of the Ukrainian authorities to initiate and conduct criminal proceedings against the applicant for misappropriation of public funds or assets had been adopted in accordance with his rights of defence and his right to effective judicial protection (see paragraph 36 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been so in the present case. 84 Indeed, examination of the merits of the statement of reasons, which goes to the substantive legality of the contested acts and consists, in this case, in ascertaining whether the evidence relied on by the Council has been established and whether it is capable of demonstrating that the observance of those rights by the Ukrainian authorities has been verified, must be distinguished from the question of the statement of reasons, which concerns an essential procedural requirement and is merely a corollary of the Council’s obligation to ensure in advance that those rights are observed (see judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 83 and the case-law cited). 85 The restrictive measures previously adopted were extended and maintained with respect to the applicant by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, and in Article 3 of Regulation No 208/2014, as amended by Regulation 2015/138 (see paragraphs 12 and 13 above). That criterion covers persons who have been identified as responsible for the misappropriation of public funds belonging to the Ukrainian State, including persons subject to investigation by the Ukrainian authorities. 86 It is apparent from reasonson which the contested acts are based, referred to in paragraph 36 above, and from the letter of 6 March 2020 that the Council relied, in order to decide to maintain the applicant’s name on the list, on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences constituting misappropriation of public funds or assets, which was established, inter alia, by the PGO’s letters and by certain judicial decisions. 87 The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgments of 11 July 2019, Yanukovych v Council (T‑245/16 and T‑286/17, not published, EU:T:2019:505); of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2019:676); and of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2021:333), on the decision of the Ukrainian authorities to initiate and conduct criminal investigation proceedings relating to an offence of misappropriation of public funds belonging to the Ukrainian State. 88 It must also be noted that when, by the contested acts, the Council amended the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, it added – as it had done when adopting the March 2019 acts – a new section entirely devoted to the rights of the defence and the right to effective judicial protection, which is divided into two parts. 89 The first part of that section contains a simple, general reference to the rights of the defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, reference is made first of all to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. It is then stated, first, that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local court in the presence of the complainant or his or her defence lawyer or legal representative. Secondly, it is stated, inter alia, that Article 309 of that code specifies the decisions of investigating judges that may be challenged on appeal. Lastly, it is made clear that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible pursuant to a ruling by the investigating judge or a court. 90 The second part of the section concerns respect for the rights of defence and the right to effective judicial protection of each person whose name appears on the list. As regards more specifically the applicant, it is stated that, according to the information in the Council’s file, his rights of defence and his right to effective judicial protection were respected in the course of the criminal proceedings on which the Council relied, as is apparent, inter alia, from ‘a number of Court decisions relating to the seizure of property and … the decision … of 27 June 2018 cancelling the resolution of the prosecution refusing to grant the [application by the applicant’s legal representatives for the closure of] the investigation’ (see paragraph 36 above). 91 In the letter of 6 March 2020 sent to the applicant (see paragraph 37 above), the Council stated first of all that the information received from the PGO confirmed that the applicant remained subject to proceedings [confidential] in Ukraine for misappropriation of public funds or assets. Next, it indicated, first, that pending the implementation of the decision of 27 June 2018, those proceedings were still ongoing. Secondly, as regards the question of competence, the Council stated that the pre-trial investigation in those proceedings had been transferred to the Main Investigative Department of the National Police of Ukraine on 18 November 2019. Finally, as regards observance of the applicant’s rights of defence and his right to effective judicial protection, the Council stated that it was apparent from the decision of 27 June 2018, delivered following a public hearing in which the applicant’s lawyers participated and annulling the PGO’s decision by which it refused to grant the application for closure of the investigation lodged by the applicant’s legal representatives, that those rights had been respected. 92 Thus, it is apparent from a combined reading of the reasons set out in the contested acts and in the letter of 6 March 2020 that proceedings [confidential] are the only proceedings in respect of which the Council demonstrates that it did actually verify whether the applicant’s rights of defence and his right to effective judicial protection had been respected, which was, moreover, confirmed by the Council itself in response to a question put by the Court at the hearing. 93 In that regard, it must be observed, at the outset, that the Council has failed to demonstrate to what extent the judicial decisions referred to in paragraph 90 above are evidence of observance of the applicant’s rights of defence and his right to effective judicial protection in the course of proceedings [confidential]. As stated in paragraphs 76 and 77 above, the Council was required, in this case, before deciding to maintain the restrictive measures at issue, to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct criminal investigation proceedings in relation to offences constituting the misappropriation of public funds or assets allegedly committed by the applicant had been taken in accordance with those rights of the applicant (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 92 and the case-law cited). 94 From that point of view, both the decision of 27 June 2018 annulling the PGO’s decision not to grant the application for the closure of the investigation made by the applicant’s legal representatives and the judicial decisions relating to the seizure of property cannot be identified as decisions to initiate and conduct the investigation procedure justifying the maintenance of the restrictive measures at issue, given that they are incidental decisions. That said, it may be accepted that, from a substantive point of view, since those decisions were delivered by a court, they were actually taken into account by the Council as the factual basis justifying the maintenance of the restrictive measures at issue (see, to that effect and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 93 and the case-law cited). 95 It must therefore be ascertained whether the Council was right to consider that those decisions demonstrated that the applicant’s rights of defence and his right to effective judicial protection had been respected. 96 First of all, as regards the judicial decisions concerning the seizure of the applicant’s property, which are not included in the case file, it must be stated that, according to the information provided by the PGO, they were made by the investigating judge of the Pechersk District Court between July 2014 and April 2015, that is to say, approximately 5 years and 8 months and 4 years and 11 months before the adoption of the contested acts, respectively. It follows that those decisions, the legality of which had, moreover, been challenged by the applicant in a number of respects and in respect of which the Council itself acknowledged in the rejoinder and in response to a question from the Court at the hearing, that they had limited evidential value, are not sufficient to establish that proceedings [confidential], on which the Council sought to rely in order to maintain, for the period from March 2020 to March 2021, the restrictive measures at issue vis-à-vis the applicant, were conducted in accordance with his rights of defence and his right to effective judicial protection (see, to that effect and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 109 and the case-law cited). 97 Similar considerations may be formulated concerning the decision of 27 June 2018, since that decision was also taken well before the adoption of the contested acts and the annual periodic review of the applicant’s situation which preceded their adoption. 98 Moreover, the General Court has already had the opportunity to rule on the decision of 27 June 2018 and the decisions relating to the seizure of the applicant’s property, in the case which gave rise to the judgment of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2019:333, paragraphs 106 to 110), and, with regard solely to the decisions to seize property, in the cases which gave rise to the judgments of 11 July 2019, Yanukovych v Council (T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraphs 72 and 91 to 93), and of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2021:676, paragraphs 82 and 92 to 95), against which no appeal was brought before the Court of Justice, by ruling that those decisions were not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection were respected in the proceedings at issue. It must be noted that General Court cannot completely disregard its reasoning concerning those decisions in those cases, which involve the same parties and essentially raise the same legal issues. 99 As regards, more specifically, the decision of 27 June 2018, it must be observed that the Court, after having noted that such a decision could be relied on as an example of respect for the applicant’s rights of defence and his right to effective judicial protection, as the Council contends, stated however that the Council’s verification should have covered both the PGO’s decision of 11 October 2017 rejecting the application to close the investigation made by the applicant, and the PGO’s unsubstantiated failure to take any action at all following the decision of 27 June 2018 which required it to reconsider that application. According to the Court, in so doing, the PGO rendered that decision devoid of any practical effect and thereby deprived the applicant of his right to effective judicial protection (judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 107). 100 In the present case, the Council did not put forward, in its pleadings, any evidence that would have enabled the General Court to reach a conclusion different to that reached in the judgment of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2021:333), as to the evidential value of those decisions. 101 In any event, it must also be noted that all the judicial decisions referred to above fall within the scope, inter alia, of the criminal proceedings which justified maintaining the applicant’s name on the list and are merely incidental to those proceedings since they are either precautionary or procedural in nature. Such decisions, which may serve at most to establish the existence of a sufficiently solid factual basis, in that, in accordance with the applicable listing criterion, the applicant was subject to criminal proceedings relating to offences of misappropriation of funds or assets belonging to the Ukrainian State, are not ontologically capable, alone, of demonstrating that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and his right to effective judicial protection, which it is for the Council to verify, in accordance with the case-law recalled in paragraph 77 above (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 94 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 110 and the case-law cited). 102 In addition, the Council does not put forward any document, contained in the file of the procedure resulting in the adoption of the contested acts, which shows that the Council examined the judicial decisions referred to and that it was able to conclude from that examination that the essence of the applicant’s procedural rights had been observed. By contrast, it is apparent from the case file that the Council was not in possession of the decisions relating to the seizures of the applicant’s property and only had a short version of the decision of 27 June 2018 that did not include a statement of reasons. As regards the latter decision, it should be noted that in response to the Council’s request of 9 December 2019, which states that, according to the applicant’s lawyers, the full version of that decision had been made available to them on 6 September 2019, the PGO merely indicated in its letter of 28 December 2019 that it had not received a copy of the decision, but it had made an application to the Pechersk District Court to obtain it and, once it had received it, it would re-examine the application made by the applicant’s legal representatives. 103 As the applicant rightly states, that assertion by the PGO is invalidated by a range of information of which the Council was aware and which it nevertheless did not take into account. Indeed, the applicant had informed the Council that a copy of the full version of the decision of 27 June 2018 was sent to the PGO on 6 November 2019, that is to say well before the latter’s letter to the Council of 28 December 2019, and, on that occasion, the applicant had asked again that the application to close the investigation be reconsidered. Furthermore, it is apparent from a letter of 22 January 2020, sent to the applicant’s legal representatives in Ukraine by the Pechersk District Court, that a full version of that decision had been delivered in person to the prosecutor at that court’s premises. 104 In its defence, the Council merely notes, first, that the PGO had explained, in response to its question, that the application lodged by the applicant’s legal representatives would be reconsidered. However, that statement does not correspond to the wording of the PGO’s letter in which it had stated that it would reconsider that application once it had received the full version of the decision of 27 June 2018. Secondly, that response by the PGO was reasonable in that it is not disputed that the investigating judge did not rule on the application itself. 105 It follows that, prior to the adoption of the contested acts, the PGO did not comply with the decision relied on by the Council to demonstrate that the applicant’s rights of defence and his right to an effective judicial remedy had been respected and it even provided a justification for not doing so, the misleading nature of which the Council would have been able to assess had it not entirely ignored the evidence adduced by the applicant; this supports the considerations set out by the General Court in paragraph 107 of the judgment of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2021:333) (see paragraph 99 above). 106 The mere reference by the Council to letters and statements of the Ukrainian authorities in which those authorities set out the manner in which the applicant’s fundamental rights had been respected and gave assurances in that regard cannot suffice for the view to be taken that the decision to maintain his name on the list has a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 77 above (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 44). 107 Following the examination of the judicial decisions referred to by the Council in the contested acts, it must be concluded that, even taken as a whole, they are not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection had been respected during the criminal proceedings on which it relied. 108 In that regard, it must also be observed that the Council was under an obligation to carry out such verification irrespective of any evidence adduced by the applicant to show that, in the present case, the applicant’s rights of defence and his right to effective judicial protection had been infringed, the mere possibility of invoking an infringement of those rights before the Ukrainian courts pursuant to provisions of the Code of Criminal Procedure not being sufficient in itself to demonstrate that those rights were respected by the Ukrainian judicial authorities (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 113 and the case-law cited). 109 That conclusion cannot be called into question by the Council’s argument that the applicant has not put forward any evidence capable of demonstrating that his particular situation had been affected by the alleged problems of the Ukrainian judicial system. According to settled case-law, it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 45 and the case-law cited). 110 Moreover, nor does the Council explain how, in particular, the mere existence of the judicial decisions referred to in paragraph 90 above permits the inference that respect for the applicant’s right to effective judicial protection was guaranteed. In that regard, it should be noted that, as the applicant had argued on numerous occasions in the administrative proceedings preceding the adoption of the contested acts, proceedings [confidential], initiated in 2014 and currently suspended, were still at the stage of the pre-trial investigation, itself recently transferred to the Ukrainian National Police Department, with the result that they had not been brought before a Ukrainian court for consideration of the merits, the Ukrainian court having been seised only of procedural matters (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 115). 111 The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess the observance of the right to effective judicial protection (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 98 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 116 and the case-law cited), provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. 112 In so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, such as those provided for by Article 6 thereof, their meaning and scope are, under Article 52(3) of the Charter, the same as those laid down by the ECHR. 113 In that regard, it should be noted that, in its interpretation of Article 6 ECHR, the ECtHR has stated that the purpose of the reasonable time principle is, inter alia, to protect persons charged with a criminal offence against excessive procedural delays and to avoid leaving them in a state of uncertainty about their fate for too long, and that that principle underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited). The ECtHR has also held that breach of that principle may be established, inter alia, where the investigation stage of criminal proceedings has been characterised by a certain number of periods of inactivity attributable to the authorities responsible for that investigation (see, to that effect, ECtHR, 6 January 2004, Rouille v. France, CE:ECHR:2004:0106JUD005026899, §§ 29 to 31; 27 September 2007, Reiner and Others v. Romania, CE:ECHR:2007:0927JUD000150502, §§ 57 to 59; and 12 January 2012, Borisenko v. Ukraine, CE:ECHR:2012:0112JUD002572502, §§ 58 to 62). 114 It is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, and that this has been on account, essentially, of the continuing conduct of the same preliminary investigations, as is the case in this instance, the Council is required to verify whether that person’s right to be tried within a reasonable time has been respected before the adoption of a decision to extend the application of those measures (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 101, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 119; see also, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 114 and the case-law cited). 115 In that regard, as has been noted in paragraph 81 above, it is important to bear in mind the precautionary nature of freezing the applicant’s assets and the purpose thereof, that is to say, as the Council noted in its pleadings and at the hearing, to assist the Ukrainian authorities with establishing any misappropriation of State funds that has taken place, on conclusion of the judicial proceedings, and to ensure that it remains possible for those authorities, ultimately, to recover the proceeds of that misappropriation. It therefore falls to the Council to ensure that that measure, justified precisely by its temporary nature, is not extended unnecessarily, to the detriment of the applicant’s rights and freedoms, on which it has a significant negative impact, merely because the criminal proceedings on which it is based and which are still at the pre-trial investigation stage have been left open, in essence, indefinitely, without any real justification (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 115 and the case-law cited). 116 It is also apparent from the case-law of the ECtHR concerning the interpretation of Article 6 ECHR, relied on by the applicant at the hearing, that delays caused by suspensions of the proceedings by the authorities, the decisions to join and separate the various criminal proceedings and the referrals of a case back to the authorities for further investigation in the context of the same proceedings may be regarded as evidence of a serious deficiency in the operation of the criminal justice system (see, to that effect, ECtHR, 23 June 2016, Krivoshey v. Ukraine, CE:ECHR:2016:0623JUD000743305, § 97 and the case-law cited). In the present case, in the light of the prolonged duration of the pre-trial investigation in question, it follows from what has been stated in paragraph 114 above that the Council was required, prior to the adoption of the contested acts, to satisfy itself that the duration of that investigation was not unreasonable. Moreover, from that point of view, the Council should have taken into account any evidence of possible deficiencies in the Ukrainian criminal justice system apparent from the case file, that is to say, in the present case, the fact that proceedings [confidential] had been suspended and reopened on several occasions and the pre-trial investigation conducted in those proceedings had recently been transferred to another investigating body (see, inter alia, paragraph 110 above), without entailing any progress in the matter, instead of merely relying on PGO’s explanations exclusively as a basis for its assessment. 117 As stated by the applicant in his letters and pleadings, since it was opened on 8 May 2014, the pre-trial investigation in proceedings [confidential] was suspended on numerous occasions including on 13 March 2019, the latest suspension, and has been active only for a few days in total. Moreover, as the applicant observes without being contradicted by the Council, it must be observed that, in its statements, the PGO merely recalled the information which it had previously provided to the Council in its letters of 10 October 2014, 4 September 2015, 30 November 2015, 25 July 2016, 16 November 2016, 5 January 2018, 20 October 2018, 10 July 2018, 2 November 2018 and 29 December 2018, which demonstrates the lack of any progress in that investigation. 118 Although the Council carried out further verifications with the Ukrainian authorities in order to be informed of the reasons justifying the suspension of proceedings [confidential], it is apparent from the file that it was content with the explanations provided by the PGO, according to which the suspension was linked to the search for the applicant, even though in the decision of 7 February 2018, adopted in the context of proceedings [confidential], the investigating judge of the Pechersk District Court had stated, inter alia, that the documents provided in support of the PGO’s application seeking permission to investigate in absentia did not confirm that the applicant was in hiding in order to avoid criminal liability (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 102). 119 Furthermore, although it does not have any bearing on the present case, in so far as the decision of the investigating judge of the Pechersk District Court was only delivered on 9 September 2020 and is therefore subsequent to the adoption of the contested acts, it should nevertheless be noted that, by that decision, an earlier suspension decision of 29 September 2014 was annulled, in the context of proceedings [confidential], on the ground that the PGO was aware of the applicant’s location and it therefore had no reason to include his name on the list of wanted persons. 120 As regards the argument put forward by the Council in its rejoinder that, in accordance with the case-law of the ECtHR, the flight of an accused person has in itself certain repercussions on the scope of the guarantee provided by Article 6(1) ECHR as regards the duration of investigation, it must be observed that, first, assuming that the applicant really absconded, the fact remains that proceedings [confidential] on which the Council relies, relating to acts allegedly committed in 2013, were still at the stage of the pre-trial investigation six years after they were initiated and, secondly, that circumstance had at least been called into question by the investigating judge of the Pechersk District Court in proceedings [confidential] (see paragraph 118 above), a circumstance of which the Council was aware. 121 Finally, the Council should at the very least have assessed all the evidence adduced by the PGO and the applicant and indicated the reasons for which, following an independent and thorough analysis of that evidence, it was able to conclude that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been complied with so far as concerns respect for his right to have his case heard within a reasonable time (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 123 and the case-law cited). That is all the more so in the light of the total lack of information from the PGO in relation to the reconsideration of the application for the closure of proceedings [confidential] made by the applicant following the decision of 27 June 2018 122 It cannot therefore be concluded, having regard to the documents in the file, that the information available to the Council at the time of the adoption of the contested acts enabled it to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct the criminal proceedings at issue had been adopted and implemented in accordance with the applicant’s right to effective judicial protection and, more specifically, his right to have his case heard within a reasonable time. 123 It must also be noted in that regard that the well-established case-law according to which, in the event of the adoption of a decision to freeze funds, such as the decision adopted in respect of the applicant in the contested acts, it is not for the Council or the Courts of the European Union to verify whether or not the investigation of the person concerned by those restrictive measures in Ukraine was well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of those measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 125 and the case-law cited). 124 Lastly, the Council’s argument that, in essence, it is not for the Council to call into question the decisions of the Ukrainian courts, which benefit from a kind of presumption of legality, must be rejected. While it is true that it may rely on such decisions as evidence of the existence of criminal proceedings relating to allegations against the applicant of misappropriation of public funds, the same cannot be said as regards evidence of the proper conduct of those criminal proceedings, including as regards respect for his rights of defence and his right to effective judicial protection. As noted in paragraph 77 above, in order to ensure that there is a sufficiently solid factual basis for maintaining the applicant’s name on the list, the Council must verify not only whether there are ongoing judicial proceedings concerning the applicant for conduct that could be characterised as misappropriation of public funds, but also whether, in the context of those proceedings, those rights of the applicant were respected (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraphs 126 and 127 and the case-law cited). 125 That is particularly so where, as in this case, the Council was not in possession of certain decisions and certain information on which it intended to rely and, moreover, the applicant raised doubts as to whether his rights had been respected in the context of the adoption of the judicial decisions on which the Council intended to rely. In any event, it is not inconceivable that, having regard in particular to the observations submitted by the applicant, that institution might be obliged to seek clarification from the Ukrainian authorities regarding respect for those rights (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 128 and the case-law cited), which has not been the case here. 126 In the light of all of the foregoing considerations, it has not been established that the Council satisfied itself, prior to the adoption of the contested acts, that the Ukrainian judicial authorities complied with the applicant’s rights of defence and his right to effective judicial protection in the criminal proceedings on which the Council relied. It follows that, in deciding to maintain the applicant’s name on the list, the Council made an error of assessment. 127 In those circumstances, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law and arguments put forward by the applicant. Costs 128 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Annuls Council Decision (CFSP) 2020/373 of 5 March 2020 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2020/370 of 5 March 2020 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Oleksandr Viktorovych Yanukovych was maintained on the list of persons, entities and bodies subject to those restrictive measures; 2. Orders the Council of the European Union to pay the costs. 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.