Judgment;Abstract — ECLI:EU:T:2021:52
Date: 2021-02-03
Language of the case: French
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 whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 60 and the case-law cited). 66 The adoption and the maintenance of restrictive measures, such as those laid down in Decision 2014/119 and Regulation No 208/2014, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that State, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 61 and the case-law cited). 67 In addition, while, under the listing criterion, such as that referred to in paragraph 13 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to observe the rights of defence and the right to effective judicial protection means that it must satisfy itself that those rights were observed by the authorities of the third State which adopted that decision (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 62 and the case-law cited). 68 The requirement for the Council to verify that the decisions of third States on which it intends to rely have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures rests on a sufficiently solid factual basis before having itself verified whether the rights of defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 63 and the case-law cited). 69 Moreover, although it is true that the fact that a third State is among the States which have acceded to the ECHR entails review, by the 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 68 above (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 64 and the case-law cited). 70 According to the case-law, the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely has been adopted in accordance with the rights of defence and the right to effective judicial protection. Thus, it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 65 and the case-law cited). 71 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, second, refer, in the decision imposing restrictive measures, to the reasons why it considers that that decision of the third State was adopted in accordance with those rights (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 66). 72 It is in the light of those case-law principles that it is necessary to determine whether the Council complied with those obligations. 73 As a preliminary point, it must be noted that, although the Council set out in the contested acts (see paragraph 37 above) why it considered that the decision of the Ukrainian authorities to initiate and conduct criminal proceedings against the applicant for the misappropriation of public funds or assets was adopted in accordance with the rights of defence and the right to effective judicial protection, it is nevertheless necessary to verify whether the Council was correct in its view that those authorities observed the applicant’s rights in the proceedings on which the contested acts are based. 74 The examination of the merits of the statement of reasons, which concerns the substantive legality of the contested acts and consists, in the present case, in ascertaining whether the evidence relied on by the Council has been established and whether it is capable of demonstrating that the observance of those rights by the Ukrainian authorities has been verified, must be distinguished from the question of the statement of reasons, which concerns an essential procedural requirement and is merely a corollary of the Council’s obligation to ensure in advance that those rights are observed (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 69 and the case-law cited). 75 The applicant was made the subject of new restrictive measures adopted by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as stated in Decision 2015/143, and in Article 3 of Regulation No 208/2014, as stated in Regulation 2015/138 (see paragraphs 13 and 14 above). That criterion provides for the freezing of funds of 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. 76 It must be observed that the Council, in deciding to maintain the applicant’s name on the list, relied on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences concerning the misappropriation of public funds or assets and connected with an abuse of office, evidenced by the PGO’s letters of which the applicant received copies (see paragraph 35 above). 77 The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgment of 26 September 2019, Klymenko v Council (C‑11/18 P, not published, EU:C:2019:786), and the judgment of 25 June 2020, Klymenko v Council (T‑295/19, EU:T:2020:287), on the decision of the Ukrainian authorities to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of Ukrainian State funds. 78 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 for the first time in the March 2019 acts – a section entirely devoted to the rights of defence and the right to effective judicial protection, which is divided into two parts. 79 The first part contains a simple, general reference to the rights of defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, first of all, reference is made to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. Next, first, it is stated that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, actions or omissions of the investigator or public prosecutor must be considered by an investigating judge or a local court in the presence of the complainant or his defence lawyer or legal representative. Second, it is stated, inter alia, that Article 309 thereof specifies which decisions of investigating judges may be challenged on appeal. Lastly, it is stated that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible subject to a ruling by the investigating judge or a court. 80 The second part of the section concerns the application of the rights of defence and the right to effective judicial protection of each of the listed persons. Specifically as regards 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 criminal proceedings on which the Council relied, as is demonstrated in particular by the decisions of the investigating judge of 1 March 2017 and 5 October 2018, on the one hand, by the decisions of the investigating judge of 8 February 2017 and 19 August 2019, on the other, as well as by the fact that the defence was in the process of familiarising itself with the content of the criminal file (see paragraph 37 above). 81 On one hand, in the letter of 6 March 2020 (see paragraph 38 above), the Council merely stated that the certificates issued by the PGO established that the applicant continued to be the subject of Cases 113 and 521 for misappropriation of public funds or assets and that they had been assigned to the National Anti-Corruption Bureau of Ukraine on 19 and 21 November 2019 respectively. On the other hand, with regard to respect for the rights of defence and the right to effective judicial protection of the applicant, the Council stated that compliance with those rights was evidenced by the court decisions referred to in paragraph 80 above. As regards, in particular, the decision of the investigating judge of 19 August 2019, given in the context of Case 113, it indicated that notices of suspicion had been served on the applicant on 22 December 2014 and 19 August 2016, that the prosecution had proved the existence of reasonable suspicion, that, on 10 June 2019, the applicant’s name had been placed on an international list of wanted persons, that it had been proved that he was hiding from the authorities conducting the preliminary investigation, and that there was sufficient reason to believe that he would continue to do so. 82 Thus, it appears from a combined reading of the grounds set out in the contested acts and the letter of 6 March 2020, that although the Council explicitly attests to having verified compliance with the applicant’s rights of defence and right to effective judicial protection in the two sets of proceedings cited above in paragraph 81, it provided further details only in relation to Case 113, on the basis of which the decision of the investigating judge of 19 August 2019 was adopted. 83 In that regard, it must be observed, as a preliminary point, that the Council has failed to demonstrate how all the decisions of the investigating judge of the Pechersk District Court, referred to in paragraph 80 above, which are acts of a purely procedural nature, are evidence that the applicant’s rights of defence and right to effective judicial protection in Cases 113 and 521 have been observed. As stated in paragraphs 65 to 67 above, in the present case, the Council was required, before deciding to maintain the restrictive measures at issue, to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct criminal investigation proceedings in relation to offences constituting the misappropriation of public funds or assets and abuse of office by a public office-holder had been taken in accordance with those rights of the applicant (judgment of 25 June 2020, Klymenko v Conseil, T‑295/19, EU:T:2020:287, paragraph 78). 84 From that perspective, those decisions cannot be identified, at least not formally, 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 they were adopted by a court, at least as regards the decision of the investigating judge of 19 August 2019, which is relevant from a temporal point of view, that those decisions were actually taken into account by the Council as the factual basis justifying the maintenance of the measures at issue (see, to that effect, judgment of 25 June 2020, Klymenko v Conseil, T‑295/19, EU:T:2020:287, paragraph 79). 85 It must therefore be ascertained whether the Council was right to consider that those decisions, as well as the fact that the process of familiarising the applicant’s defence with the contents of the criminal file was under way at the time the contested acts were adopted, established that the applicant’s rights of defence and right to effective judicial protection had been respected. 86 As regards, first of all, the decision of the investigating judge of 19 August 2019, it should be observed that, contrary to the Council’s submissions, it is not apparent from that decision that the applicant’s rights of defence and right to effective judicial protection were respected in the present case. Although it is true, as the Council points out in its letter of 6 March 2020 (see point 81 above), that the investigating judge of the Pechersk District Court was able to conclude that, in Case 113 to which this decision relates, the applicant was a suspected person, that he was on an international list of wanted persons, that the public prosecutor had proved that he was hiding from the authorities in charge of the preliminary investigation and that there was sufficient reason to believe that he would continue to do so, the fact remains that it does not appear from the documents in the case file that the Council had in fact taken into consideration the information that the applicant had communicated to it in his letter of 23 January 2020, as well as previously in his letters of 19 December 2018 and 4 February 2019. 87 The applicant had submitted, inter alia, with supporting documents, that his name was not included on the list of persons sought by Interpol and that, as a result, the investigating judge was not in a position to take certain decisions which the Council considered to be indicative of respect for the applicant’s rights of defence and right to effective judicial protection. 88 In that regard, it should be observed that it does not appear from the documents in the file that the Council verified the information on which the examining magistrate relied in order to conclude that the applicant’s name was included on an ‘international list of wanted persons’. Furthermore, the Council did not explain why it had simply accepted the unsubstantiated assertions of the PGO and the investigating judge in that regard, despite the documents showing that, as at 20 June 2019, the applicant’s name did not appear on the list of persons wanted by Interpol. 89 That aspect is not without importance in the assessment of whether the applicant’s rights of defence and right to effective judicial protection have been observed, in the light of Article 193-6 of the Code of Criminal Procedure, according to which, as stated in the decision of the investigating judge of 19 August 2019, the fact of inclusion on an international wanted persons list is one of the conditions which must be established by the public prosecutor when seeking the application of a preventive measure of detention in custody (see, to that effect and by analogy, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 87). 90 In that decision, the investigating judge relied on the prosecutor’s resolution of 10 June 2019 to make a finding that the applicant’s name was included in such a list, without, however, indicating that that evidence came from the prosecutor. As regards the PGO, it must be held that it merely indicated, in the two tables annexed to the letter of 1 November 2019, which summarised the information on the status of Cases 113 and 521, and which was intended to explain, in particular, how the applicant’s rights of defence and right to effective judicial protection had been respected, that the ‘suspect [was] on the wanted list’. 91 The argument put forward by the Council, that the certificates issued by the Secretariat of the Commission for the Control of Interpol’s Files were not conclusive cannot call those findings into question. The information from the PGO concerning the inclusion of the applicant’s name on a ‘wanted list’ did not, in any event, enable the Council to check whether the prosecutor had complied with the condition relating to such inclusion and, consequently, whether the investigating judge, when adopting his decision, had respected the applicant’s rights of defence and right to effective judicial protection (see paragraph 89 above). In those circumstances, the Council could not be satisfied with the information, either laconic or inaccurate, which was available to it and should, at the very least, have sought clarification from the Ukrainian authorities. 92 Moreover, although it has no bearing on the present case, in so far as, as the Council rightly points out, the judgment of 13 May 2020 postdates the adoption of the contested acts, it must be observed, nonetheless, that it follows from that judgment, first, that the mere fact that the Prosecutor takes a procedural decision in the form of a resolution to place a person on the international list of persons sought by Interpol is not sufficient, it being also a requirement that all necessary measures are to be taken to implement such a resolution, which had in no way been proven by the prosecutor, and, second, that such an interpretation of Article 193-6 of the Code of Criminal Procedure had already been made by the same appeals chamber of the High Court for Anti-Corruption in several court decisions taken between September 2019 and February 2020. 93 Next, as regards the decisions of the investigating judge of 1 March 2017, 5 October 2018 and 8 February 2017, the first two concerning the opening of a special investigation in absentia and the third concerning the approval of a preventive detention measure, it should be observed that those decisions were taken well before the adoption of the contested acts. It follows that those acts are insufficient to establish that the decision of the Ukrainian judicial authorities, on which the Council relies in order to maintain the restrictive measures at issue in respect of the applicant for the period from March 2020 to March 2021, was adopted in compliance with the applicant’s rights of defence and right to effective judicial protection. Moreover, the General Court has already had occasion to rule on both the decision of the investigating judge of 1 March 2017 and the decision of 5 October 2018 in the case giving rise to the judgment of 25 June 2020, Klymenko v Council (T‑295/19, EU:T:2020:287, paragraphs 78 to 88 and 91), which was not contested by the Council, and which held that those decisions did not establish that the applicant’s rights had been respected in the proceedings in question. 94 In any event, it must also be observed that all the judicial decisions mentioned above are related to the criminal proceedings which justified the listing and maintenance of the applicant’s name on the list and are merely ancillary to those proceedings, since they are procedural in nature. Such decisions, which may at most serve to establish the existence of a sufficiently solid factual basis, namely that, in accordance with the listing criterion, the applicant was subject to criminal proceedings concerning, inter alia, an offence of misappropriation of Ukrainian State funds or assets, are not ontologically capable, in themselves, of demonstrating that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant was, in essence, taken in accordance with his rights of defence and his right to effective judicial protection (see, to that effect, judgment of 25 June 2020, Klymenko v Conseil, T‑295/19, EU:T:2020:287, paragraph 92). 95 In any event, the Council does not refer to any document in the case file which led to the adoption of the contested acts that shows that it examined the decisions of the Ukrainian courts from which it was able to conclude that the essence of the applicant’s procedural rights had been observed. 96 Finally, as regards the process of familiarising the defence with the content of the criminal file, which was still under way at the time of the adoption of the contested acts, it should be noted, first, that the PGO does not provide any information as to the nature and duration of that process and, second, that it appears from the little information provided by the PGO that that process has been under way since 21 April 2017, which is the date of closure of the preliminary investigation in Case 113 and since 3 December 2018, which is the date of closure of the preliminary investigation in Case 521. 97 However, contrary to its claims, the Council has still failed to show to what extent the information available to it concerning the process of familiarisation of the defence in Cases 113 and 521 and the relevant court decisions led it to conclude that the applicant’s rights of defence and right to effective judicial protection had been respected, whereas, as the applicant argued, those proceedings, which concerned acts allegedly committed between 2011 and 2014, were still at the preliminary investigation stage and, moreover, had been transferred, already closed, to other investigating authorities in November 2019, with the result that the cases in question had not yet been submitted to a Ukrainian court with regard to the substance. 98 The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess compliance with the right to effective judicial protection, 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 (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 96 and the case-law cited). 99 In so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, such as those provided for by Article 6, their meaning and scope are, under Article 52(3) of the Charter, the same as those laid down by the ECHR. 100 In that regard, it must be noted that, in its interpretation of Article 6 ECHR, the ECtHR has held that the purpose of the reasonable time principle is, inter alia, to protect persons charged with a criminal offence against excessive procedural delays and to prevent them from being left in a state of uncertainty about their fate for too long, and also to prevent delays which might jeopardise the effectiveness and credibility of the administration of justice (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited). Furthermore, the ECtHR has also held that infringement of that principle could be established, inter alia, where the investigation stage of criminal proceedings has been characterised by a certain number of periods of inactivity attributable to the authorities responsible for that investigation (see, to that effect, ECtHR, 6 January 2004, Rouille v. France, CE:ECHR:2004:0106JUD005026899, §§ 29 to 31; 27 September 2007, Reiner and Others v. Romania, CE:ECHR:2007:0927JUD000150502, §§ 57 to 59; and 12 January 2012, Borisenko v. Ukraine, CE:ECHR:2012:0112JUD002572502, §§ 58 to 62). 101 Moreover, it is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, on account, essentially, of the continuing conduct of the same preliminary investigation by the PGO or by another investigative authority, the Council is required to explore in greater detail the question of the possible infringement of that person’s fundamental rights by the Ukrainian authorities (see, to that effect, judgment of 30 January 2019, Stavytskyi v Council, T‑290/17, EU:T:2019:37, paragraph 132). 102 Therefore, in the present case, the Council should, at the very least, have indicated why, despite the applicant’s arguments set out in paragraph 97 above, it considered that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities, which is clearly a fundamental right, had been respected in so far as concerns the question of whether his case had been heard within a reasonable time. (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 100). 103 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 had been taken in accordance with the applicant’s right to effective judicial protection and his right to have his case heard within a reasonable period. 104 Furthermore, in that regard, it must also be observed that the 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, it is not for the Council or EU judicature to verify whether or not the investigations in Ukraine to which the person concerned by those measures was subject were well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of restrictive measures was taken in accordance with the rights of defence and the right to effective judicial protection (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 102 and the case-law cited). 105 In the light of all the foregoing considerations, it has not been established that the Council, prior to the adoption of the contested acts, assured itself that the Ukrainian judicial authorities had complied with the applicant’s rights of defence and right to effective judicial protection in the criminal proceedings on which the Council relied. It follows that, in deciding to maintain the applicant’s name on the list, the Council made an error of assessment. 106 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. Maintaining the effects of Decision 2020/373 107 In the alternative, the Council asks the Court, in the event that Implementing Regulation 2020/370 is annulled in part, to declare, for reasons of legal certainty, that the effects of Decision 2020/373 be maintained until the annulment in part of Implementing Regulation 2020/370 takes effect. 108 It is evident from the first paragraph of Article 60 of the Statute of the Court of Justice of the European Union that an appeal is not to have suspensory effect. The second paragraph of Article 60 provides, however, that, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for lodging an appeal or, if an appeal is lodged within that period, as from the date of its dismissal. 109 In the present case, Implementing Regulation No 2020/370 is in the nature of a regulation, since it provides that it is binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU (see, to that effect, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 121). 110 The second paragraph of Article 60 of the Statute of the Court of Justice of the European Union is therefore applicable in the present case (judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 122). 111 Finally, as regards the temporal effects of the annulment of Decision 2020/373, it must be recalled that, under the second paragraph of Article 264 TFEU, the Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered definitive. 112 In the present case, a difference between the date when the annulment of Implementing Regulation 2020/370 takes effect and that of Decision 2020/373 would be liable to seriously jeopardise legal certainty, since both acts impose identical measures on the applicant (see, to that effect, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 263). The effects of Decision 2020/373 must therefore be maintained as regards the applicant until the annulment of Implementing Regulation No 2020/370 takes effect. Costs 113 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 Klymenko was maintained on the list of persons, entities and bodies subject to those restrictive measures. 2. Orders the effects of Article 1 of Decision 2020/373 to be maintained in respect of Mr Klymenko until the date of expiry of the period for bringing an appeal, as provided for in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, or, if an appeal is brought within that period, until the date of dismissal of that appeal; 3. Orders the Council of the European Union to pay the costs. Spielmann Spineanu-Matei Mastroianni Delivered in open court in Luxembourg on 3 February 2021. [Signatures] * Language of the case: French.