Judgment;Information — ECLI:EU:T:2023:848
Date: 2023-12-20
Language of the case: English
Court formation: First Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - successful

summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern the question whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 65 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 75 and the case-law cited). 87 The adoption and the maintenance of restrictive measures, such as those laid down in the March 2014 acts, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that State, which was competent to make it, to initiate and conduct criminal-investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 66 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 76 and the case-law cited). 88 Thus, while, under a 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 respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were respected by the authorities of the third State which adopted that decision (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 67 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 77 and the case-law cited). 89 The requirement for the Council to verify that the decisions of third States on which it intends to rely have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures has a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 68 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 78 and the case-law cited). 90 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 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 89 above (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 69 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 79 and the case-law cited). 91 According to the case-law, the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 70 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 80 and the case-law cited). 92 Ultimately, when it bases the adoption or the maintenance of restrictive measures such as those at issue on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, secondly, refer, in the decision imposing restrictive measures, to the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 71 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 81 and the case-law cited). 93 In this instance, such obligations appear all the more inescapable since, as is clear from recital 2 of Decision 2014/119, that decision and the subsequent decisions were adopted as part of a policy to consolidate and support the rule of law and respect for human rights in Ukraine (see paragraph 5 above), based on the objectives set out in Article 21(2)(b) TEU. Consequently, the purpose of those decisions, which is, inter alia, to assist the Ukrainian authorities in finding any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation, would be irrelevant as regards those objectives if that finding were vitiated by a denial of justice or even by arbitrariness (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 95). 94 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. 95 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 right to effective judicial protection (see paragraphs 39 and 44 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been so in this instance. 96 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 13 and 14 above). That criterion covers persons who have been identified as responsible for the misappropriation of Ukrainian State funds, including persons subject to investigation by the Ukrainian authorities. 97 It is apparent from the reasons set out in the contested acts, outlined in paragraphs 39 and 44 above, and from the correspondence between the Council and the applicant, that the Council, in deciding to maintain the applicant’s name on the list both in 2021 and in 2022, relied on the decision of the Ukrainian authorities to initiate and conduct criminal-investigation proceedings relating to an offence of misappropriation of Ukrainian State funds. 98 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); of 9 June 2021, Yanukovych v Council (T‑302/19, not published, EU:T:2021:333); and of 30 March 2022, Yanukovych v Council (T‑292/20, not published, EU:T:2022:188), on the decision of the Ukrainian authorities to initiate and conduct criminal-investigation proceedings relating to an offence of misappropriation of Ukrainian State funds. 99 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 defence and the right to effective judicial protection, which is subdivided into two parts. 100 The first part of that section contains a simple, general reference to the rights of defence and the right to effective judicial protection under the Ukrainian 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. 101 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 the applicant specifically, in the contested acts in Case T‑263/21, it is stated that, according to the information in the Council’s file, the applicant’s rights of defence and his right to effective judicial protection were respected in the criminal proceedings on which the Council relied, as is demonstrated by the fact that ‘the Council has information that the Ukrainian authorities took measures to search for Mr Yanukovych, who is staying in the Russian Federation and avoiding investigation’. 102 That statement of reasons was, in essence, also provided in the letter of 5 March 2021 sent to the applicant (see paragraph 40 above). 103 Thus, it follows from a combined reading of the reasons given in the contested acts in Case T‑263/21 and in the letter of 5 March 2021 that proceedings No [confidential] are the only proceedings in respect of which the Council attests to actually having verified compliance with the applicant’s rights of defence and his right to effective judicial protection in the context of the contested acts in that case. 104 In addition, it should be noted at the outset that the Council, in the context of the contested acts in Case T‑263/21 and in order to demonstrate that it actually verified that the applicant’s rights of defence and his right to effective judicial protection had been respected, does not rely on any judicial decision, but merely refers to the fact that it has ‘information that the Ukrainian authorities took measures to search for Mr Yanukovych, who is staying in the Russian Federation and avoiding investigation’. As the applicant rightly observes, the Council does not point to a single piece of information on its file or a court decision capable of demonstrating that it verified that his rights of defence and right to effective judicial protection had been respected in the only set of proceedings on which it relies. In those circumstances, the Council has not succeeded in demonstrating that, as regards the contested acts in Case T‑263/21, it verified that the applicant’s rights of defence and his right to effective judicial protection had been respected. 105 As regards the contested acts in Case T‑257/22, the second part of the section concerning respect for the rights of defence and the right to effective judicial protection of each person whose name appears on the list states, as regards the applicant specifically, that, according to the information in the Council’s file, the applicant’s 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 Supreme Anti-Corruption Court of Ukraine’. According to the Council, ‘in criminal proceeding[s] No [confidential], the Supreme Anti-Corruption Court of Ukraine in its ruling of 25 August 2021 granted permission to conduct a special pre-trial investigation in relation to Mr O. Yanukovych’, ‘the investigating judge confirmed the status of suspect of Mr O. Yanukovych and concluded that the evidence gives reasonable grounds for suspicion that Mr O. Yanukovych committed the criminal offences of which he is suspected’ and ‘the judge also concluded that there is reasonable ground to believe that Mr O. Yanukovych is deliberately evading the investigation and the court in order to avoid criminal liability’. 106 Furthermore, the Council added that, ‘in its ruling of 13 October 2021, the Supreme Anti-Corruption Court of Ukraine imposed detention in custody on Mr O. Yanukovych’, ‘the Court confirmed the status of suspect of Mr O. Yanukovych as well as the reasonable grounds for suspicion that Mr O. Yanukovych committed criminal offences’ and ‘the judge also highlighted that there is a risk of hiding from investigation and the court to avoid criminal liability’. 107 That statement of reasons was, in essence, also provided in the letter of 4 March 2022 sent to the applicant (see paragraph 45 above). 108 Thus, it follows from a combined reading of the reasons given in the contested acts in Case T‑257/22 and in the letter of 4 March 2022 that proceedings No [confidential] are the only proceedings in respect of which the Council attests to actually having verified compliance with the applicant’s rights of defence and his right to effective judicial protection in the context of the contested acts in that case. 109 In that regard, it must be observed at the outset that the Council has failed to show to what extent the judicial decisions referred to in paragraphs 105 and 106 above demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected in proceedings No [confidential]. As stated in paragraphs 88 and 89 above, the Council was required, in the instant 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). 110 From that perspective, neither the decision of the High Anti-Corruption Court of Ukraine of 25 August 2021 granting permission to conduct a special pre-trial investigation in relation to the applicant and confirming his status as suspect in the criminal proceedings referred to in paragraph 105 above, nor its decision of 13 October 2021 confirming its decision of 25 August 2021 and imposing detention in custody on the applicant, concerning the same criminal proceedings, can be identified as decisions to initiate and conduct an investigation procedure justifying the maintenance of the restrictive measures at issue, since they are two 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). 111 It is therefore necessary to ascertain whether the Council was right to consider that those judicial decisions demonstrated that the applicant’s rights of defence and his right to effective judicial protection were respected. 112 Concerning the decisions of 25 August and 13 October 2021 adopted in proceedings No [confidential], it should be noted that even if those decisions were taken in open court and with the participation of the applicant’s lawyers, the fact remains that the Council itself states in its written pleadings that they are decisions of a procedural nature which do not directly affect the rights or legal position of the person against whom they are taken and, as such, are not subject to appeal under the Ukrainian Code of Criminal Procedure. In those circumstances, as the applicant points out, it cannot reasonably be maintained that a decision which does not affect the applicant’s rights or his legal situation and, as such, is not subject to appeal is capable of demonstrating that his rights of defence and right to effective judicial protection were respected. 113 In any event, it should also be pointed out that all the judicial decisions referred to in paragraphs 105 and 106 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 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 right to effective judicial protection, which it is for the Council to verify, in accordance with the case-law recalled in paragraph 89 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). 114 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 this instance, his rights of defence and right to effective judicial protection had been infringed, the mere possibility of invoking an infringement of those rights before the Ukrainian courts pursuant to provisions of the Code of Criminal Procedure not being sufficient in itself to demonstrate that those rights were respected by the Ukrainian judicial authorities (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 121 and the case-law cited). 115 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). 116 Nor, moreover, does the Council explain how, in particular, the mere existence of the judicial decisions referred to in paragraphs 105 and 106 above would permit the inference that respect for the applicant’s right to effective judicial protection was guaranteed. In that regard, it should be noted that proceedings No [confidential] were still at the stage of the pre-trial investigation, which had been transferred to the National Anti-Corruption Bureau a short time before, 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. 117 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), 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. 118 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. 119 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). 120 It is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, on account, essentially, of the continuing conduct of the same preliminary investigations, as is the situation here, the Council is required, prior to the adoption of a decision extending the application of those measures, to verify whether that person’s right to be tried within a reasonable time has been respected (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 101, and of 9 June 2021, Yanukovych v Council, T‑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). 121 In that regard, as has been noted in paragraph 93 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, to assist the Ukrainian authorities with establishing any misappropriation of State funds that has taken place, on conclusion of the judicial proceedings, and to ensure that it remains possible for those authorities, ultimately, to recover the proceeds of that misappropriation. It therefore falls to the Council to ensure that that measure, justified precisely by its temporary nature, is not extended unnecessarily, to the detriment of the applicant’s rights and freedoms, on which it has a significant negative impact, merely because the criminal proceedings on which it is based and which are still at the pre-trial investigation stage have been left open, in essence, indefinitely (see, to that effect and by analogy, judgment of 30 March 2022, Yanukovych v Council, T‑292/20, not published, EU:T:2022:188, paragraph 115). 122 It is also apparent from the case-law of the ECtHR concerning the interpretation of Article 6 ECHR that delays caused by suspensions of the proceedings by the authorities, decisions to join and disjoin different criminal proceedings, and 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 this instance, in the light of the prolonged duration of the pre-trial investigations in question, it follows from what has been stated in paragraph 120 above that the Council was required, prior to the adoption of the contested acts, to satisfy itself that the duration of those investigations 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 this instance, the fact that proceedings No [confidential] and proceedings No [confidential] had been separated from other proceedings, that they had been suspended and reopened on several occasions, and that the pre-trial investigations conducted in those proceedings had been transferred to another investigating body several years after having been initiated (see, in particular, concerning proceedings No [confidential], paragraph 116 above), without entailing any progress, instead of merely relying on the PGO’s explanations exclusively as a basis for its assessment (see, to that effect, judgment of 21 December 2022, Pshonka v Council, T‑242/21, not published, EU:T:2022:839, paragraph 99). 123 With respect to the Council’s argument 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 the procedure, it must be observed that, even if the applicant unlawfully evaded the investigation and absconded, the Council has failed to demonstrate that that conduct had repercussions on the duration of the procedure which are attributable to the applicant. By contrast, it should be noted that in response to the Council’s request for clarification of the impact of the applicant’s absence on the delays in the investigation in relation to proceedings No [confidential], the Ukrainian authorities stated that [confidential]. Moreover, it must be stated that proceedings No [confidential], relating to acts allegedly committed by the applicant between 2007 and 2012, and proceedings No [confidential], relating to acts allegedly committed by the applicant between 2003 and 2013, on which the Council relies, were still, seven and eight years after being initiated, respectively, at the pre-trial investigation stage. 124 It should also be pointed out, as the applicant does, that the question put by the Council to the PGO enquiring about what had prevented it from bringing proceedings No [confidential] and proceedings No [confidential] before a Ukrainian court for consideration of the merits received no response from the PGO. 125 Finally, the Council should at the very least have assessed all the evidence provided by the PGO and the applicant and set out the reasons why, following an independent and thorough analysis of that evidence, it was able to conclude that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been respected with regard to his right to have his case heard within a reasonable time (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 131 and the case-law cited). 126 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 decisions 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, more specifically, his right to have his case heard within a reasonable time. 127 In that regard, it must also be noted 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, it is not for the Council or the Courts of the European Union to verify whether or not the investigation of the person concerned by those restrictive measures in Ukraine was well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of those restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 104 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑302/19, not published, EU:T:2021:333, paragraph 123). 128 Lastly, the Council’s argument that, in essence, it is not for the Council to call into question the decisions of the Ukrainian courts, which benefit from a kind of presumption of legality, must be rejected. While it is true, as the Council submits, that it is entitled to rely on such decisions as evidence of the existence of criminal proceedings relating to allegations against the applicant of misappropriation of public funds, the same cannot be said as regards evidence of the proper conduct of those criminal proceedings, including as regards respect for the applicant’s rights of defence and his right to effective judicial protection. As noted in paragraph 89 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, paragraph 125). 129 That is particularly so where, as here, 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 should 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), which has not been the case here. 130 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 had 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 his name on the list, the Council made an error of assessment. 131 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. 132 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 2021/394 and Decision 2022/376 maintained until the expiry of the period allowed for bringing an appeal against the present judgment, in so far as Implementing Regulation 2021/391 and Implementing Regulation 2022/375, respectively, might be annulled to the extent that they concern the applicant, and, in the event that an appeal might be brought in that respect, until the decision ruling on that appeal, it is sufficient to note that Decision 2021/394 was effective only until 6 March 2022 and Decision 2022/376 was effective only until 6 September 2022. Consequently, the annulment of those decisions by this judgment has no effect on the period after those dates, so that it is not necessary to rule on the question of maintaining the effects of those decisions (see, to that effect, judgment of 21 December 2021, Klymenko v Council, T‑195/21, EU:T:2021:925, paragraph 113 and the case-law cited). Costs 133 Under Article 134(1) of the Rules of Procedure of the General Court, 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 (First Chamber) hereby: 1. Joins Cases T‑263/21 and T‑257/22 for the purpose of the judgment; 2. Annuls Council Decision (CFSP) 2021/394 of 4 March 2021 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2021/391 of 4 March 2021 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as well as Council Decision (CFSP) 2022/376 of 3 March 2022 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) 2022/375 of 3 March 2022 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; 3. Orders the Council of the European Union to pay the costs. Spielmann Mastroianni Brkan Delivered in open court in Luxembourg on 20 December 2023. V. Di Bucci M. van der Woude Registrar President * Language of the case: English. 1 Confidential information redacted.