JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
30 March 2022 (*)
(Common foreign and security policy – Restrictive measures taken having regard to the situation in Ukraine – Freezing of funds – List of the persons, entities and bodies covered by the freezing of funds and economic resources – Maintenance of the applicant’s name on the list – Council’s obligation to verify that the decision of an authority of a third State was taken in accordance with the rights of the defence and the right to effective judicial protection)
In Case T‑291/20,
Viktor Fedorovych Yanukovych, residing in Rostov-on-Don (Russia), represented by M. Anderson, Solicitor, E. Dean and J. Marjason-Stamp, Barristers,
applicant,
v
Council of the European Union, represented by T. Haas, P. Mahnič, S. Van Overmeire and A. Boggio-Tomasaz, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking the annulment of 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 (OJ 2020 L 71, p. 10) 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 (OJ 2020 L 71, p. 1), in so far as those acts maintain the applicant’s name on the list of persons, entities and bodies subject to those restrictive measures,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann, President, R. Mastroianni (Rapporteur) and M. Brkan, Judges,
Registrar: M. Zwozdziak, Administrator,
having regard to the written part of the procedure and further to the hearing on 12 October 2021,
gives the following
Judgment
Background to the dispute
1        The present case has been brought in the context of proceedings relating to the restrictive measures adopted against certain persons, entities and bodies in view of the situation in Ukraine following the suppression of the demonstrations in Independence Square in Kiev (Ukraine) in February 2014.
2        The applicant, Mr Viktor Fedorovych Yanukovych, is the former President of Ukraine.
3        On 5 March 2014, the Council of the European Union adopted Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26) and, on the same date, it adopted Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 1) (together, ‘the March 2014 acts’).
4        Recitals 1 and 2 of Decision 2014/119 state as follows:
‘(1)      On 20 February 2014, the Council condemned in the strongest terms all use of violence in Ukraine. It called for an immediate end to the violence in Ukraine, and full respect for human rights and fundamental freedoms. It called upon the Ukrainian Government to exercise maximum restraint and opposition leaders to distance themselves from those who resort to radical action, including violence.
(2)      On 3 March 2014, the Council agreed to focus restrictive measures on the freezing and recovery of assets of persons identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, with a view to consolidating and supporting the rule of law and respect for human rights in Ukraine.’
5        Article 1(1) and (2) of Decision 2014/119 provides as follows:
‘1.      All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.
2.      No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies listed in the Annex.’
6        The detailed rules governing that freezing of funds are laid down in Article 1(3) to (6) of Decision 2014/119.
7        In accordance with Decision 2014/119, Regulation No 208/2014 requires measures to be adopted for the freezing of funds and resources as provided for by that decision (‘the restrictive measures at issue’), and lays down the detailed rules governing that freezing of funds and resources in terms which are identical, in essence, to those used in that decision.
8        The names of the persons covered by the March 2014 acts are included on the list in the annex to Decision 2014/119 and in Annex I to Regulation No 208/2014 (‘the list’) together with, inter alia, a statement of the reasons for their listing.
9        The applicant’s name appeared on the list with the identifying information ʻformer President of Ukraineʼ and the following statement of reasons:
‘Person subject to criminal proceedings in Ukraine to investigate crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’
10      By application lodged at the Court Registry on 14 May 2014, the applicant brought an action, registered as Case T‑346/14, seeking, inter alia, annulment of the March 2014 acts in so far as they concerned him.
11      On 29 January 2015, the Council adopted Decision (CFSP) 2015/143 amending Decision 2014/119 (OJ 2015 L 24, p. 16), and Regulation (EU) 2015/138 amending Regulation No 208/2014 (OJ 2015 L 24, p. 1).
12      Decision 2015/143 amended, as from 31 January 2015, the listing criteria for the names of the persons targeted by the freezing of funds, replacing the text of Article 1(1) of Decision 2014/119 with the following:
‘1.      All funds and economic resources belonging to, owned, held or controlled by persons having been identified as responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations in Ukraine, and natural or legal persons, entities or bodies associated with them, as listed in the Annex, shall be frozen.
For the purpose of this Decision, persons identified as responsible for the misappropriation of Ukrainian State funds include persons subject to investigation by the Ukrainian authorities:
(a)      for the misappropriation of Ukrainian public funds or assets, or being an accomplice thereto; or
(b)      for the abuse of office as a public office-holder in order to procure an unjustified advantage for him- or herself or for a third party, and thereby causing a loss to Ukrainian public funds or assets, or being an accomplice thereto.’
13      Regulation No 208/2014 was similarly amended by Regulation 2015/138.
14      On 5 March 2015, the Council adopted Decision (CFSP) 2015/364 amending Decision 2014/119 (OJ 2015 L 62, p. 25), and Implementing Regulation (EU) 2015/357 implementing Regulation No 208/2014 (OJ 2015 L 62, p. 1) (together, ‘the March 2015 acts’). Decision 2015/364 replaced Article 5 of Decision 2014/119 by extending the application of the restrictive measures at issue, so far as the applicant was concerned, until 6 March 2016, and replaced the annex to that decision. Implementing Regulation 2015/357 consequently replaced Annex I to Regulation No 208/2014.
15      By the March 2015 acts, the applicant’s name was maintained on the list with the identifying information ‘former President of Ukraine’ and the following new statement of reasons:
‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets.’
16      On 8 April 2015, the applicant modified the form of order sought in Case T‑346/14, in accordance with Article 86 of the Rules of Procedure of the General Court, so as to cover also the annulment of Decision 2015/143, Regulation 2015/138 and the March 2015 acts, in so far as all those acts concerned him.
17      On 4 March 2016, the Council adopted Decision (CFSP) 2016/318 amending Decision 2014/119 (OJ 2016 L 60, p. 76), and Implementing Regulation (EU) 2016/311 implementing Regulation No 208/2014 (OJ 2016 L 60, p. 1) (together, ‘the March 2016 acts’).
18      By the March 2016 acts, the application of the restrictive measures at issue was extended, including with respect to the applicant, until 6 March 2017. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.
19      By application lodged at the Court Registry on 13 May 2016, the applicant brought an action, registered as Case T‑244/16, for annulment of the March 2016 acts in so far as they concerned him.
20      By judgment of 15 September 2016, Yanukovych v Council (T‑346/14, EU:T:2016:497), the General Court annulled the March 2014 acts in so far as they concerned the applicant and dismissed the application for annulment contained in the modification of the application (see paragraph 16 above).
21      On 23 November 2016, the applicant brought an appeal before the Court of Justice, registered as Case C‑598/16 P, against the judgment of 15 September 2016, Yanukovych v Council (T‑346/14, EU:T:2016:497).
22      On 3 March 2017, the Council adopted Decision (CFSP) 2017/381 amending Decision 2014/119 (OJ 2017 L 58, p. 34), and Implementing Regulation (EU) 2017/374 implementing Regulation No 208/2014 (OJ 2017 L 58, p. 1) (together, ‘the March 2017 acts’).
23      By the March 2017 acts, the application of the restrictive measures at issue was extended, including with respect to the applicant, until 6 March 2018. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.
24      By application lodged at the Court Registry on 12 May 2017, the applicant brought an action, registered as Case T‑285/17, for annulment of the March 2017 acts in so far as they concerned him.
25      By judgment of 19 October 2017, Yanukovych v Council (C‑598/16 P, not published, EU:C:2017:786), the Court of Justice dismissed the applicant’s appeal by which he sought to have the judgment of 15 September 2016, Yanukovych v Council (T‑346/14, EU:T:2016:497), set aside in part.
26      On 5 March 2018, the Council adopted Decision (CFSP) 2018/333 amending Decision 2014/119 (OJ 2018 L 63, p. 48), and Implementing Regulation (EU) 2018/326 implementing Regulation No 208/2014 (OJ 2018 L 63, p. 5) (together, ‘the March 2018 acts’).
27      By the March 2018 acts, the application of the restrictive measures at issue was extended, including with respect to the applicant, until 6 March 2019. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.
28      By application lodged at the Court Registry on 13 May 2018, the applicant brought an action, registered as Case T‑300/18, for annulment of the March 2018 acts in so far as they concerned him.
29      On 4 March 2019, the Council adopted Decision (CFSP) 2019/354 amending Decision 2014/119 (OJ 2019 L 64, p. 7), and Implementing Regulation (EU) 2019/352 implementing Regulation No 208/2014 (OJ 2019 L 64, p. 1) (together, ‘the March 2019 acts’).
30      By the March 2019 acts, the application of the restrictive measures at issue was extended until 6 March 2020 and the applicant’s name was maintained on the list, with the same reasoning as that set out in paragraph 15 above, together with a clarification concerning respect for his rights of defence and his right to effective judicial protection in the criminal proceedings on which the Council had relied.
31      By application lodged at the Court Registry on 14 May 2019, the applicant brought an action, registered as Case T‑303/19, for annulment of the March 2019 acts in so far as they concerned him.
32      By judgment of 11 July 2019, Yanukovych v Council (T‑244/16 and T‑285/17, EU:T:2019:502), the General Court annulled the March 2016 acts and the March 2017 acts in so far as they concerned the applicant.
33      By judgment of 24 September 2019, Yanukovych v Council (T‑300/18, not published, EU:T:2019:685), the General Court annulled the March 2018 acts in so far as they concerned the applicant.
34      Between November 2019 and January 2020, the Council and the applicant exchanged several letters concerning the possible extension of the restrictive measures at issue with respect to the applicant. In particular, the Council sent the applicant several letters from the Ukrainian Prosecutor General’s Office (‘the PGO’) concerning, inter alia, the criminal proceedings brought against him, on which the Council was basing the proposed extension.
35      On 5 March 2020, the Council adopted Decision (CFSP) 2020/373 amending Decision 2014/119 (OJ 2020 L 71, p. 10), and Implementing Regulation (EU) 2020/370 implementing Regulation No 208/2014 (OJ 2020 L 71, p. 1) (together, ‘the contested acts’).
36      By the contested acts, the application of the restrictive measures at issue was extended until 6 March 2021, and the applicant’s name was maintained on the list with the same statement of reasons as that set out in paragraph 15 above. Furthermore, the annex to Decision 2014/119 and Annex I to Regulation No 208/2014 were subdivided into two sections, the second of which was entitled ‘Rights of defence and right to effective judicial protection’. That section contains the following statement with respect to the applicant:
‘The criminal proceedings relating to the misappropriation of public funds or assets are still ongoing. The information on the Council’s file shows that the rights of defence and the right to effective judicial protection of Mr Yanukovych were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by letters of 26 September 2014 and 8 October 2014 concerning the sending of the written notification of suspicion, information that permission for a special pre-trial investigation in absentia was granted on 27 July 2015, a number of Court decisions relating to the seizure of property and by the fact that the decision of 27 September 2017 to suspend the criminal proceedings was open to appeal. The Council also has evidence on its file that a recent [application by the applicant’s legal representatives] was granted on 30 September 2019.’
37      By letter of 6 March 2020, the Council informed the applicant that the restrictive measures at issue were to be maintained against him. The Council replied to the observations set out by the applicant in his letters of 30 October and 18 December 2019 and 23 and 31 January 2020, and sent him copies of the contested acts. It also informed him of the deadline for submitting observations prior to a decision being taken regarding the possible maintenance of his name on the list.
Event subsequent to the bringing of the present action
38      By judgment of 9 June 2021, Yanukovych v Council (T‑303/19, not published, EU:T:2021:334), the General Court annulled the March 2019 acts in so far as they concerned the applicant.
Procedure and forms of order sought
39      By application lodged at the Court Registry on 14 May 2020, the applicant brought an action for annulment of the contested acts.
40      On 17 September 2020, the Council lodged the defence.
41      The reply was lodged at the Court Registry on 6 November 2020.
42      The rejoinder was lodged at the Court Registry on 22 December 2020. On the same day, the written part of the procedure was closed.
43      By document lodged at the Court Registry on 11 January 2021, the applicant requested that a hearing be held.
44      As a member of the Fifth Chamber was unable to sit, the President of the Court designated another Judge to complete the Chamber.
45      On 3 August 2021, the Council submitted a reasoned application, under Article 66 of the Rules of Procedure of the General Court, for the content of certain documents annexed to the application and the defence and certain passages in the defence not to be reproduced in the documents relating to the case to which the public has access.
46      By decision of the President of the Fifth Chamber of the General Court of 9 August 2021, the present case and Case T‑292/20, Yanukovych v Council, were joined for the purposes of the oral part of the procedure, pursuant to Article 68 of the Rules of Procedure, the parties having been heard in that respect.
47      Acting on a proposal from the Judge-Rapporteur, the General Court (Fifth Chamber) decided to open the oral part of the procedure.
48      The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 12 October 2021, which, at the request of the Council and the applicant having been heard, was conducted in part in camera.
49      At the hearing, the applicant presented observations on the report for the hearing, formal note of which was made in the minutes of the hearing.
50      The applicant claims that the Court should:
–        annul the contested acts, in so far as they concern him;
–        order the Council to pay the costs.
51      Following the clarifications provided at the hearing in reply to a question from the Court, the Council claims that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
52      In support of the action, the applicant relies on seven pleas in law, the first and second, raised together, alleging failure to comply with the criteria for inclusion on the list and a manifest error of assessment; the third, alleging failure to state reasons; the fourth, alleging breach of the rights of the defence and of the right to effective judicial protection; the fifth, alleging the lack of a legal basis; the sixth, alleging misuse of power; and the seventh, alleging breach of the right to property.
53      In the first place, it is appropriate to examine the first and second pleas together, in so far as it is alleged that the Council failed to verify that the Ukrainian authorities had respected the applicant’s rights of defence and his right to effective judicial protection and that, as a result, the Council made a manifest error of assessment when adopting the contested acts.
54      In the context of those pleas, first, the applicant recalls that review by the Courts of the European Union extends, in principle, to the assessment of the facts and circumstances invoked by the Council to justify maintaining his name on the list, and to the verification of the evidence and information on which it relied. He adds that, in the context of assessing whether the decision to maintain such measures is taken on a sufficiently solid factual basis, the Courts of the European Union must verify that the Council has checked 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 on which it intends to rely. In the reply, he claims that the judicial decisions relied on by the Council do not, as a matter of either fact or law, demonstrate that those rights were respected in accordance with the principles identified in the recent case-law of the Court of Justice and of the General Court.
55      In the second place, the applicant claims that the PGO’s statements on which the Council relied in order to adopt the contested acts did not afford it a sufficiently solid factual basis on which to include his name on the list, those documents being utterly inadequate, inconsistent, baseless or false. In accordance with settled case-law, in view of the climate of political persecution, the lack of independence of the judicial system and the serious inconsistencies in the allegations made against the applicant, the Council should have sought clarification from the Ukrainian authorities and carried out an independent verification of the alleged facts.
56      While stating that it is apparent from the Council’s letter of 6 March 2020 and the contested acts that, when those acts were adopted, the Council relied solely on criminal proceedings No [confidential] (1) (‘proceedings [confidential]’), which were initially part of criminal proceedings No [confidential] but were separated from them on 18 June 2015, and relate to [confidential], the applicant considers that the Council made manifest errors of assessment, first, by deciding that the pre-trial investigation concerning him constituted a sufficient factual basis to justify maintaining his name on the list and, secondly, by failing to ensure that his rights of defence and his right to effective judicial protection were respected. Accordingly, the facts and the decisions of the Ukrainian authorities relied on by the Council do not serve to demonstrate that those rights were respected and, therefore, to justify maintaining the restrictive measures at issue.
57      The applicant claims that no evidence has been found against him in the course of the pre-trial investigation since it was opened in March 2014, although the PGO obtained – unlawfully, since he was not included on an international list of wanted persons – permission to proceed in absentia since 27 July 2015. In addition, he notes that the pre-trial investigation in question has been suspended since 27 September 2017 due to the execution of wholly unjustified procedural actions within the framework of international cooperation.
58      According to the applicant, the two reasons put forward by the Council to demonstrate that the investigation carried out in the context of proceedings [confidential] is actually ongoing are wrong. First, he submits that the applications for international mutual legal assistance, relied on to justify the delay in the progress of those proceedings, were made well before the adoption of the contested acts and are irrelevant to the progress of the pre-trial investigation, since they are yet to be answered and their purpose is to identify his location, which is already known to the investigators. In addition, they are irrelevant because it is not claimed that the investigation in question involves any cross-border aspect, nor is any indication given as to whether they relate to the applicant himself or whether they are related to the pre-trial investigation in general. Secondly, the fact that there is an appeal pending against the decision to suspend the investigation of 27 September 2017 has no impact on the progress of the proceedings, since the outcome of such an appeal can only be negative or neutral for that progress. Moreover, the recent transfer of the investigation to the National Anti-Corruption Bureau did not produce any real change in the handling of the case.
59      Next, the applicant highlights the contradictory nature of the information provided by the PGO concerning the suspension of the pre-trial investigation. Initially, in the documents provided with the letter of 1 November 2019, the PGO stated that that suspension was based on the need to carry out procedural actions within the framework of international cooperation, in accordance with Article 280(1)(3) of the Code of Criminal Procedure of Ukraine (‘the Code of Criminal Procedure’), whereas in the suspension decision of 27 September 2017, which the PGO itself provided to the Council in response to its application to that effect, it was stated that that decision had been taken on the basis of Article 280(1)(2) of that code, which concerns the inclusion of a suspect on the list of wanted persons. Furthermore, the Council was aware of the fact that the PGO had confirmed that the requests for international mutual legal assistance were aimed exclusively at establishing the applicant’s whereabouts, although they were well known to the PGO, which, moreover, had permission to conduct the pre-trial investigation in the absence of the applicant, which rendered knowledge of his location even more irrelevant. The Council did not take account of those inconsistencies, flagged by the applicant on several occasions, and relied on those documents without carrying out further investigations. The real reason why the PGO suspended the investigation was to circumvent the procedural time limits laid down in Article 219 of the Code of Criminal Procedure and to create the misleading impression that proceedings [confidential] were still ongoing. Thus, the Council made a manifest error of assessment in relying on proceedings [confidential], without seeking to ascertain why those proceedings had not progressed even though several years had elapsed since the grant of the permission to proceed in absentia.
60      In the reply, the applicant disputes the Council’s argument based on the judgments of 5 October 2017, Mabrouk v Council (T‑175/15, EU:T:2017:694), and of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779).  In his opinion, those judgments are not relevant in the present case, since, first of all, they were not aimed at establishing the whereabouts of the person concerned, but concerned letters rogatory which involved questioning by the French authorities and such questioning had actually taken place. Next, the case which gave rise to those judgments had an international dimension justifying requests for mutual judicial assistance, which is not the case here. Lastly, those judgments predate the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031).
61      As regards the PGO’s letters of 26 September and 8 October 2014, both sent to his address in Kiev, the applicant considers that they do not meet the Council’s express request for confirmation of receipt of the notice of suspicion and that, in fact, that notice has not been duly notified. In that regard, he refers to a judicial decision, which can be applied to the present case, which established, in other criminal proceedings concerning him, that the notice of suspicion had not been properly notified to him, since international mutual legal assistance measures were used to do so, even though the PGO had been aware of the applicant’s location in Russia for several years.
62      As regards the judicial decisions relating to the seizure of property belonging to him, the applicant claims that, first, they are of a procedural nature and were delivered well before the adoption of the contested acts and, secondly, they were not examined by the Council, to which they were not available, notwithstanding the fact that he had claimed that they were unlawful, in that the notice of suspicion had not been duly notified to him. Thus, such decisions cannot be relied on to demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected prior to the adoption of the contested acts.
63      Lastly, as regards the PGO’s decision of 30 September 2019 granting the application made by the applicant’s legal representatives, the applicant considers that it concerns only a procedural request and does not represent any kind of substantive involvement in the proceedings. Moreover, the Council does not explain why that decision shows that the applicant’s rights had been protected. On the contrary, the fact that it was disclosed only two years after its adoption at the request of the applicant’s legal representatives shows rather that the PGO did not comply with Ukrainian law.
64      In the third place, the applicant complains that the Council failed to take account of certain arguments and certain evidence which had been put forward before the adoption of the contested acts. First of all, he complains that the Council failed to take into consideration the complete lack of independence of the PGO, which, moreover, attempted, inter alia, to bribe certain persons in order for them to give false testimonies against him or for amendments which expressly cover his situation to be made to the Code of Criminal Procedure.
65      Next, the applicant submits that the Ukrainian judicial system is neither independent nor impartial. In that regard, the applicant relies, in particular, on five updated reports by an independent expert, a 2017 report by the Group of States against Corruption (GRECO), the Council of Europe’s anti-corruption monitoring body, the situation in Ukraine, the report of the United Nations High Commissioner responsible for the Human Rights Monitoring Mission in Ukraine covering the period from 16 May to 15 August 2018 and the report on human rights in Ukraine of the United States Department of State of 11 March 2020. Furthermore, several infringements of his procedural and fundamental rights occurred in other proceedings concerning him, which undermines the reliability and credibility of all the accusations and information relating to the misappropriation of public funds, which were formulated and provided for purely political purposes. Similarly, the presumption of the applicant’s innocence is constantly violated by public and condemnatory statements made by Ukrainian State officials. Finally, the applicant invokes the immunity from prosecution from which he enjoys under both Ukrainian domestic law and customary international law, which means that he cannot be subject to criminal proceedings.
66      In the first place, the Council contends that it is entitled to rely on the information provided by the PGO in the exercise of its broad discretion in matters of common foreign and security policy (CFSP). Thus, first, it considers that the maintenance of the applicant’s listing on the basis of the information contained in the letters from the PGO meets the designation criteria and has a sufficiently solid factual basis that serves to establish that the applicant is subject to criminal proceedings in Ukraine. Secondly, it considers that it took the applicant’s observations into account and requested further clarification from the Ukrainian authorities, which were duly communicated to the applicant, who was able to express his views on their content. Thirdly, the Council notes that it is not the task of the Council to verify whether the investigations to which the applicant is subject are well founded. Finally, fourthly, as regards compliance with the substantive requirements deriving from the recent case-law of the Court of Justice and of the General Court, the Council states that, contrary to the applicant’s submissions, Ukrainian judicial decisions – which are moreover necessary for the proper conduct of the investigation – can be relied on as evidence of respect for the applicant’s rights of defence and his right to effective judicial protection.
67      Accordingly, the decision of 27 September 2017 shows that the Ukrainian authorities respected those rights, given that the applicant had the possibility of bringing an appeal against that decision before the investigating judge. The applicant’s claim that, in any event, the outcome of that appeal could only be negative or neutral for the progress of the case is not supported by any evidence and does not change the fact that the applicant enjoyed the right to effective judicial protection.
68      Moreover, it is apparent from the documents before the Court that the PGO granted, on 30 September 2019, a recent application made by the applicant’s legal representatives.
69      In addition, the Council contends that it can be inferred from the PGO’s statements that the notice of suspicion was notified to the applicant and that the letter by which the notice of suspicion was notified included a note on the clarification of the rights and obligations of the suspect.
70      The Council also relies on a certain number of judicial decisions taken in the course of the proceedings against the applicant, such as those relating to property seizures and to a preventive detention measure, which, under the Code of Criminal Procedure, may be taken only by an investigating judge or court during a trial against a suspect, or an accused or convicted person, when there are sufficient grounds to believe that that property is linked to the commission of a criminal offence and where there is a reasonable suspicion that that person committed such an offence.
71      The Council also submits that since it is entitled to rely on evidence provided by the PGO, it is a fortiori entitled to rely on judicial decisions delivered by Ukrainian courts, pursuant to a code of criminal procedure that ensures respect for the rights of the defence, as evidence of the proper conduct of the criminal proceedings on which it intends to rely, including compliance with the rights of the defence and the right to effective judicial protection, in accordance with the presumption of legality of judicial decisions, which cannot be rebutted by mere assertions by the applicant.
72      In the second place, as regards more specifically proceedings [confidential], the Council submits that the information from the PGO continues to provide an adequate basis for maintaining the applicant’s name on the list. In addition, it contends, on the basis of the case-law, that the alleged delays in the pre-trial investigation in the context of those proceedings were due, inter alia, on requests for international mutual legal assistance which had justified the suspension of the investigation.
73      In the third place, as regards other factors which it should have taken into account, the Council considers that, in the light of their very general nature, the applicant’s arguments concerning alleged violations of fundamental rights in other proceedings cannot call into question the charges relating to the misappropriation of public funds. Furthermore, it is not for the Council to assess the general claims concerning the independence of the PGO or of the Ukrainian judiciary. As regards the argument based on immunity from prosecution, the Council submits, in essence, that that immunity cannot be invoked and that it is for the Ukrainian authorities, including the PGO, to assess whether criminal proceedings may be initiated.
74      Lastly, in its rejoinder, the Council disputes the applicant’s interpretation of the case-law of the General Court concerning the legality of the March 2019 acts. According to the Council, that case-law cannot be interpreted as meaning that no account should be taken of the procedural decisions of the Ukrainian courts, in particular when verifying whether the Ukrainian authorities had complied with the applicant’s rights of defence and his right to effective judicial protection in the ongoing criminal investigation. The questions before the Court are, first, whether the Council’s conclusions regarding respect for those rights had a sufficiently solid factual basis, including the evidence which was, or could reasonably have been, available to it at the time of the adoption of the contested acts, and, secondly, whether the reasons given to justify those conclusions were relevant and sufficient.
75      Thus, ultimately, the Council contends that it has largely demonstrated why it did not make a manifest error of assessment in concluding, on the basis of the evidence obtained and through the proactive exercise of its duty of verification, that the applicant’s rights had been respected by the Ukrainian courts in proceedings [confidential]  which form the basis for its decision to maintain the applicant’s name on the list.
76      As a preliminary point, it must be noted that the second plea in law must be regarded as alleging an error of assessment, and not a manifest error of assessment. The Council had no discretion to determine whether it had sufficient evidence to assess whether the Ukrainian authorities had respected the applicant’s rights of defence and his right to effective judicial protection and whether that evidence was capable of giving rise to legitimate doubts concerning the observance of those rights (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 73 and the case-law cited).
77      Furthermore, it is apparent from well-established case-law that, in a review of restrictive measures, the Courts of the European Union must ensure the review, in principle the full review, of the lawfulness of all EU acts in the light of the fundamental rights forming an integral part of the EU legal order, which include, in particular, the right to effective judicial protection and the rights of the defence, as enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 64 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 74 and the case-law cited).
78      The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on a list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern the question whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 65 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 75 and the case-law cited).
79      The adoption and the maintenance of restrictive measures, such as those laid down in the March 2014 acts, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that State, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 66 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 76 and the case-law cited).
80      Thus, while, under a listing criterion such as that referred to in paragraph 12 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were respected by the authorities of the third State which adopted that decision (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 67 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 77 and the case-law cited).
81      The requirement for the Council to verify that the decisions of third States on which it intends to rely have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures has a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 68 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 78 and the case-law cited).
82      Moreover, although it is true that the fact that a third State is among the States which acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), entails review, by the European Court of Human Rights (‘the ECtHR’), of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 81 above (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 69 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 79 and the case-law cited).
83      According to the case-law, the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 70 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 80 and the case-law cited).
84      Ultimately, when it bases the adoption or the maintenance of restrictive measures such as those in the present case on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, secondly, refer, in the decision imposing restrictive measures, to the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 71 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 81 and the case-law cited).
85      In the present case, such obligations appear all the more inescapable since, as is clear from recital 2 of Decision 2014/119, that decision and the subsequent decisions were adopted as part of a policy aimed at consolidating and supporting the rule of law and respect for human rights in Ukraine (see paragraph 4 above), in accordance with the objectives set out in Article 21(2)(b) TEU. Consequently, the purpose of those decisions, which is, inter alia, to assist the Ukrainian authorities in finding any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation, would be irrelevant as regards those objectives if that finding were vitiated by a denial of justice or even by arbitrariness (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 95).
86      It is in the light of those case-law principles that it is necessary to establish whether the Council complied with its obligations in connection with the adoption of the contested acts in so far as those acts concern the applicant.
87      In that regard, it must be noted that the Council referred in the contested acts to the reasons why it had considered that the decision of the Ukrainian authorities to initiate and conduct criminal proceedings against the applicant for misappropriation of public funds or assets had been adopted in accordance with his rights of defence and his right to effective judicial protection (see paragraph 36 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been so in the present case.
88      Indeed, examination of the merits of the statement of reasons, which goes to the substantive legality of the contested acts and consists, in this case, in ascertaining whether the evidence relied on by the Council has been established and whether it is capable of demonstrating that the observance of those rights by the Ukrainian authorities has been verified, must be distinguished from the question of the statement of reasons, which concerns an essential procedural requirement and is merely a corollary of the Council’s obligation to ensure in advance that those rights are observed (see judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 84 and the case-law cited).
89      The restrictive measures previously adopted were extended and maintained with respect to the applicant by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, and in Article 3 of Regulation No 208/2014, as amended by Regulation 2015/138 (see paragraphs 12 and 13 above). That criterion covers persons who have been identified as responsible for the misappropriation of public funds belonging to the Ukrainian State, including persons subject to investigation by the Ukrainian authorities.
90      It is apparent from reasonson which the contested acts are based, referred to in paragraph 36 above, and from the letter of 6 March 2020 that the Council relied, in order to decide to maintain the applicant’s name on the list, on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences constituting misappropriation of public funds or assets, which was established, inter alia, by the PGO’s letters and by certain judicial decisions.
91      The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgments of 11 July 2019, Yanukovych v Council (T‑244/16 and T‑285/17, EU:T:2019:502); of 24 September 2019, Yanukovych v Council (T‑300/18, not published, EU:T:2019:685); and of 9 June 2021, Yanukovych v Council (T‑303/19, not published, EU:T:2021:334), on the decision of the Ukrainian authorities to initiate and conduct criminal investigation proceedings relating to an offence of misappropriation of public funds belonging to the Ukrainian State.
92      It must also be noted that when, by the contested acts, the Council amended the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, it added – as it had done when adopting the March 2019 acts – a new section entirely devoted to the rights of the defence and the right to effective judicial protection, which is divided into two parts.
93      The first part of that section contains a simple, general reference to the rights of the defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, reference is made first of all to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. It is then stated, first, that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local court in the presence of the complainant or his or her defence lawyer or legal representative. Secondly, it is stated, inter alia, that Article 309 of that code specifies the decisions of investigating judges that may be challenged on appeal. Lastly, it is made clear that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible pursuant to a ruling by the investigating judge or a court.
94      The second part of the section concerns respect for the rights of defence and the right to effective judicial protection of each person whose name appears on the list. As regards more specifically the applicant, it is stated that, according to the information in the Council’s file, his rights of defence and his right to effective judicial protection were respected in the course of the criminal proceedings on which the Council relied, as is apparent, inter alia, from ‘[the PGO] letters of 26 September 2014 and 8 October 2014 concerning the sending of the written notification of suspicion, information that permission for a special pre-trial investigation
in absentia was granted on 27 July 2015, a number of Court decisions relating to the seizure of property and by the fact that the decision to suspend the criminal proceedings of 27 September 2017 was open to appeal. The Council also has evidence on its file that a recent [application by the applicant’s legal representatives] was granted on 30 September 2019’ (see paragraph 36 above).
95      In the letter of 6 March 2020 sent to the applicant (see paragraph 37 above), the Council stated first of all that the information received from the PGO confirmed that the applicant remained subject to proceedings [confidential] in Ukraine for misappropriation of public funds or assets. Next, it stated that, in the light of the requests for international mutual legal assistance and the appeal which the applicant had lodged against the decision to suspend those proceedings, the latter were still ongoing. As regards the question of the competence of the Bureau of Investigation, disputed by the applicant, the Council stated that the pre-trial investigation in those proceedings had been transferred to the National Anti-Corruption Bureau of Ukraine, which now led that investigation. Finally, as regards observance of the applicant’s rights of defence and his right to effective judicial protection, the Council expressly referred only to proceedings [confidential], stating that it was apparent that those rights had been respected from (i) the PGO’s letters of 26 September and 8 October 2014 concerning the sending of the written notification of suspicion, (ii) the fact that on 27 July 2015 permission to open a special pre-trial investigation in absentia had been granted, (iii) the judicial decisions relating to the seizure of the applicant’s property, (iv) the fact that the decision of 27 September 2017 to suspend the criminal proceedings was open to challenge, and (v) the fact that an application made by the applicant’s legal representatives was granted on 30 September 2019_.
96      Thus, it is apparent from a combined reading of the reasons set out in the contested acts and in the letter of 6 March 2020 that proceedings [confidential] are the only proceedings in respect of which the Council demonstrates that it did actually verify whether the applicant’s rights of defence and his right to effective judicial protection had been respected, which was, moreover, confirmed by the Council itself in response to a question put by the Court at the hearing.
97      In that regard, it must be observed, at the outset, that the Council has failed to demonstrate to what extent the judicial decisions referred to in paragraph 94 above are evidence of observance of the applicant’s rights of defence and his right to effective judicial protection in the course of proceedings [confidential]. As stated in paragraphs 80 and 81 above, the Council was required, in this case, before deciding to maintain the restrictive measures at issue, to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct criminal investigation proceedings in relation to offences constituting the misappropriation of public funds or assets allegedly committed by the applicant had been taken in accordance with those rights of the applicant (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 94 and the case-law cited).
98      From that point of view, both the judicial decisions relating to the seizure of property and the permission to open a special pre-trial investigation in absentia referred to in paragraph 94 above cannot be identified as decisions to initiate and conduct the investigation procedure justifying the maintenance of the restrictive measures at issue, given that they are incidental decisions. That said, it may be accepted that, from a substantive point of view, since those decisions were delivered by a court, they were actually taken into account by the Council as the factual basis justifying the maintenance of the restrictive measures at issue (see, to that effect and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 95 and the case-law cited).
99      It must therefore be ascertained whether the Council was right to consider that such judicial decisions and the other information which it referred to in the second part of the section of the contested acts relating to the applicant’s rights of defence and his right to effective judicial protection (see paragraph 36 above), namely the PGO’s letters concerning the sending of the written notification of suspicion to the applicant, the fact that the PGO’s decision of 27 September 2017 to suspend proceedings [confidential] was open to appeal and the documents showing that the PGO had granted the applicant’s request to receive copies of the decisions to suspend and reopen those proceedings on 30 September 2019, demonstrated that the applicant’s rights of defence and his right to effective judicial protection had been respected.
100    As regards, first, the decisions concerning the seizure of the applicant’s property, which are not included in the case file, it must be stated that, according to the information provided by the PGO, they were made by the investigating judge of the Pechersk District Court (Kiev) between October 2014 and December 2015, that is to say, five years and five months and four years and three months before the adoption of the contested acts, respectively. It follows that those decisions, the legality of which had, moreover, been challenged by the applicant in a number of respects and in respect of which the Council itself acknowledged in the rejoinder and in response to a question from the Court at the hearing, that they had limited evidential value, are not sufficient to establish that proceedings [confidential], on which the Council relies in order to maintain, for the period from March 2020 to March 2021, the restrictive measures at issue vis-à-vis the applicant, were conducted in accordance with his rights of defence and his right to effective judicial protection (see, to that effect and by analogy, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 117 and the case-law cited).
101    Similar considerations may be formulated concerning the decision granting permission to open a special pre-trial investigation in absentia dated 27 July 2015, since that decision was also taken well before the adoption of the contested acts and the annual periodic review of the applicant’s situation which preceded their adoption.
102    Moreover, the General Court has already had the opportunity to rule on the decision granting permission to open a special pre-trial investigation in absentia dated 27 July 2015 and the decisions relating to the seizure of the applicant’s property, in the case which gave rise to the judgment of 24 September 2019, Yanukovych v Council (T‑300/18, not published, EU:T:2019:685, paragraphs 83 and 93 to 96), and, with regard solely to the decisions to seize property, in the cases which gave rise to the judgments of 11 July 2019, Yanukovych v Council (T‑244/16 and T‑285/17, EU:T:2019:502, paragraphs 71 and 90 to 93), and of 9 June 2021, Yanukovych v Council (T‑303/19, not published, EU:T:2021:334, paragraph 117), against which no appeal was brought before the Court of Justice, by ruling that those decisions were not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection were respected in the proceedings at issue. No argument put forward by the Council in the present case allows the General Court to reach conclusions different from those reached in those judgments, which concern the same parties and essentially raise the same legal issues.
103    In any event, it must also be noted that all the judicial decisions referred to above fall within the scope, inter alia, of the criminal proceedings which justified maintaining the applicant’s name on the list and are merely incidental to those proceedings since they are either precautionary or procedural in nature. Such decisions, which may serve at most to establish the existence of a sufficiently solid factual basis, in that, in accordance with the applicable listing criterion, the applicant was subject to criminal proceedings relating to offences of misappropriation of funds or assets belonging to the Ukrainian State, are not ontologically capable, alone, of demonstrating that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and his right to effective judicial protection, which it is for the Council to verify, in accordance with the case-law recalled in paragraph 81 above (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 94 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 118 and the case-law cited).
104    Next, as regards, first, the PGO’s decision of 27 September 2017 to suspend proceedings [confidential], it must be stated that it was also taken well before the renewal of the restrictive measures at issue. Furthermore, the fact that that decision was open to challenge cannot demonstrate on its own that the applicant’s rights of defence and his right to effective judicial protection were respected during those proceedings; nor can it demonstrate that the lack of progress in the pre-trial investigation and, more generally, the resulting delays in the procedure were attributable to the applicant (see, to that effect, judgment of 7 July 2021, Pshonka v Council, T‑268/20, not published, EU:T:2021:418, paragraph 99).
105    As regards, secondly, the PGO’s letters of 26 September and 8 October 2014 concerning the written notification of suspicion to the applicant, which is moreover disputed by him, it should be noted that, as has just been stated as regards the judicial decisions and the PGO’s decisions mentioned in paragraphs 100 to 104 above, those letters are not sufficient to establish that proceedings [confidential], on which the Council sought to rely in order to maintain, for the period from March 2020 to March 2021, the restrictive measures at issue taken against the applicant were conducted in observance of the applicant’s rights of defence and his right to effective judicial protection.
106    Finally, as regards the documents demonstrating that, on 30 September 2019, the applicant was granted a recent application made by his legal representatives, it should be noted, first, that it is a letter from the PGO addressed to the applicant’s Ukrainian legal representatives, which granted the applicant’s application for copies of the decisions suspending and reopening the pre-trial investigation in proceedings [confidential] and, secondly, that the PGO, in response to that application, merely appended to that letter the decision of 27 September 2017, which was the last one to be made by the PGO, even though it is apparent from the file that there were other decisions relating to the suspension and reopening of the proceedings in question which the PGO did not forward to the applicant despite his express application to that effect.
107    The Council has failed to state the reasons why the PGO’s letter of 30 September 2019 is capable of demonstrating that the Ukrainian judicial authorities respected the applicant’s rights of defence and his right to effective judicial protection. On the contrary, as the applicant rightly points out, without being contradicted by the Council, it is apparent from the file that the PGO did not respect the applicant’s rights of defence and his right to effective judicial protection since it did not automatically send the suspension decisions to his legal representatives, as required by Article 280(4) of the Code of Criminal Procedure. Irrespective of whether it is true, as the applicant claims, that he had repeatedly asked the PGO for those decisions, which is disputed by the Council, the fact remains that it is apparent from the documents before the Court that, despite that provision of the Code of Criminal Procedure, the applicant had to wait two years before having in his possession one of the decisions suspending the investigation; this cannot demonstrate that his rights were respected.
108    In addition, the Council does not put forward any document, contained in the file of the procedure resulting in the adoption of the contested acts, which shows that the Council examined the judicial decisions referred to and that it was able to conclude from that examination that the essence of the applicant’s procedural rights had been observed.
109    The mere reference by the Council to letters and statements of the Ukrainian authorities in which those authorities set out the manner in which the applicant’s fundamental rights had been respected and gave assurances in that regard cannot suffice for the view to be taken that the decision to maintain his name on the list has a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 81 above (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 44).
110    Following the examination of the judicial decisions and the other documents referred to by the Council in the contested acts, it must be concluded that, even taken as a whole, they are not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection had been respected during the criminal proceedings on which it relied.
111    In that regard, it must also be observed that the Council was under an obligation to carry out such verification irrespective of any evidence adduced by the applicant to show that, in the present case, the applicant’s rights of defence and his right to effective judicial protection had been infringed, the mere possibility of invoking an infringement of those rights before the Ukrainian courts pursuant to provisions of the Code of Criminal Procedure not being sufficient in itself to demonstrate that those rights were respected by the Ukrainian judicial authorities (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 121 and the case-law cited).
112    That conclusion cannot be called into question by the Council’s argument that the applicant has not put forward any evidence capable of demonstrating that his particular situation had been affected by the alleged problems of the Ukrainian judicial system. According to settled case-law, it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 45 and the case-law cited).
113    Moreover, nor does the Council explain how, in particular, the mere existence of the judicial decisions and documents referred to in paragraph 94 above permits the inference that respect for the applicant’s right to effective judicial protection was guaranteed. In that regard, it should be noted that, as the applicant had argued on numerous occasions in the letters sent to the Council, proceedings [confidential], which had been separated in June 2015 from proceedings No [confidential], initiated in 2014, and which were currently suspended, were still at the stage of the pre-trial investigation, itself recently transferred to the National Anti-Corruption Bureau, with the result that they had not been brought before a Ukrainian court for consideration of the merits, the Ukrainian court having been seised only of procedural matters, notwithstanding the fact that the Pechersk District Court had delivered a decision on 27 July 2015 granting the PGO permission to proceed in absentia (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 123).
114    The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess the observance of the right to effective judicial protection (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 98 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 124 and the case-law cited), provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.
115    In so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, such as those provided for by Article 6 thereof, their meaning and scope are, under Article 52(3) of the Charter, the same as those laid down by the ECHR.
116    In that regard, it should be noted that, in its interpretation of Article 6 ECHR, the ECtHR has stated that the purpose of the reasonable time principle is, inter alia, to protect persons charged with a criminal offence against excessive procedural delays and to avoid leaving them in a state of uncertainty about their fate for too long, and that that principle underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited). The ECtHR has also held that breach of that principle may be established, inter alia, where the investigation stage of criminal proceedings has been characterised by a certain number of periods of inactivity attributable to the authorities responsible for that investigation (see, to that effect, ECtHR, 6 January 2004, Rouille v. France, CE:ECHR:2004:0106JUD005026899, §§ 29 to 31; 27 September 2007, Reiner and Others v. Romania, CE:ECHR:2007:0927JUD000150502, §§ 57 to 59; and 12 January 2012, Borisenko v. Ukraine, CE:ECHR:2012:0112JUD002572502, §§ 58 to 62).
117    It is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, and that this has been on account, essentially, of the continuing conduct of the same preliminary investigations, as is the case in this instance, the Council is required to verify whether that person’s right to be tried within a reasonable time has been respected before the adoption of a decision to extend the application of those measures (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 101, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 127; see also, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 114 and the case-law cited).
118    In that regard, as has been noted in paragraph 85 above, it is important to bear in mind the precautionary nature of freezing the applicant’s assets and the purpose thereof, that is to say, as the Council noted in its pleadings and at the hearing, to assist the Ukrainian authorities with establishing any misappropriation of State funds that has taken place, on conclusion of the judicial proceedings, and to ensure that it remains possible for those authorities, ultimately, to recover the proceeds of that misappropriation. It therefore falls to the Council to ensure that that measure, justified precisely by its temporary nature, is not extended unnecessarily, to the detriment of the applicant’s rights and freedoms, on which it has a significant negative impact, merely because the criminal proceedings on which it is based and which are still at the pre-trial investigation stage have been left open, in essence, indefinitely (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 115 and the case-law cited).
119    It is also apparent from the case-law of the ECtHR concerning the interpretation of Article 6 ECHR, relied on by the applicant at the hearing, that delays caused by suspensions of the proceedings by the authorities, the decisions to join and separate the various criminal proceedings and the referrals of a case back to the authorities for further investigation in the context of the same proceedings may be regarded as evidence of a serious deficiency in the operation of the criminal justice system (see, to that effect, ECtHR, 23 June 2016, Krivoshey v. Ukraine, CE:ECHR:2016:0623JUD000743305, § 97 and the case-law cited). In the present case, in the light of the prolonged duration of the pre-trial investigation in question, it follows from what has been stated in paragraph 117 above that the Council was required, prior to the adoption of the contested acts, to satisfy itself that the duration of that investigation was not unreasonable. Moreover, from that point of view, the Council should have taken into account any evidence of possible deficiencies in the Ukrainian criminal justice system apparent from the case file, that is to say, in the present case, the fact that proceedings [confidential] had been separated from other proceedings, it had been suspended and reopened on several occasions and the pre-trial investigation conducted in those proceedings had recently been transferred to another investigating body (see, inter alia, paragraph 113 above), without entailing any progress in the matter, instead of merely relying on PGO’s explanations exclusively as a basis for its assessment.
120    The arguments set out by the PGO in its letters, unsupported by any evidence, which are endorsed to some extent by the Council, that the lack of any developments in proceedings [confidential] was justified, inter alia, by their suspension pending responses to a number of requests for international mutual legal assistance sent by the Ukrainian authorities to several third countries between 16 March 2016 and 23 May 2017 are not such as to call that conclusion into question. As the applicant observes, the pre-trial investigation in proceedings [confidential] on which the Council relied was suspended without ever having been reopened since 27 September 2017. Furthermore, it is apparent from the file that, first, it was suspended and reopened several times without any credible justification for doing so having been given by the PGO and, secondly, no investigatory or procedural action was carried out by the authorities responsible for the investigation, which moreover changed in November 2019 (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 128).
121    Although the Council carried out further verifications with the Ukrainian authorities in order to be informed of the reasons justifying the suspension of proceedings [confidential], it is apparent from the file that the explanations provided by the PGO, according to which the suspension was justified, inter alia, by the need to carry out procedural actions within the framework of international cooperation.
122    In that regard, it must be noted, as the applicant submits, that, first, the PGO stated, in response to the questions put by the Council, that the proceedings had been suspended since 27 September 2017, whereas, in reality, they had been suspended, in essence, at least since 14 December 2016. Secondly, in the table of information annexed to the letter of 1 November 2019, the PGO stated that the suspension was based on the fact there ‘exists a need to carry out procedural actions within the framework of international cooperation’ which is expressly covered by Article 280(1)(3) of the Code of Criminal Procedure, to which the PGO refers expressly. However, it is apparent from the suspension decision of 27 September 2017 that it was taken on the basis, inter alia, of Article 280(1)(2) of that code, which concerns the search for a suspect. It follows that the PGO provided the Council with contradictory information, which the Council could have easily detected. In those circumstances, the Council’s argument, which circumvented the applicant’s question raising such a contradiction in the administrative procedure which preceded the adoption of the contested measures, that there was no reason to doubt the information communicated by the PGO concerning the ground for the suspension, must be rejected.
123    Furthermore, the Council’s argument that suspensions in criminal proceedings over several years have been accepted by the General Court where they were due to procedural actions carried out within the framework of international cooperation, which it derives from the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779, paragraph 54), is not relevant.
124    First, it must be noted that the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), was delivered before the judgment of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031), which provided significant clarifications with respect to the Council’s obligation to verify, inter alia, whether the right of the person concerned to be tried within a reasonable time, which, as was pointed out in paragraph 114 above, is a component of the right to effective judicial protection, was respected in the criminal proceedings forming the basis for the adoption of restrictive measures. Secondly, in the case that gave rise to the judgment of 15 November 2018, Mabrouk v Council (T‑216/17, not published, EU:T:2018:779), the situation was different from that of the present case, in so far as the documents available to the Council demonstrated both that procedural activity was taking place in the judicial investigation of the case involving the applicant and, in particular, that procedural steps were taken by the authorities concerned in connection with international letters rogatory. However, that is not the case here, since the Council relied only on the PGO’s statements which refer in generic terms to procedural actions taken within the framework of international cooperation (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 130 and the case-law cited).
125    As regards the argument put forward by the Council in its rejoinder that, in accordance with the case-law of the ECtHR, the flight of an accused person has in itself certain repercussions on the scope of the guarantee provided by Article 6(1) ECHR as regards the duration of investigation, it must be observed that, first, assuming that the applicant really absconded, the fact remains that proceedings [confidential], on which the Council relies, relating to acts allegedly committed by the applicant between October 2010 and July 2013 were still at the stage of the pre-trial investigation six years after they were initiated and, secondly, since 27 July 2015, the PGO had permission to proceed in absentia so far as concerns the applicant so that his location (see paragraph 112 above) was irrelevant (see, to that effect, judgment of 6 June 2018, Arbuzov v Council, T‑258/17, EU:T:2018:331, paragraph 99).
126    Finally, the Council should at the very least have assessed all the evidence adduced by the PGO and the applicant and indicated the reasons for which, following an independent and thorough analysis of that evidence, it was able to conclude that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been complied with so far as concerns respect for his right to have his case heard within a reasonable time (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 131 and the case-law cited).
127    It cannot therefore be concluded, having regard to the documents in the file, that the information available to the Council at the time of the adoption of the contested acts enabled it to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct the criminal proceedings at issue had been adopted and implemented in accordance with the applicant’s right to effective judicial protection and, more specifically, his right to have his case heard within a reasonable time.
128    It must also be noted in that regard that the well-established case-law according to which, in the event of the adoption of a decision to freeze funds, such as the decision adopted in respect of the applicant in the contested acts, it is not for the Council or the Courts of the European Union to verify whether or not the investigation of the person concerned by those restrictive measures in Ukraine was well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of those restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 104 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 133 and the case-law cited).
129    Lastly, the Council’s argument that, in essence, it is not for the Council to call into question the decisions of the Ukrainian courts, which benefit from a kind of presumption of legality, must be rejected. While it is true, as the Council claims, that it is entitled to rely on such decisions as evidence of the existence of criminal proceedings relating to allegations against the applicant of misappropriation of public funds, the same cannot be said as regards evidence of the proper conduct of those criminal proceedings, including as regards respect for his rights of defence and his right to effective judicial protection. As noted in paragraph 81 above, in order to ensure that there is a sufficiently solid factual basis for maintaining the applicant’s name on the list, the Council must verify not only whether there are ongoing judicial proceedings concerning the applicant for conduct that could be characterised as misappropriation of public funds, but also whether, in the context of those proceedings, those rights of the applicant were respected (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 135 and the case-law cited).
130    That is particularly so where, as in this case, the Council was not in possession of certain decisions and certain information on which it intended to rely and, moreover, the applicant raised doubts as to whether his rights had been respected in the context of the adoption of the judicial decisions on which the Council intended to rely. In any event, it is not inconceivable that, having regard in particular to the observations submitted by the applicant, that institution might be obliged to seek clarification from the Ukrainian authorities regarding respect for those rights (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 136 and the case-law cited), which has not been the case here.
131    In the light of all of the foregoing considerations, it has not been established that the Council satisfied itself, prior to the adoption of the contested acts, that the Ukrainian judicial authorities complied with the applicant’s rights of defence and his right to effective judicial protection in the criminal proceedings on which the Council relied. It follows that, in deciding to maintain the applicant’s name on the list, the Council made an error of assessment.
132    In those circumstances, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law and arguments put forward by the applicant.
Costs
133    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Annuls Council Decision (CFSP) 2020/373 of 5 March 2020 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2020/370 of 5 March 2020 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Viktor Fedorovych Yanukovych was maintained on the list of persons, entities and bodies subject to those restrictive measures;
2.      Orders the Council of the European Union to pay the costs.
Spielmann
Mastroianni
Brkan
Delivered in open court in Luxembourg on 30 March 2022.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.
1      Confidential information omitted.