JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
9 June 2021 (*)
(Common foreign and security policy – Restrictive measures taken in view of the situation in Ukraine – Freezing of funds – List of persons, entities and bodies subject to 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‑302/19,
Oleksandr Viktorovych Yanukovych, residing in Saint-Petersburg (Russia), represented by M. Anderson, R. Kiddell, Solicitors, E. Dean and J. Marjason-Stamp, Barristers,
applicant,
v
Council of the European Union, represented by P. Mahnič, A. Vitro and T. Haas, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Council Decision (CFSP) 2019/354 of 4 March 2019 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2019 L 64, p. 7), and of Council Implementing Regulation (EU) 2019/352 of 4 March 2019 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2019 L 64, 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 (Rapporteur), U. Öberg and O. Spineanu-Matei, Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure and further to the hearing on 8 December 2020,
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 Oleksandr Viktorovych Yanukovych, is a businessman and the son of the former President of Ukraine, Mr Viktor Feodorovych Yanukovych.
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). On the same day, the Council 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 ‘son of former President [Yanukovych], businessman' and the following statement of reasons:
‘Person subject to investigation in Ukraine for involvement in crimes in connection with the embezzlement of Ukrainian State funds and their illegal transfer outside Ukraine.’
10      By application lodged at the General Court Registry on 14 May 2014, the applicant brought an action, registered as Case T‑348/14, 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 persons targeted by the freezing of funds, replacing the text of Article 1(1) of Decision 2014/119 with the following:
‘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 ‘son of former President, businessman’ 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‑348/14 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 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‑245/16, 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‑348/14, EU:T:2016:508), 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, concerning, first, Decision 2015/143 and Regulation 2015/138 and, secondly, the March 2015 acts.
21      On 23 November 2016, the applicant brought an appeal before the Court of Justice, registered as Case C‑599/16 P, against the judgment of 15 September 2016, Yanukovych v Council (T‑348/14, EU:T:2016:508).
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 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‑286/17, 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‑599/16 P, not published, EU:C:2017:785), 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‑348/14, EU:T:2016:508), 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 until 6 March 2019, and the applicant’s name was maintained on the list with the identifying information ‘son of former President, businessman’ and the following new statement of reasons:
‘Person subject to criminal proceedings by the Ukrainian authorities for the misappropriation of public funds or assets and for being an accomplice thereto.’
28      By application lodged at the Court Registry on 13 May 2018, the applicant brought an action, registered as Case T‑301/18, for annulment of the March 2018 acts in so far as they concerned him.
29      Between November 2018 and February 2019, 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’), including decisions of the investigating judge of the Pechersk District Court in Kiev (‘the Pechersk District Court’), concerning the criminal proceedings brought against him on which the Council was basing the proposed extension.
30      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 contested acts’).
31      By the contested 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 statement of reasons as that set out in paragraph 27 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 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 the decision of the investigating judge of 7 February 2018 refusing the [PGO’s] application for a special pre-trial investigation in absentia, by a number [of] Court decisions relating to the seizures of property and by the decision of the investigating judge of 27 June 2018 cancelling the resolution of the prosecution refusing to grant the motion of defence for closing the investigation.’
32      By letter of 5 March 2019, 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 29 November and 18 December 2018 and 28 January and 1 February 2019, 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 retention of his name on the list.
Events subsequent to the bringing of the present action
33      By judgment of 11 July 2019, Yanukovych v Council (T‑245/16 and T‑286/17, not published, EU:T:2019:505), the General Court annulled the March 2016 acts and the March 2017 acts, in so far as they concerned the applicant.
34      By judgment of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2019:676), the General Court annulled the March 2018 acts in so far as they concerned the applicant.
Procedure and forms of order sought
35      By application lodged at the Court Registry on 14 May 2019, the applicant brought an action for annulment of the contested acts.
36      On 2 September 2019, the Council lodged its defence.
37      On 30 September 2019, 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 certain passages in the defence not to be reproduced in the documents relating to the case to which the public has access.
38      Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the case was allocated to the Fifth Chamber, and a new Judge-Rapporteur was designated.
39      The reply was lodged at the Court Registry on 21 October 2019.
40      The rejoinder was lodged at the Court Registry on 6 December 2019. On the same day, the written part of the procedure was closed.
41      By document lodged at the Court Registry on 30 December 2019, the applicant requested that a hearing be held.
42      By decision of the President of the Fifth Chamber of the General Court of 11 August 2020, the present case and Case T‑303/19, 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.
43      Acting on a proposal from the Judge-Rapporteur, the General Court (Fifth Chamber) decided to open the oral part of the procedure.
44      The hearing originally scheduled for 6 October 2020 was adjourned pursuant to Article 107(2) of the Rules of Procedure.
45      As the Judge-Rapporteur was prevented from acting in the present case, the President of the Court designated a new Judge-Rapporteur sitting in the Fifth Chamber, pursuant to Article 27(1) of the Rules of Procedure. The President of the Chamber also designated another Judge to complete the Chamber, pursuant to Article 17(2) of those rules.
46      The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 8 December 2020, which, at the request of the Council and the applicant having been heard, was conducted in part in camera. Following the hearing, the oral part of the procedure was closed and the deliberations commenced.
47      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.
48      The Council contends that the Court should:
–        dismiss the action;
–        in the alternative, should the contested acts be annulled in so far as they concern the applicant, order that the effects of Decision 2019/354 be maintained until the partial annulment of Implementing Regulation 2019/352 takes effect;
–        order the applicant to pay the costs.
Law
49      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 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.
50      First of all, it is appropriate to examine the first and second pleas together, in so far as the applicant thereby alleges, in particular, 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.
51      In the context of those pleas, in the first place, 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.
52      In the second place, he claims that the letters from the PGO 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.
53      The applicant submits that the Council made manifest errors of assessment, first, in deciding that the pre-trial investigations concerning him constituted a sufficient factual basis for maintaining his name on the list and, secondly, by failing to satisfy itself that his rights of defence and his right to effective judicial protection were respected. Accordingly, he claims that the decisions of the Ukrainian authorities relied on by the Council do not serve to demonstrate that those rights were respected or, therefore, to justify maintaining the restrictive measures at issue.
54      More specifically, as regards criminal proceedings [confidential], (1) which initially formed part of proceedings [confidential], but were separated from them on 25 December 2015, and which relate to the alleged misappropriation [confidential], the applicant submits that, in addition to the fact that there have been no substantive developments in the investigation, there has never been a valid allegation against him, and the PGO has therefore been unable to produce evidence to prove his guilt. In particular, by the decision of the investigating judge of the Pechersk District Court of 7 February 2018 rejecting the PGO’s application for a pre-trial investigation in absentia against the applicant (‘the decision of 7 February 2018’), the investigating judge found that the PGO had failed to provide evidence, first, that the notice of suspicion had been notified to the applicant; secondly, that the applicant was evading prosecution; and, thirdly, that the applicant had been involved in the offences alleged against him. The applicant also argues that, between December 2017 and February 2019, in order to create the impression that the pre-trial investigation at issue was ongoing, that investigation was transferred a number of times to the National Anti-Corruption Bureau of Ukraine and sent back to the PGO, which finally reopened the investigation and immediately suspended it twice, in January and February 2019, albeit without having jurisdiction to do so.
55      As regards proceedings [confidential], relating to [confidential], the applicant argues that the facts alleged in those proceedings cannot be classified as misappropriation of public funds. First of all, he is not a public official and has never been entrusted with [confidential]; secondly, he does not have control of that company; thirdly, the PGO has not demonstrated that the offences alleged against him were committed; and, fourthly, the allegations made against him are flawed as a matter of Ukrainian law. Moreover, the applicant claims that the investigation in question was suspended for the 35th time on 14 March 2017 and has not been resumed since that date, that there has been no meaningful progress since the investigation commenced, and that a Ukrainian court overturned the PGO’s refusal to close that investigation on the basis of insufficient evidence.
56      In the third place, the applicant complains that the Council failed to take account of certain arguments and certain evidence 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, had attempted to bribe certain individuals to give false evidence against his father by promising to drop charges against them in return, or to secure amendments to the Ukrainian Code of Criminal Procedure (‘the Code of Criminal Procedure’) which specifically covered the situation of the applicant and of his father. In that regard, the applicant relies on five updated reports of an independent expert, Professor W.B., on a 2017 report of the Group of States against Corruption (GRECO), the Council of Europe’s anti-corruption monitoring body, on the situation in Ukraine, and on the report of the United Nations High Commissioner responsible for the Human Rights Monitoring Mission in Ukraine (‘the High Commissioner’) covering the period from 16 May to 15 August 2018. He goes on to claim that the Ukrainian judiciary is neither independent nor impartial, as evidenced by those reports and by a number of statements and documents. Similarly, he submits that the presumption of his innocence has been consistently violated by public, condemnatory statements made by Ukrainian State officials. Last, according to the applicant, several breaches of his father’s procedural and fundamental rights have been committed in the context of the cases brought against his father for treason and for the events that took place in Independence Square concerning him, which undermines the reliability and credibility of all the allegations and all the information relating to the misappropriation of public funds, which have been made and put forward for purely political purposes.
57      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 his rights of defence and his right to effective judicial protection were respected in accordance with the principles identified in the recent case-law of the Court of Justice and of the General Court.
58      First, according to the applicant, the Council did not give proper consideration to his claim that the PGO had failed to comply with the decision of the investigating judge of the Pechersk District Court of 27 June 2018 ordering the PGO to reconsider the applicant’s motion to close the investigation (‘the decision of 27 June 2018’), and thereby breached his right to effective judicial protection, in that the PGO had deprived him of the practical effect of the judgment obtained in his favour.
59      Secondly, the Council did not take into account the decision of 7 February 2018, in that the Ukrainian authorities took no action for several months, nor did it seek to establish whether the applicant’s rights of defence and his right to effective judicial protection had been respected.
60      Thirdly, as regards the court decisions relating to the seizures of his property, the applicant submits that those decisions were issued between October 2014 and December 2015, well before the adoption of the contested acts, and, moreover, that they were not examined by the Council, which did not have them in its possession, notwithstanding the fact that the applicant claimed that they were unlawful, in so far as the notice of suspicion had not been properly notified to him, so that he was unable to defend himself. Furthermore, the Council was mistaken in asserting in its letter of 5 March 2019 that those decisions had been delivered in an open-court session with the participation of defence lawyers. Thus, according to the applicant, those decisions cannot be relied on to demonstrate that his rights of defence and his right to effective judicial protection were respected prior to the adoption of the contested acts.
61      In addition, the applicant complains that the Council failed to have regard to the lack of progress in proceedings [confidential] and [confidential] (‘the criminal proceedings at issue’), which were repeatedly transferred between investigation bureaux and suspended a number of times, then resumed without any valid reason, so that pre-trial investigations which should have been concluded within 12 months had been ongoing for several years.
62      Last, the applicant takes issue with the Council’s attitude of disregarding the anomalies in the cases brought for treason and for the events that took place in Independence Square relating to his father, when, in his submission, the conduct of the Ukrainian authorities in those cases should have diminished the Council’s reliance on the information supplied by those authorities when deciding to maintain the applicant’s name on the list.
63      The Council contends, first of all, 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 submits that it took the applicant’s observations into account and sought further clarification, which was communicated to the applicant, who was able to make further observations. Thirdly, the Council points out that it is not the task of the Council to verify whether the investigations to which the applicant is subject are well founded. Fourthly and last, as regards compliance with the 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, procedural decisions of the Ukrainian courts can be relied on as evidence of respect for the applicant’s rights of defence and his right to effective judicial protection.
64      According to the Council, the decision of 27 June 2018 is an example of respect for the applicant’s rights of defence and his right to effective judicial protection, since he was able to use the judicial remedies available to him and was successful. As regards the decisions of the Pechersk District Court relating to seizures of the applicant’s property, the Council observes that the applicant has never contested them, nor has he referred to any possible irregularities concerning their adoption.
65      The Council submits that, since it is entitled to rely on evidence provided by the PGO as to the existence of criminal proceedings for misappropriation of public funds, it is also entitled to rely on judicial decisions as evidence of the correct conduct of those criminal proceedings, including respect for the rights of the defence and the right to effective judicial protection.
66      Next, as regards the applicant’s claims concerning the lack of detail and consistency in the attestations [confidential] in proceedings [confidential], the Council submits that it is apparent from its letters, first, that a notice of suspicion was in fact issued on 22 December 2014; secondly, that the applicant is suspected of having [confidential]; thirdly, that the allegedly misappropriated funds amount to over [confidential]; and, fourthly, that the proceedings relate to offences under the Ukrainian Criminal Code.
67      According to the Council, the information [confidential] about the applicant’s alleged conduct is sufficiently detailed and precise and concerns a misappropriation of public funds. In addition, the Council considers that it has fulfilled its verification obligation, given that it is apparent from that information that the pre-trial investigation was suspended on 13 March 2017, in accordance with the provisions of the Code of Criminal Procedure, and that it sought clarification regarding the consequences of the decision of 27 June 2017. [confidential].
68      Furthermore, as regards proceedings [confidential], the Council disputes the applicant’s claims concerning the lack of progress in the pre-trial investigation in that case. In that regard, it mentions, in particular, the decision of 7 February 2018 and states that, despite that decision, it could continue to rely on those proceedings. In addition, the Council contends that, contrary to the applicant’s submissions, it took account of the numerous transfers of the case between various investigation bureaux and that it sought further clarification in that regard [confidential]. Thus, [confidential], the Council maintains that it was entitled to rely on the information provided by the PGO.
69      In addition, as regards other factors which it should supposedly have taken into account, the Council submits that, in view of their very general nature, the applicant’s submissions regarding alleged breaches of fundamental rights in the cases brought against his father for treason and for the events that took place in Independence Square cannot call in question the charges in relation to the misappropriation of public funds. Furthermore, it is not for the Council to assess the general claims regarding the independence of the PGO or of the Ukrainian judiciary.
70      Last, in its rejoinder, the Council disputes the applicant’s interpretation of the case-law of the General Court concerning the legality of the March 2018 acts. According to the Council, that case-law cannot be interpreted as meaning that no account should be taken of procedural decisions of the Ukrainian courts, in particular when verifying whether the Ukrainian authorities had respected the applicant’s rights of defence and his right to effective judicial protection in the context of the ongoing criminal investigation. The two questions before the Court are, first, whether the Council’s conclusion regarding respect for those rights had a sufficiently solid factual basis, including the evidence which it had or could reasonably have had at the time of the adoption of the contested acts, and, secondly, whether the reasons given for that conclusion were relevant and sufficient.
71      Thus, the Council contends, in essence, that it has amply 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 before the Ukrainian courts in the criminal proceedings at issue, which constitute the basis for its decision to maintain the applicant’s name on the list.
72      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 and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 79 and the case-law cited).
73      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, to that effect, judgments of 11 July 2019, Yanukovych v Council, T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraph 73 and the case-law cited, and of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 50 and the case-law cited).
74      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 11 July 2019, Yanukovych v Council, T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraph 74 and the case-law cited, and of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 51 and the case-law cited).
75      The adoption and the maintenance of restrictive measures, such as those laid down in the March 2014 acts, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that State, which was competent to make it, to initiate and conduct criminal-investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see judgments of 11 July 2019, Yanukovych v Council, T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraph 75 and the case-law cited, and of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 52 and the case-law cited).
76      Thus, while, under a listing criterion such as that referred to in paragraph 12 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were respected by the authorities of the third State which adopted that decision (see judgments of 11 July 2019, Yanukovych v Council, T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraph 76 and the case-law cited, and of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 53 and the case-law cited).
77      The requirement for the Council to verify that the decisions of third States on which it intends to rely have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures has a sufficiently solid factual basis before having itself verified that the rights of the defence and the right to effective judicial protection were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgments of 11 July 2019, Yanukovych v Council, T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraph 77 and the case-law cited, and of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 54 and the case-law cited).
78      Moreover, although it is true that the fact that a third State is among the States which acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), entails review, by the European Court of Human Rights (‘the ECtHR’), of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 77 above (see judgments of 11 July 2019, Yanukovych v Council, T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraph 78 and the case-law cited, and of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 55 and the case-law cited).
79      According to the case-law, the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely to have been adopted in accordance with the rights of the defence and the right to effective judicial protection. Thus it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see judgments of 11 July 2019, Yanukovych v Council, T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraph 79 and the case-law cited, and of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 56 and the case-law cited).
80      Ultimately, when it bases the adoption or the maintenance of restrictive measures such as those in the present case on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, secondly, refer, in the decision imposing restrictive measures, to the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights (judgment of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 57; see also judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 66 and the case-law cited).
81      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.
82      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 the criminal proceedings at issue, against the applicant, for misappropriation of public funds or assets and for being an accomplice thereto had been adopted in accordance with his rights of defence and his right to effective judicial protection (see paragraph 31 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been the case.
83      Indeed, examination of the merits of the statement of reasons, which goes to the substantive legality of the contested acts and consists, in this case, in ascertaining whether the evidence relied on by the Council has been established and whether it is capable of demonstrating that the observance of those rights by the Ukrainian authorities has been verified, must be distinguished from the question of the statement of reasons, which concerns an essential procedural requirement and is merely a corollary of the Council’s obligation to ensure in advance that those rights are observed (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 69 and the case-law cited).
84      The restrictive measures previously adopted were extended and maintained with respect to the applicant by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, and in Article 3 of Regulation No 208/2014, as amended by Regulation 2015/138 (see paragraphs 12 and 13 above). That criterion covers persons who have been identified as responsible for the misappropriation of Ukrainian State funds, including persons subject to investigation by the Ukrainian authorities.
85      It should be noted that, in deciding to maintain the applicant’s name on the list, the Council relied on the fact that he was subject to criminal proceedings initiated by the Ukrainian authorities for offences constituting misappropriation of public funds or assets, which were evidenced by the PGO’s letters of which the applicant had received copies (see paragraph 29 above).
86      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), and of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2019:676), on the decision of the Ukrainian authorities to initiate and conduct criminal-investigation proceedings relating to an offence of misappropriation of Ukrainian State funds or of being an accomplice thereto.
87      It must also be noted that when, by the contested acts, the Council amended the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, it added a new section, dedicated entirely to the rights of the defence and the right to effective judicial protection, which is subdivided into two parts.
88      The first part of that section contains a simple, general reference to the rights of the defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, reference is made first of all to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. It is then stated, first, that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local court in the presence of the complainant or his or her defence lawyer or legal representative. Secondly, it is stated, inter alia, that Article 309 of that code specifies the decisions of investigating judges that may be challenged on appeal. Last, it is made clear that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible pursuant to a ruling by the investigating judge or a court.
89      The second part of that section concerns respect for the rights of defence and the right to effective judicial protection of each person listed. As regards the applicant specifically, it is stated that, according to the information on the Council’s file, his rights of defence and his right to effective judicial protection were respected in the criminal proceedings at issue, on which the Council relied, as is demonstrated in particular by ‘the decision … of 7 February 2018 refusing the [PGO’s] application for a special pre-trial investigation in absentia, by a number [of] Court decisions relating to the seizures of property and by the decision … of 27 June 2018 cancelling the resolution of the prosecution refusing to grant the motion of defence for closing the investigation’ (see paragraph 31 above).
90      In the letter of 5 March 2019 sent to the applicant (see paragraph 32 above), first of all, the Council stated that the letters from the PGO confirmed that the applicant remained subject to criminal proceedings in Ukraine for misappropriation of public funds or assets. Next, it stated, first, [confidential] information concerning the alleged lack of progress in the investigation in proceedings [confidential] and that, [confidential], a new motion to proceed in absentia, following that rejected by the decision of 7 February 2018, was being considered. Secondly, as regards proceedings [confidential], the Council stated that, following the decision of 27 June 2018, the motion of the defence for closure of the investigation would be considered again. It also stated that, after a suspension of a pre-trial investigation, investigative actions were not allowed, except for those aimed at establishing the whereabouts of the suspect. However, ‘receipt’ of procedural decisions such as those mentioned was always possible when a proceeding was suspended. Furthermore, the Council noted that the pre-trial investigation in proceedings [confidential] had been returned to the investigators of the Department for Special Investigations of the PGO on 14 December 2018 and that, pending the decision of the investigating judge on the applicant’s father’s appeal against the resolution on suspension of those proceedings also on grounds of lack of jurisdiction, it was entitled to rely on the information and evidence provided by the PGO. Last, as regards the applicant’s rights of defence and right to effective judicial protection, the Council stated that it was apparent from the decision of 7 February 2018, the court decisions relating to the seizures of the applicant’s property and the decision of 27 June 2018, which had been delivered in an open-court session with the participation of defence lawyers, that those rights had been respected.
91      It is apparent from the grounds set out in the contested acts, read in conjunction with that letter of 5 March 2019, that the criminal proceedings at issue are those in respect of which the Council states that it did in fact verify that the applicant’s rights of defence and his right to effective judicial protection were respected.
92      In that regard, it must be observed at the outset that the Council has failed to show to what extent all the decisions to which it refers demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected in the criminal proceedings at issue. As stated in paragraphs 76 and 77 above, the Council was required, in this case, before deciding to maintain the restrictive measures at issue, to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct criminal-investigation proceedings in relation to offences constituting the misappropriation of public funds or assets allegedly committed by the applicant had been taken in accordance with those rights of the applicant (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 78).
93      From that perspective, the judicial decisions mentioned in paragraph 89 above cannot be identified as being decisions to initiate and conduct an investigation procedure justifying the maintenance of the restrictive measures. That said, it may be accepted that, from a substantive point of view, since those decisions – at least those of 7 February and 27 June 2018, which are relevant from a temporal perspective – were delivered by a court, they were actually taken into account by the Council as the factual basis justifying the maintenance of the restrictive measures at issue (see, to that effect and by analogy, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 79).
94      It is therefore necessary to ascertain whether the Council was right to conclude that those two decisions and the decisions relating to the seizures of the applicant’s property, which, according to the information provided by the PGO, relate only to proceedings [confidential], demonstrated that the applicant’s rights of defence and right to effective judicial protection were observed.
95      As regards, in the first place, the decision of 7 February 2018,  which relates to proceedings [confidential], it must be observed, first of all, that the Court has previously had the opportunity to rule on that decision in the case giving rise to the judgment of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2019:676, paragraphs 82 and 92 to 95), which has not been disputed by the Council. In that judgment, it was held that that decision was not capable of demonstrating that the applicant’s rights of defence and his right to effective judicial protection had been respected in those proceedings.
96      Furthermore, while it is true, as the Council notes in its letter of 5 March 2019, that that decision was adopted following a hearing in open court in which the defence lawyers participated and that the investigating judge refused the application for a special pre-trial investigation in absentia submitted by the PGO on 25 December 2015, it is not apparent from the documents in the file in the present proceedings that the Council took into consideration the information regarding those proceedings that was communicated to it by the applicant in his letters of 29 November and 18 December 2018 and 28 January and 1 February 2019.
97      The applicant has repeatedly drawn the Council’s attention to the reasons for the refusal of the PGO’s application, which related, in particular, to the fact that the notice of suspicion had not been properly notified to him, which meant that he did not have the status of suspect, and, more generally, to the fact that the evidence adduced by the PGO to show that he was evading prosecution and that he was suspected of having committed the alleged offence was not sufficient. Furthermore, the applicant stated in his letter of 29 November 2018 that, in paragraph 63 of the report concerning the period from 16 May to 15 August 2018, the High Commissioner had stated that in absentia proceedings in Ukraine were not in line with international human rights standards. Whereas those proceedings should have been preceded by proper notification of the accused and should have provided the opportunity for a full retrial after the person concerned had been located by the authorities, none of those requirements was provided for in the Code of Criminal Procedure, which, according to the High Commissioner, negatively impacted the rights of the defence.
98      However, first, it is not apparent from the documents in the file that the Council did ascertain the extent to which the decision of 7 February 2018 was consistent with the articles of the Code of Criminal Procedure expressly mentioned in the first part of the section on the rights of the defence and the right to effective judicial protection in the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, as amended by the contested acts (see paragraph 88 above), which establish, inter alia, the right of a suspect to ‘challenge decisions, actions and omissions by the investigator, the public prosecutor and the investigating judge’ (see, to that effect and by analogy, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 82).
99      Secondly, it is not possible to determine from the documents in the file on what basis the Council found that a decision such as the decision of 7 February 2018 could demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected in proceedings [confidential].
100    Admittedly, it is true, as the Council points out, that the decision does not authorise the opening of a special pre-trial investigation in absentia but refuses it and therefore, as such, is a decision that is favourable to the applicant. However, that factor alone is not sufficient to establish that the Council verified compliance by the Ukrainian authorities with the rights of defence and the right to judicial protection of the applicant (see, to that effect, judgment of 11 July 2019, Klyuyev v Council, T‑305/18, not published, EU:T:2019:506, paragraphs 83 to 85).
101    As noted in paragraphs 76 and 77 above, the Council must satisfy itself that those rights were complied with at the time of the adoption of the decision by the third State in question on which it intends to rely, namely, in the present case, the decision of a Ukrainian authority, having jurisdiction in that regard, to initiate and conduct criminal-investigation proceedings concerning the applicant. Consequently, the Council could not disregard the reasons that led to the refusal of the application of the PGO, which is the investigating authority, since, following the assessment made by the investigating judge of Pechersk District Court, that application proved to be wholly unfounded.
102    It is apparent from the decision of 7 February 2018 that the investigating judge considered that the conditions laid down in Article 297‑2 of the Code of Criminal Procedure for granting authorisation to investigate in absentia were not satisfied in the present case. First, he found that the notice of suspicion had not been duly served on the applicant and that, consequently, the applicant could not have the status of suspect. Secondly, he noted that the PGO had not proved that the applicant was evading prosecution, since the PGO knew where he was in Russia, and that his name was included on an inter-State or international wanted-persons list. Thirdly, he considered that the PGO did not have jurisdiction to make such an application because the Ukrainian National Anti-Corruption Bureau was the competent investigating agency and, fourthly, that the PGO had not provided sufficient evidence for the applicant to be suspected of having committed the alleged offence.
103    Moreover, since the PGO’s application had been submitted on 25 December 2015, it was necessarily based on evidence obtained up to that date, thus more than three years before the contested acts were adopted.
104    In those circumstances, the Council ought to have queried whether all the evidence at its disposal concerning the pre-trial investigation in proceedings [confidential] could still constitute a sufficiently solid factual basis, in accordance with the case-law referred to in paragraph 74 above.
105    Moreover, the Council made an error of assessment in considering that it was not required to take into account the evidence produced by the applicant and the arguments developed by him or to make further enquiries of the Ukrainian authorities, despite the fact that that evidence and those arguments were such as to give rise to legitimate doubts regarding the reliability of the information provided by the PGO (see, to that effect and by analogy, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraphs 253 to 257).
106    In the second place, as regards the decision of 27 June 2018, concerning proceedings [confidential], it should be noted that the Council only had a short version of the decision, without a statement of reasons, by which the investigating judge of the Pechersk District Court annulled the PGO’s decision of 11 October 2017 refusing to grant the motion to close those proceedings on the ground of insufficient evidence.
107    Admittedly, it is true, as the Council contends, that such a decision could be relied on as an example of respect for the applicant’s rights of defence and his right to effective judicial protection. However, the fact remains that, as stated in paragraph 101 above, the Council should have satisfied itself that the applicant’s right to effective judicial protection was observed by the PGO itself. That verification should have covered the PGO’s decision of 11 October 2017 rejecting the applicant’s motion to close the investigation, as well as its failure to take any action at all following the decision of 27 June 2018 requiring it to reconsider that motion, without, moreover, providing the Council with any explanation as to the reasons for that inaction. In so doing, the PGO rendered that decision devoid of any practical effect and thereby deprived the applicant of his right to effective judicial protection.
108    As regards, in the third and last place, the court decisions concerning the seizures of the applicant’s property, which do not appear in the case file and which were never examined by the Council, as the Council conceded at the hearing, it should be noted that [confidential], they were delivered by the Pechersk District Court in proceedings [confidential], between July 2014 and April 2015, that is to say, well before the contested acts were adopted.
109    It follows that those decisions, the legality of which had, moreover, been challenged by the applicant in a number of respects and in respect of which the Council itself acknowledged at the hearing that they had limited evidential value, are not sufficient to establish that the relevant decision of the Ukrainian judicial authorities, on which the Council intended to rely in order to maintain, for the period from March 2019 to March 2020, the restrictive measures at issue vis-à-vis the applicant, was adopted in accordance with his rights of defence and his right to effective judicial protection (see, to that effect and by analogy, judgment of 23 September 2020, Arbuzov v Council, T‑289/19, not published, EU:T:2020:445, paragraph 84). Furthermore, as has been noted in paragraph 95 above, the Court has previously had the opportunity to rule on those decisions in the cases which gave rise to the judgments of 11 July 2019, Yanukovych v Council (T‑244/16 and T‑285/17, EU:T:2019:502, paragraphs 71 and 90 to 93), and of 24 September 2019, Yanukovych v Council (T‑301/18, not published, EU:T:2019:676, paragraphs 82 and 92 to 95), against which no appeal was brought by the Council, and held that they too were not capable of demonstrating that those rights of the applicant had been respected in the criminal proceedings concerned.
110    In any event, it must also be noted that all the Ukrainian judicial decisions referred to above fall within the scope of the criminal proceedings at issue, which justified the inclusion and maintenance of the applicant’s name on the list, and are merely incidental in relation to those proceedings since they are either restrictive or procedural in nature. Such decisions, which may serve at most to establish the existence of a sufficiently solid factual basis, in that, in accordance with the applicable listing criterion, the applicant was subject to criminal proceedings relating to offences of misappropriation of Ukrainian State funds or assets, are not ontologically capable, alone, of demonstrating that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and his right to effective judicial protection, which it is for the Council to verify, in accordance with the case-law recalled in paragraph 77 above (see, to that effect and by analogy, judgments of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 93, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraphs 91 and 92).
111    Moreover, the Council does not refer to any document in the file of the procedure which resulted in the adoption of the contested acts that would show that it examined the court decisions on which it relies and was able to conclude from them that the essence of the applicant’s procedural rights had been complied with. On the other hand, as has been pointed out in paragraphs 106 and 108 above, it is apparent from the case file that the Council was not in possession of the decisions relating to the seizures of the applicant’s property and only had a short version of the decision of 27 June 2018 that did not include a statement of reasons.
112    The mere reference by the Council to letters and statements of the Ukrainian authorities in which those authorities set out the manner in which the applicant’s fundamental rights had been respected and gave assurances in that regard cannot suffice for the view to be taken that the decision to maintain his name on the list has a sufficiently solid factual basis, within the meaning of the case-law cited in paragraph 77 above (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 44).
113    In that regard, it must also be observed that the Council was under an obligation to carry out such verification irrespective of any evidence adduced by the applicant to show that, in the present case, the applicant’s rights of defence and his right to effective judicial protection had been infringed, the mere possibility of invoking an infringement of those rights before the Ukrainian courts pursuant to provisions of the Code of Criminal Procedure not being sufficient in itself to demonstrate that those rights were respected by the Ukrainian judicial authorities (see, to that effect, judgment of 11 July 2019, Klyuyev v Council, T‑305/18, not published, EU:T:2019:506, paragraph 72).
114    That conclusion cannot be called in question by the Council’s argument that the applicant has not put forward any evidence capable of demonstrating that his particular situation had been affected by the alleged problems of the Ukrainian judicial system. According to settled case-law, it is the task of the competent EU authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (see, to that effect, judgment of 3 December 2020, Saleh Thabet and Others v Council, C‑72/19 P and C‑145/19 P, not published, EU:C:2020:992, paragraph 45 and the case-law cited).
115    Nor, moreover, does the Council explain how, in particular, the mere existence of the decisions referred to in paragraph 89 above would permit the inference that respect for the applicant’s rights of defence and his right to effective judicial protection was guaranteed. In that regard, it must be noted that, as the applicant had argued on numerous occasions in the letters sent to the Council, the criminal proceedings at issue – which were originally initiated in 2014 and both sets of which were currently suspended after having been transferred several times between various investigation bureaux – were still at the pre-trial investigation stage, with the result that they had not been brought before a Ukrainian court for consideration of the merits, the Ukrainian court having been seised only of procedural matters.
116    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, to that effect, judgments of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 96 and the case-law cited, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 96 and the case-law cited), provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.
117    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.
118    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).
119    It is also clear from the case-law that, where a person has been the subject of restrictive measures for several years on account, essentially, of the continuing conduct of the same preliminary investigation by the PGO, the Council is required to verify whether that person’s fundamental rights, and therefore his or her right to be tried within a reasonable time, have been respected by the Ukrainian authorities before it decides whether or not to extend those measures again (see, to that effect, judgments of 24 September 2019, Yanukovych v Council, T‑300/18, not published, EU:T:2019:685, paragraph 99, and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 99; see also, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 114 and the case-law cited). Contrary to the Council’s contention, decisions such as those relied on in the contested acts cannot demonstrate real progress in the criminal proceedings at issue.
120    In the present case, as the applicant has pointed out in his letters and written statements, proceedings [confidential], which were resumed and immediately suspended, most recently before the adoption of the contested acts, on 27 February 2019, were transferred several times between the PGO and the Ukrainian National Anti-Corruption Bureau in the period between 16 February and 14 December 2018, without any explanation by the Ukrainian authorities of the reasons for those transfers or proof of real progress in the pre-trial investigation, given that the decision of 7 February 2018 was adopted following an application from the prosecutor on 25 December 2015. Furthermore, in its letter of 29 December 2018, the [confidential] stated that it was considering lodging a new motion to carry out a pre-trial investigation in absentia of the applicant, still in the context of proceedings [confidential], without however sending information in that respect to the Council before the contested acts were adopted.
121    As regards the pre-trial investigation in the context of proceedings [confidential], it is sufficient to note that, since those proceedings were initiated on 8 May 2014, they have been suspended 35 times, including only four days after they were first initiated, and have not been resumed since 14 March 2017. Moreover, it must be noted that, as the applicant points out without being contradicted in that respect by the Council, in its letters of 2 November and 29 December 2018, the PGO merely recalled the information which it had previously provided to the Council in its letters of 10 October 2014, 4 September 2015, 30 November 2015, 25 July 2016, 16 November 2016, 20 October 2017 and 5 January 2018, which demonstrates the lack of any progress in that investigation.
122    Although the Council carried out additional checks with the Ukrainian authorities in order to be informed of the reasons for the suspensions referred to above, the fact remains that it was content with the explanations given by the PGO, according to which those suspensions were linked to the search for the applicant, even though, in the decision of 7 February 2018, the investigating judge of the Pechersk District Court had stated, inter alia, that the documents provided in support of the prosecutor’s application mentioned in paragraph 120 above did not confirm that the applicant was in hiding in order to avoid criminal liability.
123    The Council should at the very least have indicated the reasons for which, notwithstanding the applicant’s arguments as set out in paragraphs 120 and 121 above, it was able to conclude that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been complied with so far as concerns respect for his right to have his case heard within a reasonable time (see, to that effect and by analogy, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 100). That is all the more so in the light of the total lack of information from the PGO, first, as regards the submission of a new motion for permission to proceed in absentia in proceedings [confidential] and, secondly, in relation to the reconsideration of the applicant’s motion for proceedings [confidential] to be closed following the decision of 27 June 2018.
124    It cannot therefore be concluded, having regard to the documents in the file, that the information available to the Council at the time of the adoption of the contested acts enabled it to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct the criminal proceedings at issue had been taken and implemented in accordance with the applicant’s right to effective judicial protection and his right to have his case heard within a reasonable time.
125    It must also be noted in that regard that the well-established case-law according to which, in the event of the adoption of a decision to freeze funds, such as the decision adopted in respect of the applicant in the contested acts, it is not for the Council or the Courts of the European Union to verify whether or not the investigation of the person concerned by those restrictive measures in Ukraine was well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of those restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 11 July 2019, Yanukovych v Council, T‑245/16 and T‑286/17, not published, EU:T:2019:505, paragraph 94 and the case-law cited; of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 101 and the case-law cited; and of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 102 and the case-law cited).
126    Last, the Court must reject the Council’s argument, reiterated at the hearing, that, in essence, it is not for the Council to call in question the decisions of the Ukrainian courts, which enjoy a kind of presumption of legality, not least by virtue of the cooperation and assistance agreements that exist between the European Union and Ukraine in the field of justice.
127    While it is true that the Council is entitled to rely on judicial decisions as evidence of the existence of criminal proceedings relating to allegations against the applicant of misappropriation of public funds, the same cannot be said as regards evidence of the proper conduct of those criminal proceedings, including as regards respect for his rights of defence and his right to effective judicial protection. As noted in paragraph 77 above, in order to ensure that there is a sufficiently solid factual basis for maintaining the applicant’s name on the list, the Council must verify not only whether there are ongoing judicial proceedings concerning the applicant for conduct that could be characterised as misappropriation of public funds, but also whether, in the context of those proceedings, those rights of the applicant were respected (see, to that effect, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 153 and the case-law cited).
128    That is particularly so where, as in this case, the Council was not in possession of all the decisions relied on or of the full version of those decisions and, moreover, the applicant raised doubts as to whether his rights were 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 person concerned, that institution should be obliged to seek clarification from the authorities of the third State involved regarding respect for those rights in that person’s case (see, to that effect, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 240 and the case-law cited), which has not been the case here.
129    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 at issue 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.
130    In those circumstances, the contested acts must be annulled, in so far as they relate to the applicant, without it being necessary to examine the other pleas in law and the other arguments put forward by the applicant.
131    Having regard to the claim put forward by the Council in the alternative (see the second indent of paragraph 48 above), seeking, in essence, to have the effects of Decision 2019/354 maintained until the expiry of the period allowed for bringing an appeal against the present judgment, in so far as Implementing Regulation 2019/352 might be annulled to the extent that it concerns the applicant, and, in the event that an appeal might be brought in that respect, until the decision ruling on that appeal, it is sufficient to note that Decision 2019/354 was effective only until 6 March 2020. Consequently, the annulment of that decision by the present judgment has no effect on the period after that date, so that it is not necessary to rule on the question of maintaining the effects of that decision (see, to that effect and by analogy, judgment of 24 September 2019, Yanukovych v Council, T‑301/18, not published, EU:T:2019:676, paragraph 104 and the case-law cited).
Costs
132    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Annuls Council Decision (CFSP) 2019/354 of 4 March 2019 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2019/352 of 4 March 2019 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Oleksandr Viktorovych Yanukovych was maintained on the list of persons, entities and bodies subject to those restrictive measures;
2.      Orders the Council of the European Union to pay the costs.
Spielmann
Öberg
Spineanu-Matei
Delivered in open court in Luxembourg on 9 June 2021.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.
1 Confidential information omitted.