JUDGMENT OF THE GENERAL COURT (First Chamber)
20 December 2023 (*)
(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 – Misappropriation of Ukrainian State funds – Article 1(1) of Decision 2014/119/CFSP – Article 3(1) of Regulation (EU) No 208/2014 – 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 Cases T‑262/21 and T‑256/22,
Viktor Fedorovych Yanukovych, residing in Rostov-on-Don (Russia), represented by B. Kennelly, Senior Counsel,
applicant,
v
Council of the European Union,
represented, in Case T‑262/21, by A. Boggio‑Tomasaz, T. Haas and S. Van Overmeire, acting as Agents, and, in Case T‑256/22, by A. Boggio‑Tomasaz and J. Rurarz, acting as Agents,
defendant,
THE GENERAL COURT (First Chamber),
composed of D. Spielmann, President, R. Mastroianni (Rapporteur) and M. Brkan, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the withdrawal of the request for a hearing submitted by the applicant and having decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to give a ruling without an oral part of the procedure,
gives the following
Judgment
1        By his actions under Article 263 TFEU, the applicant, Mr Viktor Fedorovych Yanukovych, seeks the annulment, in Case T‑262/21, of Council Decision (CFSP) 2021/394 of 4 March 2021 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2021 L 77, p. 29) and Council Implementing Regulation (EU) 2021/391 of 4 March 2021 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2021 L 77, p. 2), and, in Case T‑256/22, of Council Decision (CFSP) 2022/376 of 3 March 2022 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2022 L 70, p. 7) and Council Implementing Regulation (EU) 2022/375 of 3 March 2022 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2022 L 70, p. 1), in so far as those acts (‘the contested acts’) maintain his name on the list of persons, entities and bodies subject to those restrictive measures.
Background to the dispute
2        The present cases have 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.
3        The applicant is the former President of Ukraine.
4        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’).
5        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.’
6        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.’
7        The detailed rules governing that freezing of funds are laid down in Article 1(3) to (6) of Decision 2014/119.
8        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.
9        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.
10      The applicant’s name appeared on the list with the identifying information ‘former President of Ukraine’ 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.’
11      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.
12      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).
13      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.’
14      Regulation No 208/2014 was similarly amended by Regulation 2015/138.
15      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, 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.
16      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.’
17      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.
18      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’).
19      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.
20      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.
21      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 17 above).
22      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).
23      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’).
24      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.
25      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.
26      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.
27      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’).
28      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.
29      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.
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 March 2019 acts’).
31      By the March 2019 acts, the application of the restrictive measures at issue was extended with respect to the applicant 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 16 above, together with clarification concerning respect for his rights of defence and right to effective judicial protection in the criminal proceedings on which the Council had relied.
32      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.
33      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.
34      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.
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 March 2020 acts’).
36      By application lodged at the Court Registry on 14 May 2020, the applicant brought an action, registered as Case T‑291/20, for annulment of the March 2020 acts in so far as they concerned him.
37      Between November 2020 and January 2021, the Council and the applicant exchanged several letters concerning the possible extension of the restrictive measures at issue vis-à-vis the applicant. In particular, the Council sent the applicant information provided by the Prosecutor General’s Office of Ukraine (‘the PGO’) concerning, inter alia, criminal proceedings No [confidential] (1) (‘proceedings No [confidential]’) and the steps taken by the prosecution or other authorities in connection with the implementation of the decision on the applicant’s apprehension, on which the Council was basing the proposed extension.
38      On 4 March 2021, the Council adopted Decision (CFSP) 2021/394 amending Decision 2014/119 (OJ 2021 L 77, p. 29), and Implementing Regulation (EU) 2021/391 implementing Regulation No 208/2014 (OJ 2021 L 77, p. 2) (together, ‘the contested acts in Case T‑262/21’).
39      By the contested acts in Case T‑262/21, the application of the restrictive measures at issue was extended until 6 March 2022, and the applicant’s name was maintained on the list with the same statement of reasons as that set out in paragraph 16 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, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decision of the High Anti-Corruption Court of Ukraine of 1[0] August 2020 in which the Court examined the petition of the National Anti-Corruption Bureau of Ukraine and granted permission to apprehend Mr Yanukovych. In the Court’s ruling, the investigating judge confirmed that there is a reasonable suspicion for Mr Yanukovych’s involvement in a criminal offence relating to misappropriation and confirmed Mr Yanukovych’s status as suspect in the criminal proceedings.
The High Anti-Corruption Court also established that Mr Yanukovych has been staying outside Ukraine since 2014. The Court concluded that there were sufficient grounds to believe that Mr Yanukovych was hiding from the pre-trial investigation bodies.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr Yanukovych has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described in the decision of the High Anti-Corruption Court attributed to Mr Yanukovych have significantly contributed to the length of the investigation.’
40      On 5 March 2021, the Council sent a letter to the applicant’s lawyers. In that letter, the Council informed the applicant that, for the purposes of the review of the restrictive measures, it had taken account of the observations which the applicant had submitted in earlier correspondence, and explained why it did not accept some of the main claims made by the applicant in his observations. In addition, it set out the reasons for its view that the applicant’s rights of defence and his right to effective judicial protection had been respected in the criminal proceedings on which the Council had relied. The Council also drew the applicant’s attention to the possibility of submitting further observations.
41      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.
42      Between November 2021 and January 2022, the Council and the applicant exchanged several letters concerning the possible extension of the restrictive measures at issue vis-à-vis the applicant. In particular, by letter of 25 January 2022, the Council sent the applicant information provided by the PGO concerning proceedings No [confidential], criminal proceedings No [confidential]
(‘proceedings No [confidential]’) and criminal proceedings No [confidential] (‘proceedings No [confidential]’) brought against him in Ukraine.
43      On 3 March 2022, the Council adopted Decision (CFSP) 2022/376 of 3 March 2022 amending Decision 2014/119 (OJ 2022 L 70, p. 7), and Implementing Regulation (EU) 2022/375 of 3 March 2022 implementing Regulation No 208/2014 (OJ 2022 L 70, p. 1) (together, ‘the contested acts in Case T‑256/22’).
44      By the contested acts in Case T‑256/22, the application of the restrictive measures at issue was extended until 6 September 2022, and the applicant’s name was maintained on the list with the same statement of reasons as that set out in paragraph 16 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, including the fundamental right to have his case heard within a reasonable time by an independent and impartial tribunal, were respected in the criminal proceedings on which the Council relied. This is demonstrated in particular by the decision of the Supreme Anti-Corruption Court of Ukraine of 10 August 2020 in criminal proceeding[s] No [confidential] in which the Court examined the petition of the National Anti-Corruption Bureau of Ukraine and granted permission to apprehend Mr Yanukovych. In the Court’s ruling, the investigating judge confirmed that there is a reasonable suspicion for Mr Yanukovych’s involvement in a criminal offence relating to misappropriation and confirmed Mr Yanukovych’s status as suspect in the criminal proceedings.
The Supreme Anti-Corruption Court also established that Mr Yanukovych has been staying outside Ukraine since 2014. The Court concluded that there were sufficient grounds to believe that Mr Yanukovych was hiding from the pre-trial investigation bodies.
Additionally, on 15 September 2021, the Supreme Anti-Corruption Court of Ukraine followed the motion of the National Anti-Corruption Bureau of Ukraine and granted permission for the detention of Mr Yanukovych. In that decision, the investigating judge confirmed the conclusions of the Supreme Anti-Corruption Court of Ukraine of 10 August 2020.
In criminal proceeding[s] No [confidential], the Supreme Anti-Corruption Court of Ukraine in its ruling of 25 August 2021 granted permission to conduct a special pre-trial investigation in relation to Mr Yanukovych. In that ruling, the investigating judge confirmed the status of suspect of Mr Yanukovych and concluded that the evidence gives reasonable grounds for suspicion that Mr Yanukovych committed the criminal offences of which he is suspected. The judge also concluded that there are reasonable grounds to believe that Mr Yanukovych is deliberately evading the investigation and the court in order to avoid criminal liability. Furthermore, in its ruling of 7 October 2021 the Supreme Anti-Corruption Court of Ukraine imposed detention in custody on Mr Yanukovych. In the ruling, the Court confirmed the status of suspect of Mr Yanukovych as well as the reasonable grounds for suspicion that Mr Yanukovych committed criminal offences. The judge also highlighted that there is a risk of Mr Yanukovych hiding from the investigation and the court to avoid criminal liability.
The Council has information that on 29 December 2021 the prosecutor considered that the evidence gathered during the pre-trial investigation was sufficient to draw up an indictment and Mr Yanukovych and his lawyers were notified about the completion of the pre-trial investigation. The defence was granted access to the materials of the pre-trial investigation for familiarisation, in line with the provisions of the Code of Criminal Procedure of Ukraine.
In accordance with the case-law of the European Court of Human Rights, the Council considers that the periods during which Mr Yanukovych has been avoiding investigation must be excluded from the calculation of the period relevant for the assessment of respect for the right to a trial within a reasonable time. The Council therefore considers that the circumstances described in the decision of the Supreme Anti-Corruption Court attributed to Mr Yanukovych have significantly contributed to the length of the investigation.’
45      By letter of 4 March 2022, the Council informed the applicant that the restrictive measures at issue were to be maintained against him. It replied to the observations which the applicant had set out in earlier correspondence and sent him the contested acts in Case T‑256/22. 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.
46      By judgment of 30 March 2022, Yanukovych v Council (T‑291/20, not published, EU:T:2022:187), the General Court annulled the March 2020 acts in so far as they concerned the applicant.
Forms of order sought
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 actions;
–        in the alternative, in the event of the annulment of the contested acts in so far as they concern the applicant, order that the effects of Decision 2021/394 and Decision 2022/376 be maintained until the partial annulment of Implementing Regulation 2021/391 and Implementing Regulation 2022/375, respectively, takes effect;
–        order the applicant to pay the costs.
Law
49      Having heard the views of the parties, the Court has decided to join the present cases for the purposes of the judgment, in accordance with Article 68 of the Rules of Procedure.
50      In support of his actions, the applicant relies on three pleas in law alleging, first, breach of the rights of defence and the right to effective judicial protection, secondly, manifest errors of assessment and, thirdly, breach of his right to property.
51      In the context of the first plea, alleging breach of the rights of defence and the right to effective judicial protection, first, the applicant refers to the Council’s obligations under the case-law of the Court of Justice and the General Court requiring it to verify that the decision or decisions of the Ukrainian authorities on which it relied in order to include his name on the list were taken in accordance with his fundamental rights of defence and fundamental right to effective judicial protection.
52      Secondly, as regards the contested acts in Case T‑262/21, the applicant submits that the Council now relies only on proceedings No [confidential], which were severed from prosecution case No [confidential]. In that case, despite the passage of seven years, no charges had been brought, let alone any prosecution initiated or trial commenced. According to the applicant, that unacceptable and highly prejudicial delay not only demonstrates that the case has no legitimate legal or factual underpinning, but also involves in itself a breach of his fundamental rights. In addition, the applicant states that although the Council put specific questions to the public prosecutor’s office, many of them went unanswered, including the critical question as to why the case had never been brought before a Ukrainian court. The applicant claims that he also raised multiple errors and omissions in the information provided and questions posed, which the Council ignored.
53      Thirdly, the applicant maintains that the statement of reasons contained in the contested acts in Case T‑262/21 is sufficient on its own to demonstrate that the Council is unable to point to any information in its file which demonstrates that it verified that his rights of defence and right to effective judicial protection had been respected in proceedings No [confidential]. He adds that the only procedural decision which the Council sought to rely on in that regard is a decision of the High Anti-Corruption Court of Ukraine of 10 August 2020. That decision does not demonstrate that the applicant’s rights of defence or his right to effective judicial protection were respected for at least the following reasons:
–        the decision was made during a closed court hearing, the date of which was neither notified to, nor attended by, the applicant or his Ukrainian lawyers;
–        the decision was unlawful as the PGO failed to resume the investigation following its last suspension on 13 August 2018 before making its application to a Ukrainian court;
–        the decision was not subject to appeal;
–        the decision had expired on 10 February 2021, prior to the imposition of the sanctions in 2021;
–        the decision was merely procedural, in that it was only an extension of a previous procedural decision, as opposed to a new and substantive development; such decisions, which are ‘restrictive’ or ‘procedural’ in nature, and merely ‘incidental’ to the criminal investigations on which sanctions are based, are not capable, alone, of demonstrating that the applicant’s rights of defence and his right to effective judicial protection were protected in substance.
54      The applicant also argues that the Council is attempting to shift the burden of proof and place the onus on him to demonstrate that his rights were infringed, instead of considering whether it had sufficient material to determine that, in the light of the decision of the High Anti-Corruption Court of 10 August 2020, the applicant’s rights had in substance been respected, and then to explain why it had reached that conclusion in its statement of reasons.
55      Fourthly, according to the applicant, the Council’s reliance on the conclusion of the High Anti-Corruption Court of Ukraine that the notice of suspicion was served in accordance with the Code of Criminal Procedure, that the applicant has the status of suspect in the investigation, and that there were sufficient grounds for believing that he was hiding from pre-trial investigation bodies, is at odds with the reasoned decision of the District Court of Pechersk in Kiev (‘Pechersk District Court’) of 8 October 2018 in connection with proceedings No [confidential].
56      Fifthly, the applicant asserts that the Council’s argument that he is hiding from the pre-trial investigation bodies is further undermined by the fact that, after sending several letters to the public prosecutor’s office in 2015 informing it of his whereabouts in Russia, and after also expressing his willingness in each of those letters to participate in the investigation via international legal assistance measures, the applicant then provided his precise address to the Ukrainian authorities on 6 November 2015. In addition, on 16 March 2017 the applicant’s Ukrainian lawyers provided the PGO with a letter from the Russian public prosecutor’s office dated 7 March 2017 confirming the applicant’s address.
57      Sixthly, the applicant claims that the Council is wrong to rely on the European Court of Human Rights (‘ECtHR’) case which gave rise to the judgment of 20 June 2006, Vayiç v. Turkey (CE:ECHR:2006:0620JUD001807802), to support its claim to have verified that his rights of defence and right to effective judicial protection had been respected. That case concerned an accused person who had absconded pending trial following the filing of an indictment with the national court, where the subsequent delay in the proceedings could quite properly be attributed to the accused. Those facts are very different from the facts at issue here. Moreover, there are many other cases in which the ECtHR has found that proceedings were unreasonably long on account of unjustifiably lengthy pre-trial investigations.
58      Seventhly, according to the applicant, the Council cannot remedy its inability to identify any aspect of the investigation in proceedings No [confidential] demonstrating that the Ukrainian authorities respected his rights by means of a generic reference to the human rights provisions which theoretically exist in Ukrainian law. It does not follow that judicial decisions were adopted pursuant to those provisions or that they were otherwise correctly and fairly applied by the Ukrainian authorities.
59      Eighthly, the applicant states that in order to determine whether the Council could properly rely, if at all, on the documents of the public prosecutor’s office in its decision-making process, it should have taken into account, in the first place, the fact that the public prosecutor’s office is not independent and is intent on persecuting him, in the second place, the fact that the Ukrainian judiciary is neither independent nor impartial, and, in the third place, the fact that there has been extensive unfair treatment of the applicant, including numerous breaches of his right to a fair trial, particularly in the context of a trial for treason which was procedurally unfair and politically motivated.
60      In Case T‑256/22, in addition to the arguments put forward in Case T‑262/21, the applicant submits, in relation to proceedings No [confidential], that the decision of the High Anti-Corruption Court of Ukraine of 15 September 2021 is in essence almost identical to its decision of 10 August 2020. Consequently, he raises the same arguments as those raised against the latter decision.
61      As regards two other decisions of the High Anti-Corruption Court of Ukraine of 25 August and 7 October 2021 on which the Council relies in the context of proceedings No [confidential], in the first place, the applicant states that the decision of 25 August 2021 was not subject to appeal, contrary to Article 42 of the Ukrainian Code of Criminal Procedure. He adds that his Ukrainian lawyers nonetheless tried to appeal against that decision, but they were refused an opportunity to do so. The applicant maintains that that refusal was also unlawful.
62      In the second place, the applicant claims that although the decision of 7 October 2021 was prima facie open to appeal and was appealed against, the Appeals Chamber of the High Anti-Corruption Court of Ukraine refused to open proceedings on two grounds: the decision did not constitute an immediate interference with the applicant’s rights and it was not a decision which, in the Appeals Chamber’s view, could be appealed against, since it had been adopted without the applicant’s participation.
63      In the third place, according to the applicant, neither of those decisions complies with the provisions of the Ukrainian Code of Criminal Procedure.
64      In the fourth place, the applicant states that the PGO’s ability to lodge the applications leading to the decisions of the High Anti-Corruption Court of Ukraine of 25 August and 7 October 2021 was based on an amendment to the law enacted in Ukraine on 27 April 2021 which was manifestly politically motivated and designed to target specific individuals such as the applicant and to circumvent respect for his existing legal rights.
65      In the fifth place, the applicant asserts that even though permission was given to proceed in absentia (decision of the High Anti-Corruption Court of Ukraine of 25 August 2021), the Ukrainian authorities’ practice of artificially suspending and reopening the investigation continued unabated.
66      In the sixth place, the applicant argues that the decisions of the High Anti-Corruption Court of Ukraine of 25 August and 7 October 2021 are merely procedural inasmuch as they are only an extension of previous procedural decisions, as opposed to new and substantive developments. Such decisions, which are ‘restrictive’ or ‘procedural’ in nature, and merely ‘incidental’ to the criminal investigations on which sanctions are based, are not capable, alone, of demonstrating that the applicant’s rights of defence and his right to effective judicial protection were protected in substance.
67      In the seventh place, the applicant submits that the Ukrainian authorities did not provide the Council with a copy of any decision by a Ukrainian prosecutor proving that the pre-trial investigation had been completed or that an indictment had been drawn up and issued or served. Accordingly, those alleged developments cannot be relied on for any purpose.
68      Lastly, the applicant maintains that although there may be decisions of the Ukrainian courts which contradict the decision of 8 October 2018 delivered by Pechersk District Court, including in the same case, namely proceedings No [confidential], it is clear that nothing occurred during that period to warrant such a change. The Council cannot therefore, as a matter of principle, rely on contradictory decisions of the Ukrainian courts.
69      In the first place, the Council submits, as regards the delay to which the applicant refers in proceedings No [confidential], that the applicant’s conduct, as described in the decision of the High Anti-Corruption Court of 10 August 2020, contributed to the length of the investigation and, therefore, to the delay in bringing charges. The applicant’s hiding from the pre-trial investigation bodies represented conduct that must be taken into account in determining whether the length of the investigation or proceedings was reasonable in accordance with the case-law of the ECtHR.
70      In the second place, the Council contends that, as regards proceedings No [confidential], it verified that the applicant’s rights of defence and his right to effective judicial protection had been respected in accordance with the
‘Azarov case-law’. To that end, and after also examining the applicant’s observations, the Council put a number of specific questions to the PGO.
71      In the third place, the Council denies that the decision of the High Anti-Corruption Court of Ukraine of 10 August 2020 infringed the applicant’s rights of defence and his right to effective judicial protection because it was delivered in a closed court hearing. That decision was adopted in accordance with the Ukrainian Code of Criminal Procedure in so far as it is a decision of a procedural nature which does not directly affect the rights or legal position of the person against whom it is taken.
72      In the fourth place, the Council argues that the applicant’s complaint that the PGO did not resume the investigation before making an application to a Ukrainian court is unfounded, as the applicant does not explain why the decision granting permission to apprehend necessarily requires the resumption of the investigation in accordance with Ukrainian law.
73      In the fifth place, with regard to the expiry of the decision prior to the imposition of sanctions in 2021, the Council states that the expiry of the decision granting permission to apprehend does not, however, negate the relevant information concerning the existence of reasonable grounds for suspecting that the applicant was involved in a criminal offence relating to misappropriation of funds and his status as suspect in the criminal proceedings. By contrast, the expiry on 10 February 2021 of the decision concluding that there were sufficient grounds for believing that the applicant was hiding from the pre-trial investigation bodies reinforces the court’s conclusion. According to the Council, the decision in question expired because the applicant did not appear before the investigating judge.
74      In the sixth place, concerning the procedural nature of the decision of 10 August 2020, the Council contends that it must be entitled to rely on valid judicial decisions of courts in third countries adopted pursuant to procedural codes that ensure respect for the rights of defence. The Council also asserts that the decision of 10 August 2020 was merely the extension of an earlier procedural decision which, according to the material annexed to the application, had not been challenged by the applicant for breach of his rights of defence or his right to effective judicial protection.
75      In the seventh place, the Council maintains that the reference by the applicant to the reasoned decision of Pechersk District Court of 8 October 2018 is not relevant to the present case, as the Council did not rely on the investigation in relation to proceedings No [confidential].
76      In the eighth place, with regard to the letters sent to the PGO concerning the applicant’s whereabouts in Russia, as evidence of his willingness to participate in the investigation via international legal assistance measures, the Council states that, under the Ukrainian Code of Criminal Procedure, the applicant must be physically present when the application for a coercive measure of detention is being considered, and international legal assistance via videoconference or conference call is possible only in order to question a person, not for the entire judicial proceedings.
77      In the ninth place, regarding the argument that it was wrong to rely on the case which gave rise to the judgment of the ECtHR of 20 June 2006, Vayiç v. Turkey (CE:ECHR:2006:0620JUD001807802), the Council states that, according to the relevant case-law of that court, the applicant cannot rely on the period during which he was a fugitive, when he sought to avoid being brought to justice in his country.
78      Lastly, while disputing the probative value of a number of reports by Professor B. relied on by the applicant and drawn up on the instructions of his lawyers, the Council nevertheless submits that the events mentioned in the sections of the application concerning the PGO and the Ukrainian judiciary are unrelated to the criminal proceedings on which the inclusion of the applicant’s name on the list was based. It adds that the case-law of the Court of Justice and the General Court in no way supports the applicant’s view that it is for the Council to assess the general claims concerning the independence of the PGO or the Ukrainian judiciary.
79      Regarding the applicant’s claims raised in Case T‑256/22, alleging breach of his rights of defence and right to effective judicial protection in the light of the two decisions of the High Anti-Corruption Court of Ukraine of 25 August and 7 October 2021 in connection with proceedings No [confidential], first, the Council states that those decisions were taken in open court and with the participation of the applicant’s lawyers.
80      Secondly, the Council maintains that the decisions of the High Anti-Corruption Court of Ukraine of 25 August and 7 October 2021 are decisions of a procedural nature which do not directly affect the rights or legal position of the person against whom they are taken. Consequently, under Ukrainian law, the persons concerned have no right of appeal against such decisions.
81      Thirdly, the Council denies that the decisions of the High Anti-Corruption Court of Ukraine of 25 August and 7 October 2021 do not comply with the provisions of the Ukrainian Code of Criminal Procedure.
82      Fourthly, the Council contends that the applicant’s assertion that the amendment to the law enacted in Ukraine on 27 April 2021 must be regarded as ‘manifestly politically motivated’ is unsubstantiated.
83      Fifthly, regarding the applicant’s argument on the procedural nature of the decisions of the High Anti-Corruption Court of Ukraine of 25 August and 7 October 2021, the Council refers to its arguments concerning the decisions of that court in connection with proceedings No [confidential].
84      Sixthly, the Council submits that contrary to what the applicant claims, the PGO duly informed his lawyer that the evidence gathered during the pre-trial investigation was sufficient to draw up an indictment and granted access to the materials in the pre-trial investigation, thereby affording him the opportunity to familiarise himself with the evidence.
85      Seventhly, with respect to the reasoned decision of Pechersk District Court of 8 October 2018 relied on by the applicant, the Council states that all subsequent decisions of the High Anti-Corruption Court of Ukraine overturned the conclusions of that decision.
86      Lastly, as regards the letters sent to the PGO concerning the applicant’s whereabouts in Russia, as evidence of his willingness to participate in the investigation via international legal assistance measures, the Council states that, under the Ukrainian Code of Criminal Procedure, the applicant must be physically present when the application for a coercive measure of detention is being considered, and international legal assistance via videoconference or conference call is possible only in order to question a person, not for the entire judicial proceedings.
87      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).
88      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).
89      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).
90      Thus, while, under a listing criterion such as that referred to in paragraph 13 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to respect the rights of the defence and the right to effective judicial protection means that it must satisfy itself that those rights were respected by the authorities of the third State which adopted that decision (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 67 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 77 and the case-law cited).
91      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).
92      Moreover, although it is true that the fact that a third State is among the States which acceded to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), entails review, by the ECtHR, of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 91 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).
93      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).
94      Ultimately, when it bases the adoption or the maintenance of restrictive measures such as those at issue on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, secondly, refer, in the decision imposing restrictive measures, to the reasons for which it considers that that decision of the third State has been adopted in accordance with those rights (see judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 71 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 81 and the case-law cited).
95      In this instance, such obligations appear all the more inescapable since, as is clear from recital 2 of Decision 2014/119, that decision and the subsequent decisions were adopted as part of a policy to consolidate and support the rule of law and respect for human rights in Ukraine (see paragraph 5 above), based on the objectives set out in Article 21(2)(b) TEU. Consequently, the purpose of those decisions, which is, inter alia, to assist the Ukrainian authorities in finding any misappropriation of State funds that has taken place and to ensure that it remains possible for those authorities to recover the proceeds of misappropriation, would be irrelevant as regards those objectives if that finding were vitiated by a denial of justice or even by arbitrariness (see, to that effect and by analogy, judgment of 28 October 2020, Ben Ali v Council, T‑151/18, EU:T:2020:514, paragraph 95).
96      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.
97      In that regard, it must be noted that the Council referred in the contested acts to the reasons why it had considered that the decision of the Ukrainian authorities to initiate and conduct criminal proceedings against the applicant for misappropriation of public funds or assets had been adopted in accordance with his rights of defence and right to effective judicial protection (see paragraphs 39 and 44 above). It is nevertheless necessary to ascertain whether the Council was right to consider that to have been so in this instance.
98      The restrictive measures previously adopted were extended and maintained with respect to the applicant by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as amended by Decision 2015/143, and in Article 3 of Regulation No 208/2014, as amended by Regulation 2015/138 (see paragraphs 13 and 14 above). That criterion covers persons who have been identified as responsible for the misappropriation of Ukrainian State funds, including persons subject to investigation by the Ukrainian authorities.
99      It is apparent from the reasons set out in the contested acts, outlined in paragraphs 39 and 44 above, and from the correspondence between the Council and the applicant, that the Council, in deciding to maintain the applicant’s name on the list both in 2021 and in 2022, relied on the decision of the Ukrainian authorities to initiate and conduct criminal-investigation proceedings relating to an offence of misappropriation of Ukrainian State funds.
100    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); of 9 June 2021, Yanukovych v Council (T‑303/19, not published, EU:T:2021:334); and of 30 March 2022, Yanukovych v Council (T‑291/20, not published, EU:T:2022:187), on the decision of the Ukrainian authorities to initiate and conduct criminal-investigation proceedings relating to an offence of misappropriation of Ukrainian State funds.
101    It must also be noted that when, by the contested acts, the Council amended the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, it added – as it had done when adopting the March 2019 acts – a new section entirely devoted to the rights of defence and the right to effective judicial protection, which is subdivided into two parts.
102    The first part of that section contains a simple, general reference to the rights of defence and the right to effective judicial protection under the Ukrainian Code of Criminal Procedure. In particular, reference is made first of all to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. It is then stated, first, that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, acts or omissions of the investigator or public prosecutor must be considered by an investigating judge of a local court in the presence of the complainant or his or her defence lawyer or legal representative. Secondly, it is stated, inter alia, that Article 309 of that code specifies the decisions of investigating judges that may be challenged on appeal. Lastly, it is made clear that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible pursuant to a ruling by the investigating judge or a court.
103    The second part of the section concerns respect for the rights of defence and the right to effective judicial protection of each person whose name appears on the list. As regards the applicant specifically, in the contested acts in Case T‑262/21, it is stated that, according to the information in the Council’s file, the applicant’s rights of defence and his right to effective judicial protection were respected in the criminal proceedings on which the Council relied, as is demonstrated, in particular, ‘by the decision of the High Anti-Corruption Court of Ukraine of 1[0] August 2020 in which the Court examined the petition of the National Anti-Corruption Bureau of Ukraine and granted permission to apprehend Mr Yanukovych’ and in which ‘the investigating judge confirmed that there is a reasonable suspicion for Mr Yanukovych’s involvement in a criminal offence relating to misappropriation and confirmed Mr Yanukovych’s status as suspect in the criminal proceedings’.
104    That statement of reasons was, in essence, also provided in the letter of 5 March 2021 sent to the applicant (see paragraph 40 above).
105    Thus, it follows from a combined reading of the reasons given in the contested acts in Case T‑262/21 and in the letter of 5 March 2021 that proceedings No [confidential] are the only proceedings in respect of which the Council attests to actually having verified compliance with the applicant’s rights of defence and his right to effective judicial protection in the context of the contested acts in that case.
106    As regards the contested acts in Case T‑256/22, the second part of the section concerning respect for the rights of defence and the right to effective judicial protection of each person whose name appears on the list states, as regards the applicant specifically, that, according to the information in the Council’s file, the applicant’s rights of defence and his right to effective judicial protection were respected in the criminal proceedings on which the Council relied, as is demonstrated, in particular, ‘by the decision of the Supreme Anti-Corruption Court of Ukraine of 10 August 2020
in criminal proceeding[s] No [confidential] in which the Court examined the petition of the National Anti-Corruption Bureau of Ukraine and granted permission to apprehend Mr Yanukovych’ and in which ‘the investigating judge confirmed that there is a reasonable suspicion for Mr Yanukovych’s involvement in a criminal offence relating to misappropriation and confirmed Mr Yanukovych’s status as suspect in the criminal proceedings’. Furthermore, the Council added that, ‘on 15 September 2021, the Supreme Anti-Corruption Court of Ukraine followed the motion of the National Anti-Corruption Bureau of Ukraine and granted permission for the detention of Mr Yanukovych’ and that ‘the investigating judge confirmed the conclusions of the Supreme Anti-Corruption Court of Ukraine of 10 August 2020’.
107    The Council also stated the following:
‘In criminal proceeding[s] [confidential], the Supreme Anti-Corruption Court of Ukraine in its ruling of 25 August 2021 granted permission to conduct a special pre-trial investigation in relation to Mr Yanukovych. In that ruling, the investigating judge confirmed the status of suspect of Mr Yanukovych and concluded that the evidence gives reasonable grounds for suspicion that Mr Yanukovych committed the criminal offences of which he is suspected. The judge also concluded that there are reasonable grounds to believe that Mr Yanukovych is deliberately evading the investigation and the court in order to avoid criminal liability. Furthermore, in its ruling of 7 October 2021 the Supreme Anti-Corruption Court of Ukraine imposed detention in custody on Mr Yanukovych. In the ruling, the Court confirmed the status of suspect of Mr Yanukovych as well as the reasonable grounds for suspicion that Mr Yanukovych committed criminal offences. The judge also highlighted that there is a risk of Mr Yanukovych hiding from the investigation and the court to avoid criminal liability.’
108    That statement of reasons was, in essence, also provided in the letter of 4 March 2022 sent to the applicant (see paragraph 45 above).
109    Thus, it follows from a combined reading of the reasons given in the contested acts in Case T‑256/22 and in the letter of 4 March 2022 that proceedings No [confidential] and proceedings No [confidential] are the two sets of proceedings in respect of which the Council attests to actually having verified compliance with the applicant’s rights of defence and his right to effective judicial protection in that case.
110    In this instance, it must be observed at the outset that the Council has failed to show to what extent the judicial decisions referred to in paragraphs 103, 106 and 107 above demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected in proceedings No [confidential] and proceedings No [confidential]. As stated in paragraphs 90 and 91 above, the Council was required, in the instant case, before deciding to maintain the restrictive measures at issue, to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct criminal-investigation proceedings in relation to offences constituting the misappropriation of public funds or assets allegedly committed by the applicant had been taken in accordance with those rights of the applicant (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 94 and the case-law cited).
111    From that perspective, neither the decision of the High Anti-Corruption Court of Ukraine of 10 August 2020 granting permission, upon application by the PGO, to apprehend Mr Yanukovych and confirming his status as suspect in proceedings No [confidential], nor its decision of 15 September 2021, concerning the same proceedings, allowing the PGO’s application and authorising the detention of Mr Yanukovych, can be identified as decisions to initiate and conduct an investigation procedure justifying the maintenance of the restrictive measures at issue, since they are two incidental decisions. The same conclusion applies in respect of the decision of the High Anti-Corruption Court of Ukraine of 25 August 2021 granting permission to conduct a special pre-trial investigation in relation to Mr Yanukovych, in proceedings No [confidential], and its decision of 7 October 2021 imposing detention in custody on Mr Yanukovych. 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).
112    It is therefore necessary to ascertain whether the Council was right to consider that those judicial decisions demonstrated that the applicant’s rights of defence and his right to effective judicial protection were respected.
113    In that regard, it should be noted that the decision of 10 August 2020 was taken and, as the applicant observes, also expired before the adoption of the contested acts. It follows that that decision is not sufficient to establish that proceedings No [confidential] on which the Council relies in order to maintain, for the period from March 2021 to March 2022, the restrictive measures at issue vis-à-vis the applicant, were conducted in accordance with his rights of defence and right to effective judicial protection (see, to that effect, judgment of 30 March 2022, Yanukovych v Council, T‑291/20, not published, EU:T:2022:187, paragraphs 100 and 101).
114    Moreover, it should be noted that the decisions of the High Anti-Corruption Court of Ukraine of 10 August 2020 and 15 September 2021 were adopted at two hearings held in camera, the dates of the hearings were not notified to the applicant or his Ukrainian lawyers, and they did not attend the hearings. Accordingly, those decisions do not demonstrate that the applicant’s rights of defence and his right to effective judicial protection were respected in proceedings No [confidential].
115    Concerning the decisions of the High Anti-Corruption Court of Ukraine of 25 August and 7 October 2021 adopted in proceedings No [confidential], it should be noted that even if, as the Council submits, those decisions were taken in open court and with the participation of the applicant’s lawyers, the fact remains that the Council itself states in its written pleadings that they are decisions of a procedural nature which do not directly affect the rights or legal position of the person against whom they are taken and, as such, are not subject to appeal under the Ukrainian Code of Criminal Procedure. In those circumstances, as the applicant points out, it cannot reasonably be maintained that a decision which does not affect the applicant’s rights or his legal situation and, as such, is not subject to appeal is capable of demonstrating that his rights of defence and right to effective judicial protection were respected.
116    In any event, it should also be pointed out that all the judicial decisions referred to in paragraphs 103, 106 and 107 above fall within the scope, inter alia, of the criminal proceedings which justified maintaining the applicant’s name on the list and are merely incidental in relation to those proceedings since they are either restrictive or procedural in nature. Such decisions, which may serve at most to establish the existence of a sufficiently solid factual basis, in that, in accordance with the applicable listing criterion, the applicant was subject to criminal proceedings relating to an offence of misappropriation of Ukrainian State funds or assets, are not ontologically capable, alone, of demonstrating that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant is, in essence, based, was taken in accordance with his rights of defence and right to effective judicial protection, which it is for the Council to verify, in accordance with the case-law recalled in paragraph 91 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).
117    In that regard, it must also be observed that the Council was under an obligation to carry out such verification irrespective of any evidence adduced by the applicant to show that, in this instance, his rights of defence and right to effective judicial protection had been infringed, the mere possibility of invoking an infringement of those rights before the Ukrainian courts pursuant to provisions of the Code of Criminal Procedure not being sufficient in itself to demonstrate that those rights were respected by the Ukrainian judicial authorities (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 121 and the case-law cited).
118    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).
119    Nor, moreover, does the Council explain how, in particular, the mere existence of the judicial decisions referred to in paragraphs 103, 106 and 107 above would permit the inference that respect for the applicant’s right to effective judicial protection was guaranteed. In that regard, it should be noted that proceedings No [confidential] and proceedings No [confidential] were still at the stage of the pre-trial investigation, which had been transferred to the National Anti-Corruption Bureau a short time before, with the result that they had not been brought before a Ukrainian court for consideration of the merits, the Ukrainian court having been seised only of procedural matters.
120    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.
121    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.
122    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).
123    It is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, on account, essentially, of the continuing conduct of the same preliminary investigations, as is the situation here, the Council is required, prior to the adoption of a decision extending the application of those measures, to verify whether that person’s right to be tried within a reasonable time has been respected (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 101, and of 9 June 2021, Yanukovych v Council, T‑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).
124    In that regard, as has been noted in paragraph 95 above, it is important to bear in mind the precautionary nature of freezing the applicant’s assets and the purpose thereof, that is to say, to assist the Ukrainian authorities with establishing any misappropriation of State funds that has taken place, on conclusion of the judicial proceedings, and to ensure that it remains possible for those authorities, ultimately, to recover the proceeds of that misappropriation. It therefore falls to the Council to ensure that that measure, justified precisely by its temporary nature, is not extended unnecessarily, to the detriment of the applicant’s rights and freedoms, on which it has a significant negative impact, merely because the criminal proceedings on which it is based and which are still at the pre-trial investigation stage have been left open, in essence, indefinitely (see judgment of 30 March 2022, Yanukovych v Council, T‑291/20, not published, EU:T:2022:187, paragraph 118).
125    It is also apparent from the case-law of the ECtHR concerning the interpretation of Article 6 ECHR that delays caused by suspensions of the proceedings by the authorities, decisions to join and disjoin different criminal proceedings, and referrals of a case back to the authorities for further investigation in the context of the same proceedings may be regarded as evidence of a serious deficiency in the operation of the criminal justice system (see, to that effect, ECtHR, 23 June 2016, Krivoshey v. Ukraine, CE:ECHR:2016:0623JUD000743305, § 97 and the case-law cited). In this instance, in the light of the prolonged duration of the pre-trial investigations in question, it follows from what has been stated in paragraph 123 above that the Council was required, prior to the adoption of the contested acts, to satisfy itself that the duration of those investigations was not unreasonable. Moreover, from that point of view, the Council should have taken into account any evidence of possible deficiencies in the Ukrainian criminal justice system apparent from the case file, that is to say, in this instance, the fact that proceedings No [confidential] and proceedings Noo[confidential] had been separated from other proceedings, that they had been suspended and reopened on several occasions, and that the pre-trial investigations conducted in those proceedings had been transferred to another investigating body several years after having been initiated (see, in particular, paragraph 119 above), without entailing any progress, instead of merely relying on the PGO’s explanations exclusively as a basis for its assessment (see judgment of 30 March 2022, Yanukovych v Council, T‑291/20, not published, EU:T:2022:187, paragraph 119).
126    With respect to the Council’s argument that, in accordance with the case-law of the ECtHR, the flight of an accused person has in itself certain repercussions on the scope of the guarantee provided by Article 6(1) ECHR as regards the duration of the procedure, it must be observed that, even if the applicant unlawfully evaded the investigation and absconded, the Council has failed to demonstrate that that conduct had repercussions on the duration of the procedure which are attributable to the applicant. By contrast, it should be noted that in response to the Council’s request [confidential]
in relation to proceedings No [confidential], the Ukrainian authorities
[confidential]. Moreover, it must be stated that proceedings No [confidential], relating to acts allegedly committed by the applicant between 2007 and 2012, and proceedings No [confidential], relating to acts allegedly committed by the applicant between 2003 and 2013, on which the Council relies, were still, seven and eight years after being initiated, respectively, at the pre-trial investigation stage.
127    It should also be pointed out, as the applicant does, that the question put by the Council to the PGO enquiring about what had prevented it from bringing proceedings No [confidential] and proceedings No [confidential] before a Ukrainian court for consideration of the merits received no response from the PGO.
128    Finally, the Council should at the very least have assessed all the evidence provided by the PGO and the applicant and set out the reasons why, following an independent and thorough analysis of that evidence, it was able to conclude that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities had been respected with regard to his right to have his case heard within a reasonable time (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 131 and the case-law cited).
129    It cannot therefore be concluded, having regard to the documents in the file, that the information available to the Council at the time of the adoption of the contested acts enabled it to verify whether the decisions of the Ukrainian judicial authorities to initiate and conduct the criminal proceedings at issue had been taken and implemented in accordance with the applicant’s right to effective judicial protection and, more specifically, his right to have his case heard within a reasonable time.
130    In that regard, it must also be noted that the well-established case-law according to which, in the event of the adoption of a decision to freeze funds, such as the decision adopted in respect of the applicant, it is not for the Council or the Courts of the European Union to verify whether or not the investigation of the person concerned by those restrictive measures in Ukraine was well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of those restrictive measures was taken in accordance with the rights of the defence and the right to effective judicial protection (see, to that effect, judgments of 3 February 2021, Klymenko v Council, T‑258/20, EU:T:2021:52, paragraph 104 and the case-law cited, and of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 133 and the case-law cited).
131    Lastly, the Council’s argument that, in essence, it is not for the Council to call into question the decisions of the Ukrainian courts, which benefit from a kind of presumption of legality, must be rejected. While it is true, as the Council submits, that it is entitled to rely on such decisions as evidence of the existence of criminal proceedings relating to allegations against the applicant of misappropriation of public funds, the same cannot be said as regards evidence of the proper conduct of those criminal proceedings, including as regards respect for the applicant’s rights of defence and his right to effective judicial protection. As noted in paragraph 91 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).
132    That is particularly so where, as here, the Council was not in possession of certain decisions and certain information on which it intended to rely and, moreover, the applicant raised doubts as to whether his rights had been respected in the context of the adoption of the judicial decisions on which the Council intended to rely. In any event, it is not inconceivable that, having regard in particular to the observations submitted by the applicant, that institution should be obliged to seek clarification from the Ukrainian authorities regarding respect for those rights (see, to that effect, judgment of 9 June 2021, Yanukovych v Council, T‑303/19, not published, EU:T:2021:334, paragraph 136 and the case-law cited), which has not been the case here.
133    In the light of all of the foregoing considerations, it has not been established that the Council satisfied itself, prior to the adoption of the contested acts, that the Ukrainian judicial authorities had complied with the applicant’s rights of defence and his right to effective judicial protection in the criminal proceedings on which the Council relied. It follows that, in deciding to maintain his name on the list, the Council made an error of assessment.
134    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.
135    Having regard to the claim put forward by the Council in the alternative (see the second indent of paragraph 48 above), seeking, in essence, to have the effects of Decision 2021/394 and Decision 2022/376 maintained until the expiry of the period allowed for bringing an appeal against the present judgment, in so far as Implementing Regulation 2021/391 and Implementing Regulation 2022/375, respectively, might be annulled to the extent that they concern the applicant, and, in the event that an appeal might be brought in that respect, until the decision ruling on that appeal, it is sufficient to note that Decision 2021/394 was effective only until 6 March 2022 and Decision 2022/376 was effective only until 6 September 2022. Consequently, the annulment of those decisions by this judgment has no effect on the period after those dates, so that it is not necessary to rule on the question of maintaining the effects of those decisions (see, to that effect, judgment of 21 December 2021, Klymenko v Council, T‑195/21, EU:T:2021:925, paragraph 113 and the case-law cited).
Costs
136    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 (First Chamber)
hereby:
1.      Joins Cases T‑262/21 and T‑256/22 for the purpose of the judgment;
2.      Annuls Council Decision (CFSP) 2021/394 of 4 March 2021 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2021/391 of 4 March 2021 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, as well as Council Decision (CFSP) 2022/376 of 3 March 2022 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, and Council Implementing Regulation (EU) 2022/375 of 3 March 2022 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Viktor Fedorovych Yanukovych was maintained on the list of persons, entities and bodies subject to those restrictive measures;
3.      Orders the Council of the European Union to pay the costs.
Spielmann
Mastroianni
Brkan
Delivered in open court in Luxembourg on 20 December 2023.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.
1      Confidential information redacted.