Contents
Judgment of the General Court (Fifth Chamber)3 February 2021note(Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Freezing of funds — List of the persons, entities and bodies covered by the freezing of funds and economic resources — Maintenance of the applicant’s name on the list — Obligation of the Council of the European Union to verify that that decision was taken in accordance with the rights of defence and the right to effective judicial protection)In Case T‑258/20,Oleksandr Viktorovych Klymenko, residing in Moscow (Russia), represented by M. Phelippeau, lawyer,vCouncil of the European Union, represented by A. Vitro and P. Mahnič, acting as Agents,THE GENERAL COURT (Fifth Chamber),composed of D. Spielmann, President, O. Spineanu-Matei and R. Mastroianni (Rapporteur), Judges,Registrar: E. Coulon,gives the following
Judgment
Background to the dispute
1The present case has arisen 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.
2The applicant, Mr Oleksandr Viktorovych Klymenko, held the post of Minister for Revenue and Duties of Ukraine.
3On 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 date, 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).
4Recitals 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.’
5Article 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.’
6The detailed rules governing that freezing of funds are laid down in Article 1(3) to (6) of Decision 2014/119.
7In accordance with Decision 2014/119, Regulation No 208/2014 requires the adoption of the restrictive measures at issue and lays down detailed rules governing them, in terms which are identical, in essence, to those used in that decision.
8The names of the persons covered by Decision 2014/119 and Regulation No 208/2014 appear on the list in the annex to that decision and in Annex I to that regulation (‘the list’) together with, inter alia, the reasons for their listing. Initially, the applicant’s name did not appear on the list.
9Decision 2014/119 and Regulation No 208/2014 were amended by Council Implementing Decision 2014/216/CFSP of 14 April 2014 implementing Decision 2014/119 (OJ 2014 L 111, p. 91) and Council Implementing Regulation (EU) No 381/2014 of 14 April 2014 implementing Regulation No 208/2014 (OJ 2014 L 111, p. 33) (‘the April 2014 acts’).
10By the April 2014 acts, the applicant’s name was added to the list, with the identifying information ‘former Minister of Revenues and Charges’ 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.’
11By application lodged at the Court Registry on 30 June 2014, the applicant brought an action, registered as Case T‑494/14, seeking, inter alia, the annulment of the April 2014 acts, in so far as they concerned him.
12On 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).
13Decision 2015/143 specified the criteria, effective from 31 January 2015, for selecting the persons covered by the freezing of funds. In particular, Article 1(1) of Decision 2014/119 was replaced by 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.’
14Regulation 2015/138 amended Regulation No 208/2014 in accordance with Decision 2015/143.
15On 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, first, replaced Article 5 of Decision 2014/119, extending the application of the restrictive measures, in so far as the applicant was concerned, until 6 March 2016 and, second, amended the annex to that decision. Implementing Regulation 2015/357 consequently amended Annex I to Regulation No 208/2014.
16By the March 2015 acts, the applicant’s name was maintained on the list, with the identifying information ‘former Minister of Revenues and Charges’ 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 the abuse of office by a public office-holder in order to procure an unjustified advantage for himself or for a third party and thereby causing a loss to Ukrainian public funds or assets.’
17By application lodged at the Registry of the General Court on 15 May 2015, the applicant brought an action, registered as Case T‑245/15, seeking, inter alia, the annulment of the March 2015 acts, in so far as they concerned him.
18On 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’).
19By the March 2016 acts, the application of the restrictive measures concerning the applicant, among others, was extended to 6 March 2017. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.
20By a statement lodged at the Court Registry on 28 April 2016, the applicant modified the application in Case T‑245/15, in accordance with Article 86 of the Rules of Procedure of the General Court, so as also to request the annulment of the March 2016 acts, in so far as they applied to him.
21By order of 10 June 2016, Klymenko v Council (T‑494/14, EU:T:2016:360), adopted on the basis of Article 132 of the Rules of Procedure, the Court upheld the action referred to in paragraph 11 above, declaring it manifestly well founded, and therefore annulled the April 2014 acts, in so far as they related to the applicant.
22On 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’).
23By the March 2017 acts, the application of the restrictive measures was extended to 6 March 2018. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.
24By a statement lodged at the Court Registry on 27 March 2017, the applicant again modified the application in relation to Case T‑245/15, so as also to request the annulment of the March 2017 acts, in so far as they concerned him.
25By judgment of 8 November 2017, Klymenko v Council (T‑245/15, not published, EU:T:2017:792), the General Court dismissed all of the applicant’s claims, as referred to in paragraphs 17, 20 and 24 above.
27On 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’).
28By the March 2018 acts, the application of the restrictive measures at issue was extended to 6 March 2019. The statement of reasons for the applicant’s designation, as set out in the March 2015 acts, was not amended.
29By application lodged at the Court Registry on 30 April 2018, the applicant brought an action, registered as Case T‑274/18, seeking annulment of the March 2018 acts, in so far as they concerned him.
30On 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’).
31By the acts of March 2019, the application of the restrictive measures was extended until 6 March 2020 and the applicant’s name was retained on the list, with the same reasoning as that set out in paragraph 16 above, together with a clarification concerning respect for his rights of defence and right to effective judicial protection during the criminal proceedings, on which the Council had relied.
32By application lodged at the Court Registry on 3 May 2019, the applicant brought an action, registered as Case T‑295/19, seeking annulment of the March 2019 acts, in so far as those measures concerned him.
33By judgment of 11 July 2019, Klymenko v Council (T‑274/18, EU:T:2019:509), the General Court annulled the March 2018 acts in so far as they concerned the applicant.
34By judgment of 26 September 2019, Klymenko v Council (C‑11/18 P, not published, EU:C:2019:786), the Court of Justice set aside the judgment of 8 November 2017, Klymenko v Council (T‑245/15, not published, EU:T:2017:792) (see paragraph 25 above), and annulled the acts of March 2015, March 2016 and March 2017 in so far as they concerned the applicant.
35Between December 2019 and January 2020, the Council and the applicant exchanged several letters concerning the possible extension of the restrictive measures imposed on him. In particular, the Council sent to the applicant copies of several letters from the Ukrainian Prosecutor General’s Office (‘the PGO’) concerning the criminal proceedings brought against him, on which the Council was basing the proposed extension.
36On 5 March 2020, the Council adopted Decision (CFSP) 2020/373 amending Decision 2014/119 (OJ 2020 L 71, p. 10) and Implementing Regulation (EU) 2020/370 implementing Regulation No 208/2014 (OJ 2020 L 71, p. 1) (together, ‘the contested acts’).
37By the contested acts, the application of the restrictive measures at issue was extended until 6 March 2021 and the applicant’s name was maintained on the list, with the same statement of reasons as that set out in paragraph 16 above, along with a clarification worded as follows:‘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 Klymenko were respected in the criminal proceedings on which the Council relied. That is demonstrated, in particular, by the decisions of the investigating judge of 1 March 2017 and 5 October 2018 granting permission for a special investigation in absentia, the decisions of the investigating judge of 8 February 2017 and 19 August 2019 granting a preventive measure in the form of detention in custody, and the ongoing process of familiarisation with the materials of the criminal proceedings by the defence.’
38By letter of 6 March 2020, the Council informed the applicant that the restrictive measures against him were being maintained. It replied to the observations which the applicant had set out in previous correspondence of 23 January 2020 and sent him 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
39By judgment of 25 June 2020, Klymenko v Council (T‑295/19, EU:T:2020:287), the General Court annulled the March 2019 acts in so far as they concerned the applicant.
Procedure and forms of order sought
40By application lodged at the Court Registry on 4 May 2020, the applicant brought the present action.
41On 17 July 2020, the Council lodged its defence.
42By letter of 29 July 2020, the applicant was invited, pursuant to Article 83(3) of the Rules of Procedure, to produce a reply to the Council’s arguments relating to the second plea, alleging, inter alia, an error of assessment, taking account of the assessment made by the General Court in the judgment of 25 June 2020, Klymenko v Council (T‑295/19, EU:T:2020:287).
43The reply was lodged at the Court Registry on 3 September 2020.
44The rejoinder was lodged at the Court Registry on 9 October 2020. The written part of the procedure was closed on that date.
45Under Article 106(3) of the Rules of Procedure, if no request for a hearing has been submitted by the parties within three weeks of service of notification of the conclusion of the written procedure, the Court may decide to rule on the action without an oral procedure. In the present case, since the Court considers that it has sufficient information available to it from the material in the file, it has decided, in the absence of such a request, to give a decision on the action without an oral procedure.
46The applicant claims that the Court should:– annul the contested acts, in so far as they concern him;– order the Council to pay the costs.
47The Council contends that the Court should:– dismiss the action;– in the alternative, should the contested acts be annulled as regards the applicant, order that the effects of Decision 2020/373 be maintained until the partial annulment of Implementing Regulation 2020/370 takes effect;– order the applicant to pay the costs.
Law
48In support of his action for annulment, the applicant puts forward five pleas in law alleging, first, infringement of the duty to state reasons, second, a manifest error of assessment and misuse of powers, third, infringement of the rights of defence and of the right to effective judicial protection, fourth, lack of a legal basis, and fifth, infringement of the right to property.
49First of all, it is appropriate to examine the second and third pleas together, in so far as they allege, inter alia, that the Council failed to verify that the Ukrainian authorities had observed the applicant’s rights of defence and his right to effective judicial protection and that, as a result, the Council made an error of assessment on adopting the contested acts.
50In the context of those pleas in law, the applicant submits, inter alia, that the Council failed to ascertain whether the criminal proceedings against him and bearing, respectively, reference numbers 42017000000000113 (‘Case 113’) and 42014000000000521 (‘Case 521’), on which it relied when deciding to maintain the restrictive measures against him, were taken in compliance with his rights of defence and right to effective judicial protection.
51According to the applicant, the PGO’s replies to the questions put by the Council concerning respect for his rights of defence and right to effective judicial protection, the state of the criminal proceedings concerning him, and the competence of the various investigating authorities concerned, the relations between them and the transfer of investigations from one to the other, were unsatisfactory. Therefore, in essence, he criticises the Council for having carried out insufficient checks and for having disregarded the evidence which it provided to him concerning the procedural irregularities committed by the Ukrainian authorities and their lack of independence.
52Firstly, the applicant submits that, on 20 June 2019, his name was not on the list of internationally wanted persons drawn up by the International Criminal Police Organisation (Interpol) (the ‘Interpol wanted list’), as is apparent from the certificates issued by the Secretariat of the Commission for the Control of Interpol’s Files.
53Second, the applicant complains that the Council failed to carry out any assessment as to whether his rights of defence and right to effective judicial protection had been respected with regard to the transfer of the preliminary investigations, which had already been closed, to the National Anti-Corruption Bureau of Ukraine, more than six years after they had been opened.
54Thirdly, the applicant submits that the decision of the investigating judge of the Pechersk District Court (Kiev) (‘the Pechersk District Court’) of 5 October 2018 (‘the decision of the investigating judge of 5 October 2018’), authorising the opening of a special investigation against him in absentia, was not adopted in compliance with his rights of defence and right to effective judicial protection.
55Fourth, the applicant considers that the duration of the proceedings brought against him in Ukraine is unreasonable, within the meaning of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and that it is clear that the sole aim pursued by the Ukrainian authorities is to justify the maintenance of the restrictive measures at issue, given that almost every year the PGO refers to a different procedure, numbered differently, but systematically targeting the same infringements. Furthermore, the excessive length of the preliminary investigations are only attributable to the authorities in charge of the preliminary investigations, which have not taken any decision to refer the case to a court.
56In short, the Council has failed to fulfil its obligations to ascertain whether the applicant’s rights of defence and right to effective judicial protection had been respected, despite the fact that the applicant has repeatedly complained that those rights have been infringed.
57In his reply, the applicant further submits that, by its judgment of 13 May 2020, the Appeals Chamber of the Ukrainian High Anti-Corruption Court (‘the ‘judgment of 13 May 2020’) set aside the decision of the investigating judge of 19 August 2019 approving a preventive detention measure against him (the ‘decision of the investigating judge of 19 August 2019’), on the ground that one of the conditions laid down in the Ukrainian Code of Criminal Procedure (‘Code of Criminal Procedure’) for the adoption of such a decision had not been met, which is that the name of the person concerned has been entered on an international list of wanted persons.
58The Council submits that it is clear from the correspondence with the applicant that it took account of his observations, verified their validity, also by asking specific questions and obtaining clarifications from the Ukrainian authorities and that, in the light of the information received from them, the Council considered that the applicant’s rights of defence and right to effective judicial protection had not been infringed, and that there were sufficient grounds for maintaining his name on the list.
59For the rest, first, the applicant exercised his right to be represented by a lawyer in Ukraine in the proceedings against him and exercised those rights effectively, so much so that he was sometimes successful in his actions. Second, it is not clear from the letters that the applicant sent to the Council whether he availed himself of the means of legal challenge available to him under the Code of Criminal Procedure in certain procedural situations, such as where an investigation is suspended or where such investigation is not concluded within the prescribed period.
60The Council also notes that a number of court decisions have been delivered with regard to the applicant. Those were the decisions of the investigating judge of 1 March 2017 and 5 October 2018 authorising the opening of a special investigation in absentia, in Cases 113 and 521, and the decision of the investigating judge of 19 August 2019 approving a preventive detention measure in Case 113. With regard to the latter, the investigating judge found that the notice of suspicion had been validly served in 2014 and that the applicant’s name had been included on the international list of wanted persons on 10 June 2019. In that respect, the Council considers that the certificates of non-inclusion on the list of persons wanted by Interpol produced by the applicant are not conclusive, as they were issued after the date on which it was indicated that the applicant’s name did not appear on that list, namely 10 October 2018.
61Ultimately, the Council considers that it was able to verify that a certain number of decisions taken during the conducting of criminal proceedings had been adopted in accordance with the applicant’s rights of defence and right to effective judicial protection.
62As regards the applicant’s arguments concerning the excessive length of the investigations, and the fact that he has not been charged, the Council observes that it requested and obtained clarifications on the matter from the Ukrainian authorities; that the investigations in Cases 113 and 521 were closed in 2017 and October 2018 respectively; and that the defendant’s representatives are familiarising themselves with the case file, which shows that the proceedings are progressing.
63Finally, with regard to the judgment of 13 May 2020, the Council argues that that judgment cannot be taken into account in assessing the legality of the contested acts, as it was delivered after their adoption. Further, and in any event, that judgment relates only to Case 113 and it confirms that the applicant was able to exercise his rights.
64According to settled case-law, 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 Union acts in the light of the fundamental rights forming an integral part of the EU legal order, which include, inter alia, the right to effective judicial protection and the rights of defence, as enshrined in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 59 and the case-law cited).
65The 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 the 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 whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated (see, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 60 and the case-law cited).
66The adoption and the maintenance of restrictive measures, such as those laid down in Decision 2014/119 and Regulation No 208/2014, as amended, taken against a person who has been identified as responsible for the misappropriation of funds of a third State are based, in essence, on the decision of an authority of that State, which was competent to make it, to initiate and conduct criminal investigation proceedings concerning that person and relating to an offence of misappropriation of public funds (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 61 and the case-law cited).
67In addition, while, under the listing criterion, such as that referred to in paragraph 13 above, the Council can base restrictive measures on the decision of a third State, the obligation on that institution to observe the rights of defence and the right to effective judicial protection means that it must satisfy itself that those rights were observed by the authorities of the third State which adopted that decision (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 62 and the case-law cited).
68The requirement for the Council to verify that the decisions of third States on which it intends to rely have been taken in accordance with those rights is designed to ensure that the adoption or the maintenance of measures for the freezing of funds occurs only on a sufficiently solid factual basis and, accordingly, to protect the persons or entities concerned. Thus, the Council cannot conclude that the adoption or the maintenance of such measures rests on a sufficiently solid factual basis before having itself verified whether the rights of defence and the right to effective judicial protection were observed at the time of the adoption of the decision by the third State in question on which it intends to rely (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 63 and the case-law cited).
69Moreover, although it is true that the fact that a third State is among the States which have acceded to the ECHR entails review, by the European Court of Human Rights (‘the ECtHR’), of the fundamental rights guaranteed by the ECHR, which, in accordance with Article 6(3) TEU, form part of EU law as general principles, that fact cannot render superfluous the verification requirement referred to in paragraph 68 above (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 64 and the case-law cited).
70According to the case-law, the Council must refer, if only briefly, in the statement of reasons relating to the adoption or the maintenance of restrictive measures against a person or entity, to the reasons why it considers the decision of the third State on which it intends to rely has been adopted in accordance with the rights of defence and the right to effective judicial protection. Thus, it is for the Council, in order to fulfil its obligation to state reasons, to show, in the decision imposing the restrictive measures, that it has verified that the decision of the third State on which those measures are based was taken in accordance with those rights (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 65 and the case-law cited).
71Ultimately, when it bases the adoption or the maintenance of restrictive measures, such as those in the present case, on the decision of a third State to initiate and conduct criminal proceedings for misappropriation of public funds or assets by the person concerned, the Council must, first, ensure that, at the time of the adoption of that decision, the authorities of that third State have complied with the rights of defence and the right to effective judicial protection of the person against whom the criminal proceedings at issue have been brought and, second, refer, in the decision imposing restrictive measures, to the reasons why it considers that that decision of the third State was adopted in accordance with those rights (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 66).
72It is in the light of those case-law principles that it is necessary to determine whether the Council complied with those obligations.
73As a preliminary point, it must be noted that, although the Council set out in the contested acts (see paragraph 37 above) why it considered that the decision of the Ukrainian authorities to initiate and conduct criminal proceedings against the applicant for the misappropriation of public funds or assets was adopted in accordance with the rights of defence and the right to effective judicial protection, it is nevertheless necessary to verify whether the Council was correct in its view that those authorities observed the applicant’s rights in the proceedings on which the contested acts are based.
74The examination of the merits of the statement of reasons, which concerns the substantive legality of the contested acts and consists, in the present case, in ascertaining whether the evidence relied on by the Council has been established and whether it is capable of demonstrating that the observance of those rights by the Ukrainian authorities has been verified, must be distinguished from the question of the statement of reasons, which concerns an essential procedural requirement and is merely a corollary of the Council’s obligation to ensure in advance that those rights are observed (see judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 69 and the case-law cited).
75The applicant was made the subject of new restrictive measures adopted by means of the contested acts on the basis of the listing criterion set out in Article 1(1) of Decision 2014/119, as stated in Decision 2015/143, and in Article 3 of Regulation No 208/2014, as stated in Regulation 2015/138 (see paragraphs 13 and 14 above). That criterion provides for the freezing of funds of persons who have been identified as responsible for the misappropriation of public funds belonging to the Ukrainian State, including persons subject to investigation by the Ukrainian authorities.
76It must be observed that the Council, in deciding to maintain the applicant’s name on the list, relied on the fact that he was subject to criminal proceedings brought by the Ukrainian authorities for offences concerning the misappropriation of public funds or assets and connected with an abuse of office, evidenced by the PGO’s letters of which the applicant received copies (see paragraph 35 above).
77The maintenance of the restrictive measures taken against the applicant was therefore based, as in the cases giving rise to the judgment of 26 September 2019, Klymenko v Council (C‑11/18 P, not published, EU:C:2019:786), and the judgment of 25 June 2020, Klymenko v Council (T‑295/19, EU:T:2020:287), on the decision of the Ukrainian authorities to initiate and conduct criminal investigation proceedings concerning an offence of misappropriation of Ukrainian State funds.
78It must also be noted that when, by the contested acts, the Council amended the annex to Decision 2014/119 and Annex I to Regulation No 208/2014, it added – as it had done for the first time in the March 2019 acts – a section entirely devoted to the rights of defence and the right to effective judicial protection, which is divided into two parts.
79The first part contains a simple, general reference to the rights of defence and the right to effective judicial protection under the Code of Criminal Procedure. In particular, first of all, reference is made to the various procedural rights enjoyed by every person who is suspected or accused in criminal proceedings under Article 42 of the Code of Criminal Procedure. Next, first, it is stated that, under Article 306 of the Code of Criminal Procedure, complaints against decisions, actions or omissions of the investigator or public prosecutor must be considered by an investigating judge or a local court in the presence of the complainant or his defence lawyer or legal representative. Second, it is stated, inter alia, that Article 309 thereof specifies which decisions of investigating judges may be challenged on appeal. Lastly, it is stated that a number of procedural investigating actions, such as the seizure of property and measures of detention, are only possible subject to a ruling by the investigating judge or a court.
80The second part of the section concerns the application of the rights of defence and the right to effective judicial protection of each of the listed persons. Specifically as regards the applicant, it is stated that, according to the information in the Council’s file, his rights of defence and his right to effective judicial protection were respected in the criminal proceedings on which the Council relied, as is demonstrated in particular by the decisions of the investigating judge of 1 March 2017 and 5 October 2018, on the one hand, by the decisions of the investigating judge of 8 February 2017 and 19 August 2019, on the other, as well as by the fact that the defence was in the process of familiarising itself with the content of the criminal file (see paragraph 37 above).
81On one hand, in the letter of 6 March 2020 (see paragraph 38 above), the Council merely stated that the certificates issued by the PGO established that the applicant continued to be the subject of Cases 113 and 521 for misappropriation of public funds or assets and that they had been assigned to the National Anti-Corruption Bureau of Ukraine on 19 and 21 November 2019 respectively. On the other hand, with regard to respect for the rights of defence and the right to effective judicial protection of the applicant, the Council stated that compliance with those rights was evidenced by the court decisions referred to in paragraph 80 above. As regards, in particular, the decision of the investigating judge of 19 August 2019, given in the context of Case 113, it indicated that notices of suspicion had been served on the applicant on 22 December 2014 and 19 August 2016, that the prosecution had proved the existence of reasonable suspicion, that, on 10 June 2019, the applicant’s name had been placed on an international list of wanted persons, that it had been proved that he was hiding from the authorities conducting the preliminary investigation, and that there was sufficient reason to believe that he would continue to do so.
82Thus, it appears from a combined reading of the grounds set out in the contested acts and the letter of 6 March 2020, that although the Council explicitly attests to having verified compliance with the applicant’s rights of defence and right to effective judicial protection in the two sets of proceedings cited above in paragraph 81, it provided further details only in relation to Case 113, on the basis of which the decision of the investigating judge of 19 August 2019 was adopted.
83In that regard, it must be observed, as a preliminary point, that the Council has failed to demonstrate how all the decisions of the investigating judge of the Pechersk District Court, referred to in paragraph 80 above, which are acts of a purely procedural nature, are evidence that the applicant’s rights of defence and right to effective judicial protection in Cases 113 and 521 have been observed. As stated in paragraphs 65 to 67 above, in the present case, the Council was required, before deciding to maintain the restrictive measures at issue, to verify whether the decision of the Ukrainian judicial authorities to initiate and conduct criminal investigation proceedings in relation to offences constituting the misappropriation of public funds or assets and abuse of office by a public office-holder had been taken in accordance with those rights of the applicant (judgment of 25 June 2020, Klymenko v Conseil, T‑295/19, EU:T:2020:287, paragraph 78).
84From that perspective, those decisions cannot be identified, at least not formally, as being decisions to initiate and conduct an investigation procedure justifying the maintenance of the restrictive measures. That said, it may be accepted that, from a substantive point of view, since they were adopted by a court, at least as regards the decision of the investigating judge of 19 August 2019, which is relevant from a temporal point of view, that those decisions were actually taken into account by the Council as the factual basis justifying the maintenance of the measures at issue (see, to that effect, judgment of 25 June 2020, Klymenko v Conseil, T‑295/19, EU:T:2020:287, paragraph 79).
85It must therefore be ascertained whether the Council was right to consider that those decisions, as well as the fact that the process of familiarising the applicant’s defence with the contents of the criminal file was under way at the time the contested acts were adopted, established that the applicant’s rights of defence and right to effective judicial protection had been respected.
86As regards, first of all, the decision of the investigating judge of 19 August 2019, it should be observed that, contrary to the Council’s submissions, it is not apparent from that decision that the applicant’s rights of defence and right to effective judicial protection were respected in the present case. Although it is true, as the Council points out in its letter of 6 March 2020 (see point 81 above), that the investigating judge of the Pechersk District Court was able to conclude that, in Case 113 to which this decision relates, the applicant was a suspected person, that he was on an international list of wanted persons, that the public prosecutor had proved that he was hiding from the authorities in charge of the preliminary investigation and that there was sufficient reason to believe that he would continue to do so, the fact remains that it does not appear from the documents in the case file that the Council had in fact taken into consideration the information that the applicant had communicated to it in his letter of 23 January 2020, as well as previously in his letters of 19 December 2018 and 4 February 2019.
87The applicant had submitted, inter alia, with supporting documents, that his name was not included on the list of persons sought by Interpol and that, as a result, the investigating judge was not in a position to take certain decisions which the Council considered to be indicative of respect for the applicant’s rights of defence and right to effective judicial protection.
88In that regard, it should be observed that it does not appear from the documents in the file that the Council verified the information on which the examining magistrate relied in order to conclude that the applicant’s name was included on an ‘international list of wanted persons’. Furthermore, the Council did not explain why it had simply accepted the unsubstantiated assertions of the PGO and the investigating judge in that regard, despite the documents showing that, as at 20 June 2019, the applicant’s name did not appear on the list of persons wanted by Interpol.
89That aspect is not without importance in the assessment of whether the applicant’s rights of defence and right to effective judicial protection have been observed, in the light of Article 193-6 of the Code of Criminal Procedure, according to which, as stated in the decision of the investigating judge of 19 August 2019, the fact of inclusion on an international wanted persons list is one of the conditions which must be established by the public prosecutor when seeking the application of a preventive measure of detention in custody (see, to that effect and by analogy, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 87).
90In that decision, the investigating judge relied on the prosecutor’s resolution of 10 June 2019 to make a finding that the applicant’s name was included in such a list, without, however, indicating that that evidence came from the prosecutor. As regards the PGO, it must be held that it merely indicated, in the two tables annexed to the letter of 1 November 2019, which summarised the information on the status of Cases 113 and 521, and which was intended to explain, in particular, how the applicant’s rights of defence and right to effective judicial protection had been respected, that the ‘suspect [was] on the wanted list’.
91The argument put forward by the Council, that the certificates issued by the Secretariat of the Commission for the Control of Interpol’s Files were not conclusive cannot call those findings into question. The information from the PGO concerning the inclusion of the applicant’s name on a ‘wanted list’ did not, in any event, enable the Council to check whether the prosecutor had complied with the condition relating to such inclusion and, consequently, whether the investigating judge, when adopting his decision, had respected the applicant’s rights of defence and right to effective judicial protection (see paragraph 89 above). In those circumstances, the Council could not be satisfied with the information, either laconic or inaccurate, which was available to it and should, at the very least, have sought clarification from the Ukrainian authorities.
92Moreover, although it has no bearing on the present case, in so far as, as the Council rightly points out, the judgment of 13 May 2020 postdates the adoption of the contested acts, it must be observed, nonetheless, that it follows from that judgment, first, that the mere fact that the Prosecutor takes a procedural decision in the form of a resolution to place a person on the international list of persons sought by Interpol is not sufficient, it being also a requirement that all necessary measures are to be taken to implement such a resolution, which had in no way been proven by the prosecutor, and, second, that such an interpretation of Article 193-6 of the Code of Criminal Procedure had already been made by the same appeals chamber of the High Court for Anti-Corruption in several court decisions taken between September 2019 and February 2020.
93Next, as regards the decisions of the investigating judge of 1 March 2017, 5 October 2018 and 8 February 2017, the first two concerning the opening of a special investigation in absentia and the third concerning the approval of a preventive detention measure, it should be observed that those decisions were taken well before the adoption of the contested acts. It follows that those acts are insufficient to establish that the decision of the Ukrainian judicial authorities, on which the Council relies in order to maintain the restrictive measures at issue in respect of the applicant for the period from March 2020 to March 2021, was adopted in compliance with the applicant’s rights of defence and right to effective judicial protection. Moreover, the General Court has already had occasion to rule on both the decision of the investigating judge of 1 March 2017 and the decision of 5 October 2018 in the case giving rise to the judgment of 25 June 2020, Klymenko v Council (T‑295/19, EU:T:2020:287, paragraphs 78 to 88 and 91), which was not contested by the Council, and which held that those decisions did not establish that the applicant’s rights had been respected in the proceedings in question.
94In any event, it must also be observed that all the judicial decisions mentioned above are related to the criminal proceedings which justified the listing and maintenance of the applicant’s name on the list and are merely ancillary to those proceedings, since they are procedural in nature. Such decisions, which may at most serve to establish the existence of a sufficiently solid factual basis, namely that, in accordance with the listing criterion, the applicant was subject to criminal proceedings concerning, inter alia, an offence of misappropriation of Ukrainian State funds or assets, are not ontologically capable, in themselves, of demonstrating that the decision of the Ukrainian judicial authorities to initiate and conduct those criminal proceedings, on which the maintenance of the restrictive measures directed against the applicant was, in essence, taken in accordance with his rights of defence and his right to effective judicial protection (see, to that effect, judgment of 25 June 2020, Klymenko v Conseil, T‑295/19, EU:T:2020:287, paragraph 92).
95In any event, the Council does not refer to any document in the case file which led to the adoption of the contested acts that shows that it examined the decisions of the Ukrainian courts from which it was able to conclude that the essence of the applicant’s procedural rights had been observed.
96Finally, as regards the process of familiarising the defence with the content of the criminal file, which was still under way at the time of the adoption of the contested acts, it should be noted, first, that the PGO does not provide any information as to the nature and duration of that process and, second, that it appears from the little information provided by the PGO that that process has been under way since 21 April 2017, which is the date of closure of the preliminary investigation in Case 113 and since 3 December 2018, which is the date of closure of the preliminary investigation in Case 521.
97However, contrary to its claims, the Council has still failed to show to what extent the information available to it concerning the process of familiarisation of the defence in Cases 113 and 521 and the relevant court decisions led it to conclude that the applicant’s rights of defence and right to effective judicial protection had been respected, whereas, as the applicant argued, those proceedings, which concerned acts allegedly committed between 2011 and 2014, were still at the preliminary investigation stage and, moreover, had been transferred, already closed, to other investigating authorities in November 2019, with the result that the cases in question had not yet been submitted to a Ukrainian court with regard to the substance.
98The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess compliance with the right to effective judicial protection, provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 96 and the case-law cited).
99In so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, such as those provided for by Article 6, their meaning and scope are, under Article 52(3) of the Charter, the same as those laid down by the ECHR.
100In that regard, it must be noted that, in its interpretation of Article 6 ECHR, the ECtHR has held that the purpose of the reasonable time principle is, inter alia, to protect persons charged with a criminal offence against excessive procedural delays and to prevent them from being left in a state of uncertainty about their fate for too long, and also to prevent delays which might jeopardise the effectiveness and credibility of the administration of justice (see ECtHR, 7 July 2015, Rutkowski and Others v. Poland, CE:ECHR:2015:0707JUD007228710, § 126 and the case-law cited). Furthermore, the ECtHR has also held that infringement of that principle could be established, inter alia, where the investigation stage of criminal proceedings has been characterised by a certain number of periods of inactivity attributable to the authorities responsible for that investigation (see, to that effect, ECtHR, 6 January 2004, Rouille v. France, CE:ECHR:2004:0106JUD005026899, §§ 29 to 31; 27 September 2007, Reiner and Others v. Romania, CE:ECHR:2007:0927JUD000150502, §§ 57 to 59; and 12 January 2012, Borisenko v. Ukraine, CE:ECHR:2012:0112JUD002572502, §§ 58 to 62).
101Moreover, it is also clear from the case-law that, where a person has been the subject of restrictive measures for several years, on account, essentially, of the continuing conduct of the same preliminary investigation by the PGO or by another investigative authority, the Council is required to explore in greater detail the question of the possible infringement of that person’s fundamental rights by the Ukrainian authorities (see, to that effect, judgment of 30 January 2019, Stavytskyi v Council, T‑290/17, EU:T:2019:37, paragraph 132).
102Therefore, in the present case, the Council should, at the very least, have indicated why, despite the applicant’s arguments set out in paragraph 97 above, it considered that the applicant’s right to effective judicial protection before the Ukrainian judicial authorities, which is clearly a fundamental right, had been respected in so far as concerns the question of whether his case had been heard within a reasonable time. (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 100).
103It cannot therefore be concluded, having regard to the documents in the file, that the information available to the Council at the time of the adoption of the contested acts enabled it to verify whether the decision of the Ukrainian judicial authorities had been taken in accordance with the applicant’s right to effective judicial protection and his right to have his case heard within a reasonable period.
104Furthermore, in that regard, it must also be observed that the case-law according to which, in the event of the adoption of a decision to freeze funds, such as the decision adopted in respect of the applicant, it is not for the Council or EU judicature to verify whether or not the investigations in Ukraine to which the person concerned by those measures was subject were well founded, but only to verify whether that was the case in relation to the decision to freeze funds in the light of the document or documents on which that decision was based, cannot be interpreted as meaning that the Council is not required to verify whether the decision of the third State on which it intends to base the adoption of restrictive measures was taken in accordance with the rights of defence and the right to effective judicial protection (see, to that effect, judgment of 25 June 2020, Klymenko v Council, T‑295/19, EU:T:2020:287, paragraph 102 and the case-law cited).
105In the light of all the foregoing considerations, it has not been established that the Council, prior to the adoption of the contested acts, assured itself that the Ukrainian judicial authorities had complied with the applicant’s rights of defence and right to effective judicial protection in the criminal proceedings on which the Council relied. It follows that, in deciding to maintain the applicant’s name on the list, the Council made an error of assessment.
106In those circumstances, the contested acts must be annulled, in so far as they concern the applicant, without it being necessary to examine the other pleas in law and arguments put forward by the applicant.
Maintaining the effects of Decision 2020/373
107In the alternative, the Council asks the Court, in the event that Implementing Regulation 2020/370 is annulled in part, to declare, for reasons of legal certainty, that the effects of Decision 2020/373 be maintained until the annulment in part of Implementing Regulation 2020/370 takes effect.
108It is evident from the first paragraph of Article 60 of the Statute of the Court of Justice of the European Union that an appeal is not to have suspensory effect. The second paragraph of Article 60 provides, however, that, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period for lodging an appeal or, if an appeal is lodged within that period, as from the date of its dismissal.
109In the present case, Implementing Regulation No 2020/370 is in the nature of a regulation, since it provides that it is binding in its entirety and directly applicable in all Member States, which corresponds to the effects of a regulation as provided for in Article 288 TFEU (see, to that effect, judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 121).
110The second paragraph of Article 60 of the Statute of the Court of Justice of the European Union is therefore applicable in the present case (judgment of 21 April 2016, Council v Bank Saderat Iran, C‑200/13 P, EU:C:2016:284, paragraph 122).
111Finally, as regards the temporal effects of the annulment of Decision 2020/373, it must be recalled that, under the second paragraph of Article 264 TFEU, the Court may, if it considers it necessary, state which of the effects of the act which it has declared void are to be considered definitive.
112In the present case, a difference between the date when the annulment of Implementing Regulation 2020/370 takes effect and that of Decision 2020/373 would be liable to seriously jeopardise legal certainty, since both acts impose identical measures on the applicant (see, to that effect, judgment of 21 February 2018, Klyuyev v Council, T‑731/15, EU:T:2018:90, paragraph 263). The effects of Decision 2020/373 must therefore be maintained as regards the applicant until the annulment of Implementing Regulation No 2020/370 takes effect.
Costs
113Under 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.
Operative part
On those grounds,THE GENERAL COURT (Fifth Chamber)hereby:
1.Annuls Council Decision (CFSP) 2020/373 of 5 March 2020 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine and Council Implementing Regulation (EU) 2020/370 of 5 March 2020 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine, in so far as the name of Mr Oleksandr Viktorovych Klymenko was maintained on the list of persons, entities and bodies subject to those restrictive measures.
2.Orders the effects of Article 1 of Decision 2020/373 to be maintained in respect of Mr Klymenko until the date of expiry of the period for bringing an appeal, as provided for in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, or, if an appeal is brought within that period, until the date of dismissal of that appeal;
3.Orders the Council of the European Union to pay the costs.
Delivered in open court in Luxembourg on 3 February 2021.
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