Language of document : ECLI:EU:T:2021:447

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

14 July 2021 (*)

(Common foreign and security policy – Restrictive measures taken in view of the situation in Venezuela – Freezing of funds – Lists of persons, entities and bodies subject to the freezing of funds and economic resources – Inclusion of the applicant’s name on the lists – Obligation to state reasons – Rights of the defence – Principle of sound administration – Right to effective judicial protection – Error of assessment)

In Case T‑245/18,

Antonio José Benavides Torres, residing in Caracas (Venezuela), represented by L. Giuliano and F. Di Gianni, lawyers,

applicant,

v

Council of the European Union, represented by S. Kyriakopoulou, V. Piessevaux, P. Mahnič and A. Antoniadis, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU and seeking annulment, first, of Council Decision (CFSP) 2018/90 of 22 January 2018 amending Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 16 I, p. 14) and, second, of Council Implementing Regulation (EU) 2018/88 of 22 January 2018 implementing Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2018 L 16 I, p. 6), in so far as those acts concern the applicant,

THE GENERAL COURT (Seventh Chamber),

composed of R. da Silva Passos, President, I. Reine (Rapporteur) and L. Truchot, Judges,

Registrar: B. Lefebvre, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 September 2020,

gives the following

Judgment

 Background to the dispute

1        The applicant, Mr Antonio José Benavides Torres, was the Chief of the Distrito Capital (Capital District) Government of Venezuela until 3 January 2018 and General Commander of the Guardia Nacional Bolivariana (Bolivarian National Guard) until 21 June 2017.

 Implementation of the system of restrictive measures: Decision (CFSP) 2017/2074 and Regulation (EU) 2017/2063

2        On 13 November 2017, the Council of the European Union adopted Decision (CFSP) 2017/2074 concerning restrictive measures in view of the situation in Venezuela (OJ 2017 L 295, p. 60). The reason for adopting that decision, according to recital 1 thereof, was the continuing deterioration of democracy, the rule of law and human rights in Venezuela.

3        Decision 2017/2074 contains, in essence, first, a prohibition on exporting to Venezuela arms, military equipment or any other equipment that might be used for internal repression, as well as monitoring equipment, technology or software and, secondly, a prohibition on providing financial, technical or other services in relation to such goods and technologies.

4        Article 6(1) of Decision 2017/2074 provides, in addition, as follows:

‘Member States shall take the necessary measures to prevent the entry into, or transit through, their territories of:

(a)      natural persons responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela; or

(b)      natural persons whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela;

as listed in Annex I.’

5        Article 7 of Decision 2017/2074 provides:

‘1. All funds and economic resources belonging to or owned, held or controlled by:

(a)      natural or legal persons, entities or bodies responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela;

(b)      natural or legal persons, entities or bodies whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela;

as listed in Annex I, shall be frozen.

2. All funds and economic resources belonging to or owned, held or controlled by natural or legal persons, entities and bodies associated with the persons, entities or bodies referred to in paragraph 1, as listed in Annex II, shall be frozen.

3. 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 Annex I or II.

…’

6        Article 8 of Decision 2017/2074 reads as follows:

‘1. The Council, acting by unanimity upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, shall establish and amend the lists in Annexes I and II.

2. The Council shall communicate the decision referred to in paragraph 1, including the grounds for the listing, to the natural or legal person, entity or body concerned, either directly, if the address is known, or through the publication of a notice, providing such person, entity or body with an opportunity to present observations.

3. Where observations are submitted, or where substantial new evidence is presented, the Council shall review the decision referred to in paragraph 1 and inform the natural or legal person, entity or body concerned accordingly.’

7        The second paragraph of Article 13 of Decision 2017/2074 provides that the decision is to be kept under constant review and is to be renewed, or amended as appropriate, if the Council deems that its objectives have not been met.

8        On the date when Decision 2017/2074 was adopted, Annexes I and II thereto did not yet contain the name of any person or entity.

9        On the basis of Article 215 TFEU and Decision 2017/2074, on 13 November 2017, the Council adopted Regulation (EU) 2017/2063 concerning restrictive measures in view of the situation in Venezuela (OJ 2017 L 295, p. 21). Regarding the freezing of funds of the persons concerned, that regulation reproduces, in essence, the provisions of Decision 2017/2074. In particular, Annexes IV and V to the regulation correspond, respectively, to Annexes I and II to Decision 2017/2074. Pursuant to Article 17(4) of that regulation, those two annexes are to be reviewed at regular intervals and at least every 12 months.

10      On the date when Regulation 2017/2063 was adopted, Annexes IV and V thereto did not yet contain the name of any person or entity.

11      The first paragraph of Article 13 of Decision 2017/2074 provided, in its initial version, that that decision was to apply until 14 November 2018.

12      By contrast, no expiry date was specified in Regulation 2017/2063.

 Inclusion of the applicant’s name on the lists: Decision (CFSP) 2018/90 and Implementing Regulation (EU) 2018/88

13      On 22 January 2018, the Council adopted Decision (CFSP) 2018/90 amending Decision 2017/2074 (OJ 2018 L 16 I, p. 14). On the same day, the Council adopted Implementing Regulation (EU) 2018/88 implementing Regulation 2017/2063 (OJ 2018 L 16 I, p. 6). That decision and that implementing regulation (together, ‘the contested acts’) were published that day in the Official Journal of the European Union. Recital 4 of the contested acts states that ‘in view of the continuing deterioration of the situation in Venezuela, seven persons [had to] be included in the list of natural and legal persons, entities and bodies subject to restrictive measures’ in Annex I to Decision 2017/2074 and Annex IV to Regulation 2017/2063. The contested acts therefore amended those annexes. The applicant’s name was thus included in the annexes as follows: ‘4 – Name: Antonio José Benavides Torres – Identifying information: Date of birth: 13.6.1961 – Reasons: Chief of the Capital District (Distrito Capital) Government. General Commander of the Bolivarian National Guard until 21 June 2017. Involved in repression of civil society and democratic opposition in Venezuela, and responsible for serious human rights violations committed by the Bolivarian National Guard under his command. His actions and policies as General Commander of the Bolivarian National Guard, including the Bolivarian National Guard taking the lead in the policing of civilian demonstrations and publicly advocating that military courts should have jurisdiction over civilians, have undermined the rule of law in Venezuela. – Date of listing: 22.1.2018’.

14      On 23 January 2018, a notice for the attention of the persons subject to the restrictive measures provided for in Decision 2017/2074, as amended by Decision 2018/90, and in Regulation 2017/2063, as implemented by Implementing Regulation 2018/88 concerning restrictive measures in view of the situation in Venezuela was published in the Official Journal (OJ 2018 C 23, p. 4).

15      By email of 20 February 2018, the applicant’s representative asked the Council to provide access to the file containing the evidence, documents and information justifying the contested acts. The Council acknowledged receipt of that request the following day.

16      By email of 3 April 2018, the Council sent the applicant’s representative the two documents on which the contested acts were based, namely a working document dated 22 March 2018 bearing the reference WK 3501/2018 INIT and extract 4 from an annex to a document dated 27 March 2018 bearing the reference COREU CFSP/0702/17.

17      In response to a request for clarification from the applicant’s representative, the Council explained, on 6 April 2018, that documents WK 3501/2018 INIT and COREU CFSP/0702/17 actually dated from 6 December 2017, but since they had to be declassified as a result of the request for access, they bore the dates of 22 and 27 March 2018 respectively.

 Procedure and forms of order sought

18      By application lodged at the Court Registry on 16 April 2018, the applicant brought the present action.

19      The written part of the procedure was closed on 19 December 2018.

20      On 28 March 2019, the former Fourth Chamber of the General Court decided to open the oral part of the procedure, to set the date for the hearing at a later date and to put a question to the parties, for written response, by way of a measure of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court. The parties lodged their responses within the prescribed period.

21      On 3 May 2019, the parties were informed of the decision of the President of the General Court to assign the present case to the Judge-Rapporteur, pursuant to Article 27(1) of the Rules of Procedure.

22      Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, on 26 September 2019, the Judge Rapporteur was assigned to the Seventh Chamber. After the parties had been invited to express their views and in the absence of any objections on their part, the present case was reassigned to the Seventh Chamber by decision of the President of the General Court of 10 December 2019.

23      By letter of 20 December 2019, the parties were invited to submit their observations on the potential joinder of Cases T‑245/18, Benavides Torres v Council, T‑246/18, Moreno Pérez v Council, T‑247/18, Lucena Ramírez v Council, T‑248/18, Cabello Rondón v Council, T‑249/18, Saab Halabi v Council and T‑35/19, Benavides Torres v Council, for the purposes of the oral part of the procedure. The parties replied that they did not have any objections to such a joinder.

24      By decision of 28 January 2020, the President of the Seventh Chamber of the General Court decided to join those cases (‘the joined cases’) for the purposes of the oral part of the procedure. On the same day, the oral part of the procedure was opened and the date for the hearing was fixed for 23 April 2020.

25      On 7 February 2020, in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court asked the parties in the joined cases to answer questions in writing before the hearing and orally at the hearing. The parties in the joined cases replied to the questions for a written response within the prescribed period. On 13 March 2020, the Court invited them to submit observations on the other party’s replies. The parties in the joined cases submitted their observations within the prescribed period.

26      As the hearing, originally scheduled for 23 April 2020, was postponed on account of the health crisis, the parties in the joined cases presented oral argument and replied to the Court’s oral questions at the hearing on 3 September 2020.

27      The applicant claims that the Court should:

–        annul the contested acts, in so far as their provisions concern him;

–        order the Council to pay the costs.

28      The Council contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

29      In support of his action, the applicant relies on two pleas in law, alleging, first, infringement of the obligation to state reasons, of the principle of sound administration, of his rights of defence, and of his right to effective judicial protection and, second, ‘manifest errors of assessment’.

 The first plea in law, alleging infringement of the obligation to state reasons, of the principle of sound administration and of the rights of the defence and of the right to effective judicial protection

30      First, the applicant alleges, in essence, that the contested acts do not contain an adequate statement of reasons. In that regard, he submits that the grounds set out in Annex I to Decision 2017/2074 and Annex IV to Regulation 2017/2063, as amended by the contested acts, were too vague for him to be able to fully assess which specific facts the Council was referring to. Second, he submits that, despite the steps he took on 20 February 2018, the Council did not grant him access to the documents justifying the contested acts until 3 April 2018 thereafter, namely at a time when he had only 13 calendar days or 9 working days remaining to lodge his action. The applicant therefore concludes that the Council did not satisfy, within a reasonable time, his request for access to his file, and thus infringed the principle of sound administration, his rights of defence and his right to effective judicial protection.

31      The Council contests the applicant’s arguments.

 Alleged infringement of the obligation to state reasons

32      In accordance with the case-law, the obligation to state the reasons on which an act adversely affecting an individual is based, as provided for in the second paragraph of Article 296 TFEU and enshrined in Article 41(2)(c) of the Charter of Fundamental Rights of the European Union (‘the Charter’), is a corollary of the principle of respect for the rights of the defence. It should be noted, in that regard, that the specific purpose for the statement of reasons is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the Courts of the European Union and, second, to enable those Courts to review the legality of that act (see judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 29 and the case-law cited, and of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraphs 56 and 57 and the case-law cited).

33      The statement of reasons for an act adversely affecting an individual must set out the facts and the legal considerations that have decisive importance in the context of that act (see judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 30 and the case-law cited).

34      As regards restrictive measures adopted under the common foreign and security policy (CFSP), where the person concerned is not afforded the opportunity to be heard before the adoption of an initial decision to freeze funds, compliance with the obligation to state reasons is all the more important because it constitutes the sole safeguard enabling the person concerned, at least after that decision has been adopted, to make effective use of the legal remedies available to him or her in order to challenge the lawfulness of that decision (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraph 51, and of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraph 58).

35      Consequently, unless overriding considerations involving the security of the European Union and its Member States or the conduct of their international relations militate against the provision of certain information, the Council is required to advise the person or entity concerned by the restrictive measures of the actual specific reasons why it considers that those measures had to be adopted. It must thus mention the matters of fact and law on which the legal justification for the relevant measures depends and the considerations which led it to adopt those measures (judgment of 9 July 2009, Melli Bank v Council, T‑246/08 and T‑332/08, EU:T:2009:266, paragraph 144).

36      The statement of reasons must, however, be appropriate to the act at issue and the context in which it was adopted. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons is sufficient must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure that concerns him or her (judgments of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 53 and 54, and of 25 April 2013, Gossio v Council, T‑130/11, not published, EU:T:2013:217, paragraphs 45 and 46).

37      It must also be borne in mind that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see judgment of 30 January 2019, Stavytskyi v Council, T‑290/17, EU:T:2019:37, paragraph 57 and the case-law cited).

38      The present complaint must be examined in the light of those principles.

39      In the present case, as regards the reasons why the Council considered that the applicant should specifically be the subject of restrictive measures, the statement of reasons, reproduced in paragraph 13 above, which is set out in point 3 of Annex I to Decision 2017/2074 and point 3 of Annex IV to Regulation 2017/2063, as amended by the contested acts, identifies, contrary to what is claimed in essence by the applicant, the actual specific information which shows, according to the Council, that the applicant was involved in undermining democracy and the rule of law in Venezuela.

40      It should be noted that the preambles to the contested acts refer to Decision 2017/2074 and Regulation 2017/2063 respectively. In recitals 1 and 5 to 8 of Decision 2017/2074, and in recitals 1 and 2 of Regulation 2017/2063, the Council set out the general context which led it to lay down restrictive measures against Venezuela and certain Venezuelan persons or entities. It follows that that general context was characterised by the continuing deterioration of democracy, the rule of law and human rights in Venezuela, as a result of, inter alia, the use of excessive force and the repression of civil society and democratic opposition. In the light of his role as General Commander of the Bolivarian National Guard, the applicant could not have been unaware of that context.

41      Furthermore, as indicated in paragraphs 4 and 5 above, in accordance with Article 6(1) and Article 7(1) of Decision 2017/2074, the general listing criteria established by the Council are directed, first, at natural persons who ‘are responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela’ and, second, at natural persons ‘whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela’.

42      Therefore, a reading of the reasons given for the applicant’s listing makes it possible to understand that the specific and concrete reasons which led the Council to adopt restrictive measures against the applicant are based on his alleged involvement in the repression of civil society and democratic opposition in Venezuela and his alleged responsibility for serious human rights violations committed under his command by the Bolivarian National Guard, and on the alleged fact that, in carrying out his duties as General Commander of that Guard, he undermined the rule of law in Venezuela, in particular when the Bolivarian National Guard played a leading role in maintaining order during civilian demonstrations and when he publicly advocated that military courts should have jurisdiction over civilians.

43      Moreover, it should be noted that the fact that the applicant was able to understand the reasons which, according to the Council, justified the adoption of restrictive measures against him, is confirmed by the wording of the second plea in the present action. The applicant was able to identify the specific facts alleged against him and to dispute their accuracy. He was able to put forward the argument that the Council had not adduced sufficiently detailed and specific evidence in support of the contested acts. In particular, he was able to challenge the credibility and probative value of the evidence on which the Council relied. The applicant was also able to set out the legal framework defining the role and action of the Bolivarian National Guard and thus claim that the contested acts were the result of a misinterpretation of that framework, in particular as regards the use of force. Furthermore, the applicant was able to describe the factual context in which the security forces intervened during demonstrations and the context in which he made the statement put in issue regarding the possibility of trying civilians before military courts. He was also able to challenge the Council’s accusation that the Bolivarian National Guard was responsible for repressing a demonstration. Finally, the applicant was able to set out the reasons why the adoption of restrictive measures against him did not enable the contested acts to achieve their objective.

44      It follows that the statement of reasons for the contested acts enabled the applicant to understand and challenge the reasons for including his name on the lists at issue.

45      In view of the foregoing, the complaint alleging that the Council infringed its obligation to state reasons must be rejected.

 Alleged infringement of the principle of sound administration, the rights of the defence and the right to effective judicial protection

46      As a preliminary point, it must be noted that the applicant’s complaint that the Council infringed the principle of sound administration, his right to effective judicial protection and his rights of defence is not supported by arguments specific to each of those infringements, but merely refers to a common line of argument. In those circumstances, those alleged infringements must be examined together.

47      It must be recalled that respect for the rights of the defence, which is affirmed in Article 41(2)(a) of the Charter, to which the EU Treaty attaches the same legal value as the Treaties, includes, inter alia, the right to have access to the file, whereas the right to effective judicial protection, which is affirmed in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based (see, to that effect, judgment of 15 September 2016, Klyuyev v Council, T‑340/14, EU:T:2016:496, paragraph 55).

48      More specifically, the rights of the defence and the right to effective judicial protection require that the EU authority which adopts restrictive measures communicate to the person concerned the evidence on which those measures are based or grant him or her the right to be informed of that evidence within a reasonable period after those measures were enacted (see, to that effect, judgments of 21 March 2014, Yusef v Commission, T‑306/10, EU:T:2014:141, paragraph 90, and of 13 December 2016, Al-Ghabra v Commission, T‑248/13, EU:T:2016:721, paragraph 49).

49      In that regard, it must be noted that, in the case of an initial decision to freeze funds, the Council is not obliged to inform the person or entity concerned beforehand of the grounds on which that institution intends to rely in order to include that person or that entity’s name in the relevant list, in order to ensure the surprise effect necessary for the effectiveness of such a measure. In such a case, it is, as a rule, enough if the institution notifies the person or entity concerned of the grounds and affords it the right to be heard at the same time as, or immediately after, the decision is adopted (see, to that effect, judgment of 21 December 2011, France v People’s Mojahedin Organization of Iran, C‑27/09 P, EU:C:2011:853, paragraph 61).

50      In the present case, in the particular context of the initial inclusion on the lists at issue requiring a surprise effect, irrespective of whether the Council communicated its file to the applicant within a reasonable period of time, it must be determined whether the applicant was not in a position to challenge the evidence in that file before the Court (see, by analogy, judgments of 18 September 2014, Georgias and Others v Council and Commission, T‑168/12, EU:T:2014:781, paragraph 106, and of 15 June 2017, Kiselev v Council, T‑262/15, EU:T:2017:392, paragraph 153). It must be held that the applicant was put in a position to be able to challenge the evidence in that file before the Court, as is apparent from the arguments relied on in the application described in paragraph 43 above.

51      It is true that, at the hearing, the applicant stated that he could have mentioned, in the application, that, on 4 January 2018, he had ceased to hold the post of Chief of the Capital District Government. However, it must be observed, first, that it was in the grounds of the contested acts themselves that the Council referred to the duties which the applicant carried out as Chief of the Capital District Government, with the result that the applicant was in a position to put forward such an argument as soon as he became aware of those grounds. Second, the applicant was able to rely on that argument in his reply (see, by analogy, judgment of 22 April 2015, Tomana and Others v Council and Commission, T‑190/12, EU:T:2015:222, paragraphs 201 to 203).

52      Consequently, the applicant has not shown that the allegedly late communication of the Council’s file infringed his rights of defence, his right to effective judicial protection and the principle of sound administration.

53      In the light of the foregoing considerations, the present complaint and, therefore, the first plea in law in its entirety must be rejected.

 The second plea in law, alleging a lack of evidence and ‘manifest errors of assessment’

54      The applicant argues, in the first place, that the Council incorrectly assessed the body of evidence on which inclusion on the lists at issue was based. First of all, the applicant disputes the Council’s summary of an article published on the website ‘Notitotal.com’, according to which, during a demonstration held in Caracas (Venezuela) on 19 June 2017, ‘controlled by the Bolivarian National Guard’, 48 people were injured. Next, according to the applicant, the press articles gathered by the Council from the internet often refer to other sources of information, even though such ‘recycling’ of information affects the reliability of their content. Lastly, he submits that many of the press articles relied upon by the Council are biased because they were published in newspapers and on websites which support the opposition.

55      In the second place, the applicant argues that the Council did not have sufficient evidence to establish that serious and systematic human rights violations were committed due to the use of excessive force by the Bolivarian National Guard.

56      In order to assess the role of the Bolivarian National Guard and the applicant’s role, the applicant argues that it was necessary to take account of the provisions governing the Bolivarian National Guard. Thus, the Bolivarian National Guard is a constitutional body forming part of the Venezuelan armed forces. It is responsible, inter alia, for conducting operations as required to maintain order within the country. In addition, the legislation applicable to the Bolivarian National Guard provides for progressive degrees for the use of force depending on the level of resistance and opposition and governs, inter alia, the use of tear gas and firearms. The Venezuelan legal framework on the functioning of the Bolivarian National Guard is thus in line with the ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana (Cuba) from 27 August to 7 September 1990.

57      Furthermore, the Council should also have taken account of the fact that, from the beginning of 2016, the then President of Venezuela had declared a state of emergency and that, given the severe social crisis in which Venezuela was immersed in 2017, the President, on 13 May 2017, also declared a state of exception covering the whole of the Venezuelan territory.

58      According to the applicant, under his command, the Bolivarian National Guard never received the order to intervene with the use of force or with firearms. It used only rubber bullets and tear gas and thus acted within the competences conferred on it by the legislation on the control and maintenance of public order.

59      In the third place, the applicant claims that his statements should have been assessed in the context in which they were made, that is, in the light of the turbulent political, social and economic situation in Venezuela. He refers in that regard to his statement in the video published on the website ‘Notimpacto.com’.

60      Furthermore, he argues that it should be noted that military criminal courts are part of the judiciary and that, under the Military Code of 17 September 1998, military courts have jurisdiction over civilians in cases, inter alia, of rebellion. However, the Bolivarian National Guard has no power to decide whether an accused person must appear before a civil or military court.

61      In the fourth place, and in any event, the applicant argues that he left his position with the Bolivarian National Guard and was relieved of his duties as Chief of the Capital District Government before the contested acts were adopted. The applicant submits that therefore, since he no longer carried out any public role, the contested acts could not achieve the aim pursued by the Council.

62      The Council contests the applicant’s arguments.

63      It should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, inter alia, that the Courts of the European Union are to ensure that the decision, which affects the person or entity concerned 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 of whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775,paragraph 64).

64      To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120, and the case-law cited; judgment of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 65).

65      That is because it is the task of the competent European Union 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 (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66).

66      For that purpose, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act sought to be annulled. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 122, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 67).

67      So far as concerns the types of evidence which may be relied on, the prevailing principle of EU law is the unfettered evaluation of the evidence available (judgment of 6 September 2013, Persia International Bank v Council, T‑493/10, EU:T:2013:398, paragraph 95 (not published)). In that regard, it is important to recall that, in the absence of investigative powers in third countries, the assessment of the EU authorities must rely on publicly available sources of information, reports, articles in the press or other similar sources of information (see, to that effect, judgment of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 107). It is clear from the case-law that, inter alia, in some situations, the Courts of the European Union may take into account reports from international organisations (see, to that effect, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 48).

68      Moreover, according to settled case-law, having regard to the preventive nature of the restrictive measures adopted by the Council, if, in the course of their review of the lawfulness of the contested acts, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in those acts in respect of a person on whom those measures are imposed is sufficiently detailed and specific, that it is substantiated and that it constitutes a sufficient basis in itself to support the decision to include or retain the name of the persons on the lists annexed to those acts, the fact that the same cannot be said of other such reasons cannot justify the annulment of those acts (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 130; of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72; and of 26 March 2019, Boshab and Others v Council, T‑582/17, not published, EU:T:2019:193, paragraph 221).

69      It is in the light of those principles that it is necessary to examine whether the grounds for including the applicant on the lists at issue are vitiated by errors of assessment.

70      As set out in paragraphs 4 and 5 above, in accordance with Article 6(1) and Article 7(1) of Decision 2017/2074, the general criteria established by the Council for inclusion on the lists cover, first, natural persons who are ‘responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela’ and, second, natural persons ‘whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela’.

71      In that regard, it should be borne in mind that, as regards the general context in Venezuela, it is apparent from recitals 1 and 5 to 8 of Decision 2017/2074 and recitals 1 and 2 of Regulation 2017/2063 that the contested acts were adopted on account of the continuing deterioration of democracy, the rule of law and human rights in Venezuela, as a result of, inter alia, the use of excessive force, and the repression of civil society and democratic opposition. Recital 5 of Decision 2017/2074 states that, on 26 July 2017, the European Union expressed concern at the numerous reports of human rights violations and the use of excessive force, and called on the Venezuelan authorities to respect the Venezuelan Constitution and the rule of law and to ensure that fundamental rights and freedoms, including the right to peaceful demonstration, are guaranteed.

72      That general context of the situation in Venezuela was also referred to by the Council before the Court, without it being disputed by the applicant. The Council thus recalled that, after December 2015, following elections to the National Assembly, a coalition of opposition parties had won the majority of the seats. In January 2016, the then President of Venezuela declared a state of emergency and ruled by decree. By April 2017, demonstrations had taken place almost daily for several months, which resulted in the death and injury of many civilians and thousands of arrests. In May 2017, the then President of Venezuela announced the creation of a Constituent Assembly the members of which were elected on 30 July 2017 following an electoral process boycotted by the opposition.

73      In the present case, the Council considered that the applicant was involved in the repression of Venezuelan civil society and democratic opposition, that he was responsible for serious human rights violations committed under his command by the Bolivarian National Guard, and that his actions and policies as General Commander of the Bolivarian National Guard, in particular where it played a leading role in the maintenance of the order during civil demonstrations and when he publicly advocated the jurisdiction of military courts over civilians, undermined the rule of law in Venezuela.

74      In that regard, in its file, the Council relied, inter alia, on the following evidence:

–        An article of 29 June 2017, published on the website ‘www.efectococuyo.com’ entitled ‘The Prosecutor General’s Office summons Benavides Torres for [human rights] violations during demonstrations’;

–        An article of 30 June 2017, published on the website ‘https://konzapata.com’ entitled ‘The case and double charge against General Antonio Benavides Torres’;

–        An article of 20 June 2017, published on the website ‘http://notitotal.com’ entitled ‘At least 48 injured in the repression of demonstrators in Caracas’;

–        An article of 19 June 2017, published on the website ‘http://eltubazo.com.ve’ entitled ‘The National Guard fires at demonstrators in Altamira’;

–        The report of the Office of the UN High Commissioner for Human Rights (HCHR) of 30 August 2017;

–        The declaration of the Secretary General of the Organization of American States (OAS) of 16 May 2017.

75      In that regard, as the Council states, it is apparent from the HCHR report of 30 August 2017 that, from April to July 2017, the Venezuelan security forces used firearms loaded with buckshot, marbles and metal rod pieces in the repression of demonstrations, that at least 14 demonstrators were killed by those types of ammunition and that, during those demonstrations, the Bolivarian National Guard was the only security force present.

76      In addition, as the Council submits, the Secretary General of the OAS, in his Declaration of 16 May 2017 on Venezuela, stated that the applicant and the Minister for the Interior led the two institutions accused of having used force in Venezuela and that, in that sense, they were responsible for every aggression, every shot and every death.

77      Furthermore, three press articles in the Council’s file also refer to the use of excessive force in the repression of demonstrations in 2017. First, it is apparent from the article of 29 June 2017, published on the website ‘www.efectococuyo.com’, that the Prosecutor General’s Office issued the applicant with a summons for alleged serious and systematic human rights violations during the 2017 demonstrations in Venezuela through the use of excessive force in the repression of demonstrations.

78      Second, the article of 19 June 2017, published on the website ‘http://eltubazo.com.ve’, refers to the use of firearms by the Bolivarian National Guard to repress a demonstration held on the same day in the Altamira district in Caracas. That article reproduces tweets by the Venezuelan Minister for the Interior, bearing the same date, from which it is apparent that, although he condemned the violence of protesters, he nevertheless acknowledged that, during the demonstration in question, several people had been injured and one person killed by a firearm. He also stated that an investigation had been opened for undue and disproportionate use of force.

79      Third, the article of 20 June 2017, published on the website ‘http://notitotal.com’, refers to 48 people injured at a demonstration on Monday 19 June 2017 in Caracas. It is also apparent from the article in question that the spokespersons for the health centres which received the injured indicated that they had traumas and multiple injuries caused by rubber bullets and that some of them were intoxicated with tear gas. It is true that, as the applicant states, the article of 20 June 2017, published on the website ‘http://notitotal.com’, refers generally to ‘security forces’ and does not explicitly mention the Bolivarian National Guard. However, two elements in the Council’s file make it possible to infer that the reference to ‘security forces’ concerned the Bolivarian National Guard. First, the article published on the website ‘eltubazo.com’, cited in paragraph 78 above, makes clear reference to the involvement of the Bolivarian National Guard in the repression of the demonstration of 19 June 2017. Second, in the article published on the website ‘konzapata.com’ of 30 June 2017 concerning the applicant, reference is made to the use of real bullets against demonstrators on 19 June 2017 and to the subsequent removal of the applicant, the following day, from his duties as Commander of the Bolivarian National Guard.

80      Furthermore, as the applicant states, it is true that the article of 29 June 2017, published on the website ‘www.efectococuyo.com’, and the article of 19 June 2017, published on the website ‘http://eltubazo.com.ve’, refer to other sources of information, namely a press release from the Prosecutor General’s Office and tweets by the Venezuelan Minister for the Interior, respectively.

81      However, it must be noted that, in accordance with settled case-law, the activity of the Court of Justice and of the General Court is governed by the principle of the unfettered evaluation of evidence, and that it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value. Furthermore, in order to assess the probative value of a document, regard should be had to the credibility of the account it contains and, in particular, to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see judgment of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraph 85 and the case-law cited).

82      In the present case, it should be noted that the press articles referring to other sources of information, mentioned in paragraph 80 above, originate from two different digital sources of information. Moreover, they were published on different dates. In addition, each digital source of information provides different information, despite the fact that all those sources agree, in essence, as to the excessive nature of the use of force by the Bolivarian National Guard acting under the applicant’s authority.

83      The applicant also claims that many press articles relied on by the Council were published in newspapers and on websites supporting the opposition and that they are therefore biased. However, it must be noted that he does not expressly dispute the lack of impartiality of the evidence submitted by the Council concerning the use of excessive force, referred to in paragraphs 75 to 79 above. In any event, that argument of the applicant must be rejected. The applicant has failed to demonstrate that the evidence referred to in paragraphs 75 to 79 above relay incorrect information, with the result that, even if the author had issued a subjective opinion on the facts which he or she set out in that evidence, that does not mean that they have presented those facts untruthfully.

84      As regards the applicant’s arguments alleging that the Council failed to take into account all the relevant factors relating to the use of force, the applicant claims, first of all, that, in order to assess the role of the Bolivarian National Guard under his command, the Council should have taken into account the provisions governing the Bolivarian National Guard, in particular as regards the use of force. He submits, in that regard, that those provisions comply with the relevant international standards, in particular in that they enshrine the principle of the progressive use of force according to the level of resistance and opposition by citizens.

85      However, it is apparent from the file (see paragraphs 75 to 79 above) that the Council did not rely on the provisions regulating the activities of the Bolivarian National Guard, but merely stated that, under the applicant’s command, the Bolivarian National Guard made use, in practice, of excessive force to contain demonstrations organised between 1 April and 20 June 2017.

86      Next, the applicant claims that the Council should have taken into account the fact that, from the beginning of 2016, the then President of Venezuela declared a state of emergency and the fact that, because of the serious social crisis in which Venezuela found itself in 2017, the then President of Venezuela also declared, on 13 May 2017, a state of exception applying to the whole of the Venezuelan territory, in order to preserve internal public order. The applicant also claims that the Council should have taken into consideration the fact that the demonstrations in April and May 2017 had not been authorised. The applicant also submits that the Council should have taken account of the violence of the demonstrators themselves. The applicant refers in particular, in that regard, to the video mentioned in the article of 20 June 2017, published on the website ‘http://notitotal.com’, which shows armed rioters whose violence explains the reaction of the security forces.

87      However, the fact that the then President of Venezuela had declared a state of emergency and that the demonstrations in April and May 2017 had not been authorised cannot justify the fact that the Bolivarian National Guard brutalised unarmed people and fired tear gas, rubber bullets and even real bullets which, according to HCHR, led to the death of 14 demonstrators. Use of excessive force undermines human dignity and constitutes, in principle, a violation of fundamental rights. Even taking into consideration the video in question, as well as other documents in the file revealing the presence of troublemakers among the protesters, the applicant has not established that the demonstrations in question were so aggressive that they could have been controlled only through the use of tear gas, rubber bullets and even real bullets, which caused the death of several demonstrators and injured hundreds of people.

88      In the light of the foregoing, the Council was entitled, without making an error of assessment, to consider that the Bolivarian National Guard, under the applicant’s command, made use of excessive force when maintaining order during civil demonstrations. Accordingly, the Council also did not make an error of assessment in finding that, in the light of the general context of the situation in Venezuela, as described in paragraph 72 above, the applicant had been involved in the repression of Venezuelan civil society and democratic opposition and that he was responsible for serious human rights violations under his command by the Bolivarian National Guard, without it being necessary to examine, in accordance with the case-law cited in paragraph 68 above, the relevance and probative value of the other elements relied on by the Council.

89      That conclusion cannot be called into question by the applicant’s arguments that, when the contested acts were adopted, he no longer held any official position. More specifically, the applicant submits that he ceased to hold the position of Chief of the Capital District Government on 4 January 2018.

90      It is not apparent from the file, nor is it claimed by the applicant, who was specifically questioned on that point at the hearing, that the termination of his various public offices was a decision which he himself took, in response to the infringements of the rule of law and democracy in Venezuela, in order to distance himself from such infringements (see, by analogy, judgments of 26 March 2019, Boshab and Others v Council, T‑582/17, not published, EU:T:2019:193, paragraph 152, and of 12 February 2020, Kande Mupompa v Council, T‑170/18, EU:T:2020:60, paragraph 131 (not published)). Moreover, account must be taken of the very short period of time which elapsed between, on the one hand, the date of 4 January 2018 when the applicant ceased to hold office as Chief of the Capital District Government and, on the other hand, the date of 22 January 2018 when his name was first included on the lists at issue. In those circumstances, the Council could legitimately take the view that the applicant remained associated with the regime which was in power in Venezuela since, during his duties as Commander of the Bolivarian National Guard, he undermined democracy and the rule of law in Venezuela.

91      The foregoing considerations cannot be regarded as involving the creation of a presumption or a reversal in the burden of proof to the detriment of the applicant, contrary to the applicant’s submission. Their significance is simply that the reference, in the grounds of the contested acts, to posts formerly occupied by the applicant, discloses that the Council considered that, for that reason, the applicant remained associated with the regime in power in Venezuela and that the Council was not aware of anything to call that consideration into question (see, by analogy, judgment of 22 April 2015, Tomana and Others v Council and Commission, T‑190/12, EU:T:2015:222, paragraph 167).

92      Consequently, the second plea in law must be rejected and, therefore, the action must be dismissed in its entirety.

 Costs

93      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 applicant has been unsuccessful, he must be ordered to pay the costs in accordance with the form of order sought by the Council.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Antonio José Benavides Torres to pay the costs.

da Silva Passos

Reine

Truchot

Delivered in open court in Luxembourg on 14 July 2021.

E. Coulon

 

S. Papasavvas

Registrar

 

President


*      Language of the case: English.