Language of document : ECLI:EU:T:2019:502

(Joined Case T244/16 and T285/17)

Viktor Fedorovych Yanukovych

v

Council of the European Union

 Judgment of the General Court (Sixth Chamber), 11 July 2019

(Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies subject to the freezing of funds and economic resources — Maintenance of the applicant’s name on the list — Council’s obligation to verify that the decision of an authority of a third State was taken in accordance with the rights of the defence and the right to effective judicial protection)

1.      Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — General reference to documents annexed to the application — Inadmissibility

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 76(1)( d))

(see paragraphs 56, 57)

2.      European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures taken having regard to the situation in Ukraine — Freezing of funds of persons involved in the misappropriation of public funds and of natural or legal persons, bodies or organisations associated with them — Ambit of the review

(Article 275, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Decisions (CFSP) 2016/318 and 2017/381; Council Regulations 2016/311 and 2017/374)

(see paragraphs 73, 74)

3.      Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Decision to freeze funds — Adoption or maintenance on the basis of judicial proceedings conducted by the authorities of a third State in respect of the misappropriation of State funds — Lawfulness — Condition — National decision adopted in accordance with the rights of the defence and the right to effective judicial protection — Council’s verification obligation — Obligation to state reasons — Scope — Third State that has acceded to the European Convention on Human Rights — Irrelevant

(Council Decisions (CFSP) 2016/318 and 2017/381; Council Regulations No 2016/311 and No 2017/374)

(see paragraphs 75-80, 85-87, 91-95)


Résumé

In the judgments Yanukovych v Council (T‑244/16 and T‑285/17) and Klymenko v Council (T‑274/18), delivered on 11 July 2019, the General Court annulled several acts of the Council (1) concerning restrictive measures adopted in view of the situation in Ukraine which had extended the duration of the list of persons, entities and bodies to which those restrictive measures apply, (2) in that the names of the applicants — the former President and former Minister for Revenue and Duties of Ukraine — were maintained on that list. The listing had been decided on the ground that the applicants were subject to preliminary investigations in Ukraine concerning crimes in connection with the embezzlement of State funds and their illegal transfer outside Ukraine and was, subsequently, extended on the ground that the applicants were subject to criminal proceedings by the authorities of that country for misappropriation of public funds or assets.

The General Court, applying the case-law principles stemming from the judgment of 19 December 2018, Azarov v Council, (3) recalls, first of all, that, in those two cases, the Courts of the European Union must review the legality of all Union acts in the light of respect for fundamental rights. Even if the Council is able to base the adoption or maintenance of the restrictive measures on a decision of a third State, it must itself verify that such a decision has been taken in accordance with, inter alia, the rights of the defence and the right to effective judicial protection in that State. In that regard, it is stated that, even if the fact that the third State at issue has acceded to the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’) entails review, by the European Court of Human Rights (‘ECtHR’), of the fundamental rights guaranteed by the ECHR, that fact cannot render superfluous the verification requirement referred to above. Moreover, it is for the Council, in order to fulfil its obligation to state reasons, to show, in the acts 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. Moreover, the Council is required to carry out that verification irrespective of any evidence adduced by the applicants.

Next, the General Court notes that, even though the Council claims that judicial oversight had been exercised in Ukraine during the conduct of the criminal proceedings and that the existence of several judicial decisions adopted in that context shows that it was able to verify respect for the rights in question, such decisions are not capable, alone, of demonstrating that the decision of the Ukrainian authorities to conduct the criminal proceedings, on which the maintenance of the restrictive measures is based, was taken in accordance with the rights of the defence and the right to effective judicial protection. All the judicial decisions mentioned by the Council fall within the scope of the criminal proceedings which justified the listing and maintenance of the applicants’ names on the list and are merely incidental in the light of those proceedings, since they are either restrictive or procedural in nature.

In the judgment Klymenko v Council (T‑274/18), the General Court notes, in particular, that the Council does not explain how the existence of those decisions makes it possible to consider that the protection of the rights at issue has been guaranteed, when the Ukrainian criminal proceedings, which were the basis of the restrictive measures at issue in 2014, were still at the pre-trial investigation stage. In that regard, the General Court refers to the ECHR (4) and the Charter of Fundamental Rights, (5) from which it follows that the principle of the right to effective judicial protection includes, inter alia, the right to be tried within a reasonable time. The General Court states that the ECtHR has already pointed out that infringement of that principle could be established, inter alia, when the investigation stage of criminal proceedings was characterised by a certain number of periods of inactivity attributable to the authorities with competence to conduct that investigation. The General Court recalls also that, where a person has been subject to restrictive measures for several years, on account of the same preliminary investigation conducted in the third State in question, the Council is required to explore in greater detail the question of a possible infringement of the fundamental rights of that person by the authorities Therefore, at the very least, the Council should have stated the reasons for which it could consider that those rights had been respected as regards the question whether the case against the applicant had been heard within a reasonable time.

Before ruling on the substance, the General Court also rejected, in that case, the plea of inadmissibility which the Council had drawn from the fact that the applicant, relying on the judgment in Azarov, had raised a new plea. In that regard, the General Court notes, in the first place, that, in the Azarov judgment, the Court, after having set aside the judgment of 7 July 2017, Azarov v Council, (6) held that the state of the proceedings allowed final judgment to be given and annulled the contested acts, finding that the obligation to state reasons, namely a ground involving a question  of public policy which, as such,  may be raised at any time, had been infringed. In the second place, the General Court observes that, in any event, the arguments drawn from the judgment in Azarov by the applicant are closely connected with certain arguments in the application and are therefore also admissible on that basis. In the third place, the General Court points out that, since the Court had reversed the case-law of the General Court in existence at the time the applicant brought his action, the Azarov judgment amounts to a matter of law capable of justifying the introduction of a new plea or complaint.


1      Here, the annulment of Council Decision (CFSP) 2016/318 of 4 March 2016 (OJ 2016 L 60, p. 76) and of Council Implementing Regulation (EU) 2016/311 of 4 March 2016 (OJ 2016 L 60, p. 1), of Council Decision (CFSP) 2017/381 of 3 March 2017 (OJ 2017 L 58, p. 34) and of Council Implementing Regulation (EU) 2017/374 of 3 March 2017 (OJ 2017 L 58, p. 1), was sought in Cases T‑244/16 and T‑285/17 and, in Case T‑274/18, that of Council Decision (CFSP) 2018/333 of 5 March 2018 (OJ 2018 L 63, p. 48) and of Council Implementing Regulation (EU) 2018/326 of 5 March 2018 (OJ 2018 L 63, p. 5) was sought.


2      Namely, the persons, entities and bodies to which Article 1 of Council Decision 2014/119/CFSP of 5 March 2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2014 L 66, p. 26), as amended by Council Decision (CFSP) 2015/143 of 29 January 2015 (OJ 2015 L 24, p. 16), and Article 2 of Council Regulation (EU) No 208/2014 of 5 March 2014 (OJ 2014 L 66, p. 1), as amended by Council Regulation (EU) 2015/138 of 29 January 2015 (OJ 2015 L 24, p. 1).


3      Judgment of the Court of Justice of 19 December 2018, Azarov v Council (C‑530/17 P, EU:C:2018:1031).


4      Article 6(1).


5      Article 47.


6      Judgment of the General Court of 7 July 2017, Azarov v Council (T‑215/15, EU:T:2017:479).