Key facts of the case:
Common foreign and security policy — Restrictive measures taken having regard to the situation in Ukraine — Freezing of funds — List of persons, entities and bodies covered by 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.
Outcome of the case:
On those grounds, THE GENERAL COURT (Fifth Chamber) hereby:
48) More specifically, the applicant submits that the decision of the investigating judge of the Petchersk District Court of Kiev of 5 October 2018 (‘the decision of the investigating judge of 5 October 2018’) granting permission for a special investigation in absentia to be conducted with regard to him was not, contrary to the Council’s claim, adopted in accordance with the rights of the defence and the right to effective judicial protection, as enshrined, in particular, in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’) and in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). First, that decision was not amenable to appeal and, second, it was adopted in breach of the requirements of the Ukrainian Code of Criminal Procedure (‘the Code of Criminal Procedure’). The applicant emphasises that, although he informed the Council of that, the latter failed to carry out any thorough enquiry into the matter.
59) According 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 the defence, as enshrined in Articles 47 and 48 of the Charter (see judgment of 11 July 2019, Klymenko v Council, T‑274/18, EU:T:2019:509, paragraph 40 and the case-law cited; see also, to that effect, judgment of 26 September 2019, Klymenko v Council, C‑11/18 P, not published, EU:C:2019:786, paragraphs 21 and 22 and the case-law cited).
60) The effectiveness of the judicial review guaranteed by Article 47 of the Charter requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on 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 11 July 2019, Klymenko v Council, T‑274/18, EU:T:2019:509, paragraph 41 and the case-law cited).
96) The second paragraph of Article 47 of the Charter, which is the standard by reference to which the Council must assess the observance of the right to effective judicial protection, 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 11 July 2019, Klymenko v Council, T‑274/18, EU:T:2019:509, paragraph 84 and the case-law cited).
97) In 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.