(Application no. 42454/02)
15 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Menchinskaya v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 11 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
Article 41. Participation of a prosecutor in the proceedings
“A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens...
The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge applications, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law...”
Article 282. The right to lodge appeals to the court of cassation
“Judgments of all courts in the RSFSR may be appealed against to the court of cassation by the parties and other persons who took part in the litigation.
A prosecutor or his or her deputy lodges an appeal against an unlawful or unjustified judicial decision, irrespective of whether he or she took part in the case...”
Section 1. Prosecutor’s Office of the Russian Federation
“... 3. In accordance with the procedural legislation of the Russian Federation, prosecutors shall participate in the hearing of cases by courts of law and commercial courts (hereinafter referred to as the “courts”) and shall challenge any court decisions, sentences and rulings which are contrary to the law...”
Section 35. Prosecutor’s participation in court hearings
“1. The prosecutor shall take part in court hearings in the cases provided for by the procedural legislation of the Russian Federation and other federal laws...
3. The prosecutor, in accordance with the procedural legislation of the Russian Federation, shall be entitled to make an application to the court or to enter the case at any stage of the proceedings, if the protection of civil rights and lawful interests of society or the state so requires...”
Section 36. Appealing against court decisions
“1. Prosecutors or their deputies, within the scope of their powers, shall lodge cassation or private appeals or appeals in exercise of supervisory power with higher courts, and appeals or applications for reviews or appeals in exercise of supervisory power against an unlawful or unfounded court decision, sentence or ruling with commercial courts. Prosecutor’s assistants and prosecutors of directorates or divisions may lodge appeals only in cases in the hearing of which they themselves have participated...”
“it is essential:
a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights;
b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors, with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government; and
c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system, with separate, appropriately located and effective bodies established to discharge any other functions...”
“...56...It is, of course, clear that the Russian Office of the Prosecutor General is among those Offices which does not conform to the model which the Parliamentary Assembly considered to be essential. Moreover, in respect of the Prosecutor’s predominant role in the Russian administration, which can hardly be described as limited or exceptional, the Prosecutor’s Office does not seem to conform to the tests...which are as follows:
1. In addition to the essential role played by prosecutors in the criminal justice system, some member states of the Council of Europe provide for the participation of the prosecutor in the civil and administrative sectors for historical, efficiency and economic reasons but their role should always be exceptional (principle of exceptionality).
2. The role of the prosecutor in civil and administrative procedures should not be predominant; the intervention of the prosecutor can only be accepted when the objective of this procedure cannot, or hardly be ensured otherwise (principle of subsidiarity).
3. The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well-founded, recognisable aim (principle of speciality).
4. States can entitle prosecutors to defend the interest of the state (principle of protection of state interest).
5. Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality (principle of legality).
6. In case it is required for reasons of public interest and/or the legality of decisions (e.g. in cases of protection of the environment, insolvency etc.) the participation of the prosecutor can be justified (principle of public interest).
7. Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor (principle of protection of human rights)...
14. Prosecutors should have no decision-making powers outside the criminal field or be given more rights than other parties before courts (principle of equality of arms).
15. Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well-grounded reasons (principle of non-discrimination)...
73. There have been undoubted reforms in the Russian system of Procuracy, notably the limitations on the prosecutor’s powers of supervisory review of court decisions... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned”.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. Arguments by the parties
2. The Court’s assessment
1. Arguments by the parties
2. The Court’s assessment
34. To address this issue the Court will use the opinion of the European Commission for Democracy through Law or “Venice Commission” (see paragraph 21) as it did in a number of judgments (see, among other authorities, Russian Conservative Party of Entrepreneurs and Others v. Russia, nos. 55066/00 and 55638/00, §§ 70-73, ECHR 2007 ...; Basque Nationalist Party – Iparralde Regional Organisation v. France, no. 71251/01, §§ 45-52, 7 June 2007, ECHR 2007 ...; and Çiloğlu and Others v. Turkey, no. 73333/01, § 17, 6 March 2007). The Court emphasises that it has often used for the purpose of interpreting the scope of the rights and freedoms guaranteed by the Convention intrinsically non-binding instruments of Council of Europe organs to support its reasoning by reference to norms emanating from these organs (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 74-75, 12 November 2008). It therefore proposes to examine whether in the present case the acts of the Prosecutor’s Office were compatible with proposed European standards for the Public Prosecutor’s office functioning in a State governed by the rule of law (see paragraph 20 above).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage plus any tax that may be chargeable on that amount; and
(ii) EUR 250 (two hundred and fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on that amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis