(Application no. 3932/02)
26 May 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 Batsanina v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 5 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Civil proceedings
B. Criminal proceedings against the applicant
II. RELEVANT DOMESTIC LAW
A. Legislation on the role of prosecutors in court proceedings
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...”
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...”
B. Summonses and storage periods
“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”.
“22. Court actions – irrespective of the procedural rules governing them (rules of civil proceedings or special administrative law rules) – are bound to court proceedings: prosecutors act as parties therein. Prosecution services did not report any special powers or authority when prosecutors take part in civil court proceedings as petitioners, they have the same powers as other parties. Their position is not exclusive, the proceedings may be started by other interested persons as well. In such cases prosecutors have definitely no decision-making powers regarding the merit of cases, their decisions concern only initiation of a case: submitting a petition to the civil law court.
23. Almost in all countries where prosecutors have competences in the non criminal field, prosecutors are empowered to launch new court-actions, to use ordinary and extraordinary remedies (appeals) as parties of proceedings. However some rules could be identified (prohibition of extraordinary appeal or proposal for reopening of proceedings; prohibition of settlement in the name of the party)...
25. The aims of non penal activities of prosecutors, irrespective of their substantive or procedural differences, are much more concordant: ensuring rule of law (integrity of democratic decisions, legality, observance of law, remedy against violation of law), protection of rights and liberties of persons (mostly of those incapable to protect their rights – minors, persons with unknown domicile, mentally incapables), protection of assets and interests of State, protection of public interest (or of public order), harmonisation of jurisdiction of courts (special remedies against final court decisions in the best interest of law, action as parties in such proceedings of the highest court levels)...
27. ...[T]he CCPE is aware of occasional improper practice of public prosecutors acting outside the field of criminal justice assessed by the Court or by certain Constitutional Courts or criticised by other bodies of the Council of Europe. The most disconcerting events were in connection with rejection without reason of requests to start civil law court actions; intervention in court proceedings without reasonable interest (of State, of public interest or based on protection of rights) violating the principle of equality of arms; quashing of final judgment of courts violating the principle of legal certainty (res judicata) ; participation of prosecutors in panels of supreme courts confusing the decision-making role of judges with prosecutors tasks; unlimited right to start litigation.
28. The contribution of prosecutors to the consolidation of the case-law of the courts is a fact in many member States. The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision-taking process by judges.”
The Opinion referred to the following principles applicable in the relevant field:
“a. the principle of separation of powers should be respected in connection with the prosecutors' tasks and activities outside the criminal law field and the role of courts to protect human rights;
b. the respect of impartiality and fairness should characterise the action of prosecutors acting outside the criminal law field as well;
c. these functions are carried out “on behalf of society and in the public interest”, to ensure the application of law while respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court;
d. such competencies of prosecutors should be regulated by law as precisely as possible;
e. there should be no undue intervention in the activities of prosecution services;
f. when acting outside the criminal law field, prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings (equality of arms);
g. the action of prosecution services on behalf of society to defend public interest in non criminal matters must not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court;
h. the obligation of prosecutors to reason their actions and to make these reasons open for persons or institutions involved or interested in the case should be prescribed by law;
i. the right of persons or institutions, involved or interested in the civil law cases to claim against measure or default of prosecutors should be assured;
j. the developments in the case-law of the Court concerning prosecution services' activities outside the criminal law field should be closely followed in order to ensure that legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments...”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE PRINCIPLE OF EQUALITY OF ARMS
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE HEARING ON 16 AUGUST 2001
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. 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
(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, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, and EUR 30 (thirty euros) in respect of costs and expenses, both sums to be converted into Russian roubles at the rate applicable at the date of settlement;
(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 26 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following partly dissenting opinion of Judge Gyulumyan is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE GYULUMYAN
I find that I am unable to share the opinion of the majority that there has been no violation of Article 6 § 1 of the Convention on account of the alleged non-observance of the principle of equality of arms.
The principle of equality of arms is one element of the broader concept of fair trial, within the meaning of Article 6 § 1 of the Convention. It requires “a fair balance between the parties”, each party being given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-a-vis his opponent (see, among many other authorities, Yvon v. France, no. 44962/98, §31, ECHR 2003-V; and Kress v. France [GC], no. 39594/98, §72, ECHR 2001-VI ).
In the present case the prosecutor brought eviction proceedings against the applicant and her husband on behalf of the Oceanology Institute, a State-owned organisation, and a private individual, Mr M. The prosecutor subsequently participated in the first-instance and appeal hearings to protect the Oceanology Institute's and Mr M.'s interests.
I agree that the participation of a prosecutor in civil proceedings may be justified in certain circumstances. However, I consider that such participation should be limited to exceptional cases and should only be used for protection of the rights of vulnerable groups – children, disabled people and so on – who are unable to protect their interests themselves, or where numerous citizens are affected by the wrongdoing concerned, or where State interests are seriously affected and cannot be protected otherwise (see Menchinskaya v. Russia, no. 42454/02, § 35, 15 January 2009). None of those exceptional circumstances is present here. I cannot agree with the majority that the participation of the prosecutor was necessary to protect State property. The flat in question, although it belonged to the State, was under the management of the Oceanology Institute. It was the Institute's responsibility to protect that property against trespass and to participate in any related litigation. Indeed, the Institute participated in the proceedings through its representative. Nothing in the case file shows that it encountered any difficulties in bringing or pursuing proceedings and therefore there was no risk that the state interests would be left unprotected. I am unable to distinguish any well-founded, recognisable aim or public interest for the prosecutor's interference in this otherwise ordinary civil dispute. Therefore, the participation of the prosecutor cannot be said to be justified in the circumstances of the present case.
In my view, this judgment regrettably sends the wrong signal to those contracting parties who strive commendably to define the important but limited role which public prosecutors should play in civil proceedings.
I consider that in this case, as in the similar case of Menchinskaya v. Russia, the principle of equality of arms was violated.