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THIRD
SECTION
CASE OF BATSANINA v. RUSSIA
(Application
no. 3932/02)
JUDGMENT
STRASBOURG
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:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Boštjan
M. Zupančič,
Anatoly Kovler,
Alvina
Gyulumyan,
Egbert Myjer,
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:
PROCEDURE
- The
case originated in an application (no. 3932/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Svetlana Ksenofontovna
Batsanina (“the applicant”), on 10 January 2002.
- The
applicant, who had been granted legal aid, was represented by
Mr G. Nikolayev, a lawyer practising in Moscow. The Russian
Government (“the Government”) were represented by Mr
P. Laptev, the then Representative of the Russian Federation at
the European Court of Human Rights.
- On
22 May 2006 the President of the Third Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in the town of Gelendzhik, in
the Krasnodar Region.
A. Civil proceedings
- The
applicant's husband was a staff member of the Oceanology Institute of
the Russian Academy of Sciences, a State-owned institution. In 1977
he was placed on a waiting list to receive housing. In August 1998 he
was on the top of the list. In order to obtain a larger flat from the
Institute, it was agreed that the applicant would transfer title to
her own flat to the Institute. On 4 December 1998 the applicant
and the Institute signed an exchange agreement. The Institute
subsequently discovered that the applicant had sold her old flat in
March 1998.
- On
an unspecified date, having become aware of the above transactions,
the Gelendzhik town prosecutor, acting on behalf of the Institute and
the person who had been allocated the applicant's flat (a Mr M),
brought proceedings against the applicant and her husband to have the
exchange agreement invalidated and to evict the applicant's family
from the flat granted to her husband. The applicant's husband
brought a counter-claim seeking the acknowledgement of his right to
the new flat received from the Institute.
- On
9 March 2000 the Gelendzhik Town Court of the Krasnodar Region
granted the public prosecutor's claim. On 25 April 2000 the Krasnodar
Regional Court quashed the judgment and ordered a re-examination of
the case by the first-instance court.
- The
first instance heard the prosecutor, the applicant, her husband and
their counsel. The Oceanology Institute's and Mr M's representatives
were also present and made submissions to the court. On 1 June 2001
the Town Court granted the public prosecutor's claim. On 18 June 2001
the Town Court dismissed the counter-claim in a separate judgment.
The applicant appealed. On 16 August 2001 the Regional Court
upheld the judgments of 1 and 18 June 2001. The prosecutor was
present at the appeal hearing. There is no written proof that
the applicant received any summons for the appeal hearing scheduled
for 16 August 2001.
- On
30 January 2003 the Supreme Court refused to initiate supervisory
proceedings in respect of the above judgments. It rejected, inter
alia, the applicant's complaint about non-notification of the
appeal hearing, noting that the parties had been apprised of it.
B. Criminal proceedings against the applicant
- In
the meantime, on 4 February 2000 criminal proceedings were instituted
against the applicant on suspicion of embezzlement in relation to the
same facts. On 19 December 2000 the case was discontinued for
lack of a corpus delicti. On 15 August 2006 the above decision
was quashed and the preliminary investigation was resumed. Its
outcome remains unclear.
II. RELEVANT DOMESTIC LAW
A. Legislation on the role of prosecutors in court
proceedings
- The RSFSR Code of Civil Procedure (CCP) in force at
the material time read as follows:
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...”
- The
Prosecutor's Offices Act (Federal Law no. 2202-I
of 17 November 1992), as in force at the material time provided:
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
- Article 106 of the RSFSR CCP provided that a summons
was to be served on the parties and their representatives in such a
way that they would have enough time to appear at the hearing and
prepare their case. Where necessary, the parties could be summoned by
a phone call or a telegram. Pursuant to Articles 108 and 109, court
summonses were to be sent by mail or by courier and served on the
person who was a party to the case.
- According to Instruction no. 8 issued by the
Judiciary Department of the Supreme Court of Russia on 29 January
1999, in force at the material time, there was no requirement for
registering acknowledgment-of-receipt cards for summons; the cards
were to be filed into the relevant case files (point 12). Under
Instruction no. 171 issued on 29 December 1999, the storage
period for case files in civil cases examined by a first-instance
court on the merits varied from five to fifteen years depending on
the nature of the case; certain case files had to be stored for an
indefinite period of time; the storage period for case files in civil
cases examined by a court of appeal amounted to three years;
registers of incoming correspondence were to be kept for three years;
copies of summons issued by regional courts were to be kept for five
years.
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
- The relevant part of the Parliamentary Assembly's
Resolution 1604 (2003) On the Role of the Public
Prosecutor's Office in a Democratic Society Governed by the Rule of
Law reads as follows:
“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...”
- The European
Commission for Democracy through Law (the Venice Commission) at its
63rd plenary session (10-11 June 2005) adopted an Opinion on the
Prosecutor's
Offices Act (see above). Its relevant provisions
provide as follows:
“...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”.
- Opinion
no. 3 (2008) adopted by the Consultative Council of European
Prosecutors, an advisory body set up by the Council of Europe
Committee of Ministers by its decision of 13 July 2005, contains the
following comparative analysis [internal footnotes omitted]:
“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...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE PRINCIPLE OF EQUALITY OF ARMS
- The
applicant complained that the principle of equality of arms in the
civil proceedings had been infringed as the prosecutor had brought
the proceedings in the interest of a State institution and a private
person. She relied on Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant contended that the prosecutor's right to institute civil
proceedings should have been exercised only if the person concerned
was unable to do so herself, for instance in view of her state of
health, age, mental condition or another valid reason. Neither reason
was present in the instant case. The first plaintiff was a wealthy
State-owned institution. The prosecutor's rights were wider than
those of an ordinary plaintiff and his or her objectivity was open to
doubt. The prosecutor was the first to plead before the court and had
an opportunity to address the court before the closure of the
proceedings.
- The
Government submitted that the prosecutor's decision to initiate civil
proceedings had been based on Article 41 of the RSFSR Code of Civil
Procedure (see paragraph 11 above) and his obligation to protect the
interests of the State and its nationals, namely the interests of the
persons awaiting housing. The prosecutor's interest in the
proceedings was of a procedural nature; he acted in his own right but
also in the defence of other persons' rights.
- The
Court reiterates that 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 must be given a
reasonable opportunity to present his case under conditions that do
not place him at a substantial disadvantage vis-à-vis
his opponent (see Yvon v. France, no. 44962/98,
§ 31, ECHR 2003 V; Nideröst-Huber v.
Switzerland, 18 February 1997, § 23, Reports of
Judgments and Decisions 1997 I; and Kress v. France
[GC], no. 39594/98, § 72, ECHR 2001-VI).
- Referring
to its previous case-law on the role of public prosecutors outside
the criminal law field, the Court reiterates that in a number of
cases it has clarified that the mere presence of the prosecutor or
comparable officer at the courts' deliberations, be it “active”
or “passive”, is deemed to be a violation of Article 6 §
1 of the Convention (see Martinie v. France [GC],
no. 58675/00, § 53, ECHR 2006 ...). In
other cases the Court has also examined whether the submissions of
the advocate-general or similar officer have been communicated to the
applicant/party and whether the parties have had the opportunity to
reply to them (see Lobo Machado v. Portugal, 20 February
1996, § 31, Reports of Judgments and Decisions
1996 I; K.D.B. v. the Netherlands, 27 March 1998, §
43, Reports of Judgments and Decisions 1998 II and Göç
v. Turkey [GC], no. 36590/97, § 55, ECHR 2002 V).
- The
present case, however, raises different issues, since the prosecutor
did not participate in the judicial deliberations; his lawsuit was
communicated to the applicant and she used the opportunity given to
her to reply to the prosecutor's arguments. Nevertheless, the Court
reiterates that since a prosecutor or comparable officer, in
undertaking the status of a procedural plaintiff, becomes in effect
the ally or opponent of one of the parties, his participation was
capable of creating a feeling of inequality in respect of one of the
parties (see Kress, cited above, § 81, and F.W. v.
France, no. 61517/00, § 27, 31 March 2005). In
this context, the Court reiterates that while the independence and
impartiality of the prosecutor or similar officer were not open to
criticism, the public's increased sensitivity to the fair
administration of justice justified the growing importance attached
to appearances (see Borgers v. Belgium, 30 October 1991,
§ 24, Series A no. 214 B).
- The
Court considers that the fact that a similar point of view is
defended before a court by several parties or even the fact that the
proceedings were initiated by a prosecutor does not necessarily place
the opposing party in a position of “substantial disadvantage”
when presenting her case. It remains to be ascertained whether, in
the instant case, in view of the prosecutor's participation in the
proceedings, the “fair balance” that ought to prevail
between the parties was respected.
- The Court points out that its task is not to review
the relevant domestic law and practice in abstracto, but to
determine whether the manner in which they were applied to or
affected the applicant gave rise to a violation of Article 6 § 1
in the present case (see, among other authorities, Padovani v.
Italy, 26 February 1993, § 24, Series A no. 257 B, and
Hauschildt v. Denmark, 24 May 1989, § 45, Series A no.
154). Article 6 § 1 imposes on the Contracting States the duty
to organise their legal systems in such a way that their courts can
meet each of the requirements of that provision (see, among other
authorities, Sürmeli v. Germany [GC],
no. 75529/01, § 129, ECHR
2006 ...). In order to determine whether the acts of the
prosecutor's office in the present case were compatible with Article
6 § 1 of the Convention, the Court has had regard to relevant
Council of Europe documents (see paragraphs 15 and 16 above).
- It
is noted that the parties to civil proceedings, the plaintiff and the
respondent, should have equal procedural rights. The Court does not
exclude that support by the prosecutor's office of one of the parties
may be justified in certain circumstances, for instance for the
protection of vulnerable persons who are assumed to be unable to
protect their interests themselves, or where numerous citizens are
affected by the wrongdoing concerned, or where identifiable State
assets or interests need to be protected. The Court notes in that
connection that the applicant's opponent in the proceedings in
question was a State-owned organisation (compare Yavorivskaya v.
Russia, no. 34687/02, § 25, 21 July 2005). There was also a
private person who had a vested interest in the outcome of the
proceedings. Although both the Oceanology Institute and Mr M
were represented in the proceedings, the Court considers that the
public prosecutor acted in the public interest when he brought
proceedings against the applicant and her husband (compare
Menchinskaya v. Russia, no. 42454/02, §§ 37-40,
15 January 2009). The applicant and her husband were also
represented by counsel and made both written and oral submissions to
the first-instance court. It was not shown that the prosecutor's
decision to initiate civil proceedings had no legal basis under
Russian law, or that this decision fell outside the scope of his
discretion to bring proceedings on account of the particular
circumstances of the case (see paragraphs 11 and 12 above). In the
circumstances of the case there is no reason to believe that the
institution of the civil proceedings by the public prosecutor was
meant or had the effect of unduly influencing the civil court or
preventing the applicant from bringing an effective defence (see,
mutatis mutandis, Steel and Morris v. the United Kingdom,
no. 68416/01, § 67, ECHR 2005 II). Thus, in the Court's
opinion, the principle of the equality of arms, requiring a fair
balance between the parties, was respected in the present case.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE HEARING ON 16 AUGUST 2001
- The
applicant complained under Article 6 § 1 of the Convention (see
above) that she had not been informed of the appeal hearing on 16
August 2001.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government argued that the applicant had been informed of the appeal
hearing. However, they were unable to produce any evidence since the
relevant registers had been destroyed after the expiry of the
three-year retention period, pursuant to an Instruction on case
processing in district courts.
- The
applicant submitted that the Government should have relied on
Instruction no. 8 issued by the Judiciary Department of the
Supreme Court of Russia in 1999 (see paragraph 14 above). According
to that Instruction, there was no requirement for registering
acknowledgment-of-receipt cards for summons; the cards were to be
handed over to the court registrar for filing into the relevant case
file. Under another instruction, the storage period for case files in
civil cases amounted to fifteen years (ibid.)
- The
Court notes that the Government submitted no proof for their argument
that the applicant had been notified of the appeal hearing. Neither
did they specify the legal basis for the alleged destruction of the
relevant registers or produce a certificate confirming the act of
destruction after the expiry of the three-year period. Even accepting
that the Instructions referred to by the applicant were applicable in
his case, the Court cannot discern what storage period applied. It
has not been shown that the Government exhausted all reasonable
possibilities to adduce the relevant evidence. Lastly, it does not
follow from the text of the appeal judgment that the appeal court
verified whether the applicant had been effectively informed of the
appeal hearing.
- The
Court has frequently found violations of Article 6 § 1 of
the Convention in cases raising issues similar to the one in the
present case (see Yakovlev v. Russia, no. 72701/01, § 19
et seq., 15 March 2005; Groshev v. Russia, no. 69889/01,
§ 27 et seq., 20 October 2005; Mokrushina v. Russia,
no. 23377/02, § 20 et seq., 5 October 2006; Prokopenko
v. Russia, no. 8630/03, § 17 et seq., 3 May
2007; Subbotkin v. Russia, no. 837/03, § 18 et seq.,
12 June 2008, and Litvinova v. Russia, no. 34489/05, §
16 et seq., 14 November 2008).
- Having
examined the materials submitted to it, the Court concludes that the
applicant was not afforded an opportunity to attend the appeal
hearing and plead her case in adversarial proceedings.
- It
follows that there has been a violation of the applicant's right to a
fair hearing under Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 6, 13 and 14 of the
Convention that the courts had incorrectly determined the merits of
her counterclaim, that the lay judges had been appointed in violation
of Russian law, and that the length of the proceedings had been
excessive. Lastly, she alleged under Article 1 of Protocol No. 1
to the Convention that by bringing his claim against the applicant,
the prosecutor had unlawfully interfered with her possessions.
Lastly, she alleged under Article 34 of the Convention that the
resumption of the criminal proceedings against her was aimed at
intimidating her.
- The
Court has examined the remainder of the applicant's complaints and
considers that, in the light of all the material in its possession
and in so far as the matters complained of are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application should be declared inadmissible pursuant
to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“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.”
A. Damage
- The
applicant claimed reimbursement of the market value of the flat in
dispute in the domestic proceedings, namely 72,653 euros (EUR). She
also claimed EUR 25,000 in respect of non-pecuniary damage.
- The
Government submitted that the applicant's pecuniary claim had no
connection to the complaints made by her in the present case under
Article 6 § 1 of the Convention. They considered that the claim
in respect of non-pecuniary damage was excessive.
- The
Court has found a violation of Article 6 § 1 of the Convention
in relation to the appeal proceedings in the civil case against the
applicant. Having examined the materials in its possession, the Court
considers that it has not been established that the pecuniary claim
had a sufficient link to the violations found or was properly
substantiated; the Court therefore rejects it. At the same time,
having regard to the nature of the violation found and making its
assessment on an equitable basis, the Court awards the applicant EUR
1,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable.
B. Costs and expenses
- The
applicant claimed EUR 30 in respect of costs and expenses incurred in
the domestic proceedings.
- The
Government considered that the above claim was reasonable and
substantiated.
- Regard
being had to the information in its possession, the Court grants the
applicant's claim.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints concerning
the observance of the principle of equality of arms in civil
proceedings and the domestic authorities' failure to inform the
applicant of the appeal hearing admissible and the remainder of the
application inadmissible;
- Holds by six votes to one that there has been no
violation of Article 6 § 1 of the Convention on account of the
alleged non-observance of the principle of the equality of arms;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention on account of the
domestic authorities' failure to inform the applicant of the appeal
hearing;
- Holds 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, 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;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
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
Registrar President
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.
J.C.M.
S.Q.
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.
