Information Note on the Court’s case-law No. 119
May 2009
Batsanina v. Russia - 3932/02
Judgment 26.5.2009 [Section III]
Article 6
Civil proceedings
Article 6-1
Fair hearing
Equality of arms
Bringing of civil action by public prosecutor’s office: no violation
Facts: The applicant’s husband was a staff member of a State-owned scientific institution. He was placed on a waiting list to receive housing. In December 1998 the applicant and the Institute signed an exchange agreement whereby the applicant transferred title to her own flat to the Institute in order to obtain a larger one. The Institute subsequently discovered that the applicant had sold her old flat in March 1998. The town prosecutor, acting on behalf of the Institute and the person to whom the applicant’s old flat had been allocated, 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 a declaration that he was entitled to the new flat he had received from the Institute. The first-instance court heard the prosecutor, the applicant, her husband and their counsel. The institution and the third party’s representatives were also present and made submissions to the court. In 2001 the court granted the public prosecutor’s claim and dismissed the counter claim. The applicant appealed unsuccessfully. The prosecutor was present at the appeal hearing. There was no written proof that the applicant had received any summons for the appeal hearing.
Law: Equality of arms: In the instant case the prosecutor had not participated in the judicial deliberations. His lawsuit had been communicated to the applicant and she had used the opportunity to reply to the prosecutor’s arguments. Nevertheless, the Court reiterated that since a prosecutor or comparable officer, in undertaking the status of a procedural plaintiff, became in effect the ally of one of the parties, his participation was capable of creating a feeling of inequality in respect of the other. 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. The fact that a similar point of view had been defended before a court by several parties or the fact that the proceedings had been initiated by a prosecutor did not necessarily place the opposing party in a position of “substantial disadvantage” when presenting her case. The Court did not exclude that support by the prosecutor’s office of one of the parties could be justified in certain circumstances, for instance for the purposes of protecting vulnerable persons, or where a large number of people were affected by the wrongdoing, or where identifiable State assets or interests needed to be protected. The applicant’s opponent in the proceedings in question was a State-owned organisation. A private individual had also had a vested interest in the outcome of the proceedings. Although both organisation and the private individual had been represented in the proceedings, the public prosecutor had acted in the public interest in bringing proceedings against the applicant and her husband. The applicant and her husband had also been represented by counsel and had made both written and oral submissions to the first-instance court. It had not been shown that the prosecutor’s decision to initiate civil proceedings had no legal basis under Russian law, or that that decision fell outside the scope of his discretion. In the circumstances of the case there was no reason to believe that the institution of the civil proceedings by the public prosecutor was aimed at or had the effect of unduly influencing the civil court or preventing the applicant from mounting an effective defence. Thus, in the Court’s opinion, the principle of equality of arms, requiring a fair balance between the parties, had been respected.
Conclusion: no violation (six votes to one).
Appeal hearing: The Court found a violation of Article 6 § 1 on account of the domestic authorities’ failure to inform the applicant of the appeal hearing.
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This summary by the Registry does not bind the Court.
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