Communicated on 4 October 2016
THIRD SECTION
Application no 27103/10
Maksim Vyacheslavovich BYKOV against Russia
and 3 other applications
(see list appended)
1. The applicants are Russian nationals.
A. The circumstances of the cases
2. The application numbers, the dates of lodging the applications, the applicants’ names and their personal details are set out in the Appendix.
3. The facts of the cases, as submitted by the applicants, may be summarised as follows.
4. The applicants served in various national law-enforcement agencies and were dismissed from service. They challenged their dismissals in courts.
1. Application no. 27103/10 Bykov v. Russia
5. The applicant served in the Armed Forces.
6. On 2 February 2009 the applicant was struck out of the personnel record of the military unit without payment of allowances.
7. On 29 April 2009 the applicant brought proceedings against the commanders of the respective military units challenging the dismissal from military service and claiming inter alia reinstatement.
8. On 29 July 2009 the St Petersburg Garrison Military Court (Санкт‑Петербуржский гарнизонный военный суд) heard the public prosecutor, who argued that all but one the applicant’s claims should have been dismissed, the applicant and two representatives of the defendants, and satisfied the applicant’s claims in part.
9. The applicant appealed and on 26 October 2009 the Military Court of the Leningrad Command (Ленинградский окружной военный суд) heard the public prosecutor, who argued that the appeal should have been dismissed and the applicant, and upheld the first-instance judgment.
2. Application no. 24448/11 Litvin v. Russia
10. The applicant held a position of a deputy prosecutor of Noyabrsk in the Yamalo‑Nenets Autonomous District.
11. On 25 March 2010 the prosecutor’s office initiated an internal investigation of the applicant’s conduct, which was completed on 25 May 2010.
12. On 4 June 2010 the internal investigation was initiated for the second time and finalized the same day.
13. On 7 June 2010 the applicant was discharged from the prosecutor’s office.
14. On 27 July 2010 the applicant brought an action to the Salekhard Town Court of the Yamalo‑Nenets Autonomous District (Салехардский городской суд Ямало‑Ненецкого автономного округа) against the local prosecutor’s office for reinstatement and payment of wages for the period of forced absence.
15. On 27 August 2010 the Town Court heard the public prosecutor, who argued that the applicant’s claims should have been dismissed, the defendant’s representative and the applicant and his two representatives, and dismissed the claims.
16. The applicant lodged a cassation appeal challenging inter alia the public prosecutor’s participation in the proceedings and alleging unfairness of the latter.
17. On 18 October 2010 the Court of the Yamalo‑Nenets Autonomous District (Суд Ямало‑Ненецкого автономного округа) heard the public prosecutor, who argued that the cassation appeal should have been dismissed, the defendant’s representative and the applicant’s representative, and upheld the first-instance judgment.
3. Application no. 69079/13 Deyneko v. Russia
18. The applicant, a military official of the Federal Security Service of the Primorskiy Region, initiated three sets of civil proceedings against his former employer.
19. On 1 April 2013 the applicant challenged the actions of the officials of the Directorate related to his disciplinary punishment, dismissal from military service and removal from the list of those in need of residential premises.
20. On 17 June 2013 the Military Court of the Vladivostok Garrison (Владивостокский гарнизонный военный суд) heard the defendant’s representative, the applicant and his two representatives, and satisfied the claims in part.
21. The applicant appealed and on 12 September 2013 the Military Court of the Pacific Fleet (Тихоокеанский флотский военный суд) heard the public prosecutor, who argued that the appeal should have been dismissed, the applicant and two representatives of the defendant, and upheld the first‑instance judgment.
22. The applicant lodged a cassation appeal, which was refused on 14 February 2014 by the Military Court of the Pacific Fleet.
23. On 8 April 2014 the Supreme Court of the Russian Federation (Верховный суд Российской Федерации) refused the applicant’s second cassation appeal.
4. Application no. 21695/14 Kulnev v. Russia
24. On 20 December 2012 the applicant, an official of the internal affairs agency of the Voronezh Region, was dismissed.
25. The applicant brought an action against the Head Department of the Ministry of Internal Affairs of the Voronezh Region for acknowledgement of unlawfulness of the results of the internal investigation and of the order on his dismissal as well as for reinstatement.
26. On 11 June 2013 the Central District Court of Voronezh (Центральный районный суд г. Воронежа) heard the public prosecutor, who argued that the applicant’s claims should have been dismissed, the defendant’s representative, and the applicant and his representative, and dismissed the applicant’s claims.
27. The applicant appealed and on 3 September 2013 the Voronezh Regional Court (Воронежский областной суд) heard the public prosecutor, the defendant’s representative, and the applicant and his two representatives, and upheld the first-instance judgment.
28. The applicant lodged a cassation appeal, which was refused by the Regional Court on 11 October 2013.
29. On 19 December 2013 the Supreme Court refused the applicant’s second cassation appeal.
B. Relevant domestic law
30. The Code of Civil Procedure of the Russian Federation (“the RF CCP”), as in force at the material time, read as follows:
Article 45. Participation of a prosecutor in the proceedings
“3. A prosecutor shall join the proceedings and give opinion in the cases on eviction, reinstatement at work, compensation for harm caused to life or health and in other cases stipulated by the present Code and other federal laws, for the purpose of exercise of his powers. Non-appearance of the prosecutor, notified of the time and place of the hearing, shall not constitute an impediment to hearing of the case.”
31. The Order of the Prosecutor-General of 26 April 2012 N 181 “Ensuring the participation of prosecutors in civil proceedings”, as in force at the material time, provided:
“In connection with amendment of the RF CCP, for the purpose of effective implementation by the prosecution authorities of the tasks of protection in civil proceedings of the lawful rights and interests of the citizens, State and society, pursuant to section 1 of Article 17 of the Federal Law “On the Public Prosecution Service of the Russian Federation”, I order:
...
2. To consider that the main duties of the prosecutors, ensuring participation in the civil proceedings, are:
...
joining the proceedings at any stage and giving opinions in the cases on eviction, reinstatement at work, compensation for harm caused to life or health and in other cases stipulated by the RF CCP and other federal laws;
lodging of appeal, cassation and supervisory review complaints against judicial acts in civil cases, listed in Article 45 of the RF CCP, and other cases, in consideration of which the prosecutor either participated or was entitled to participate.
...
4. To ensure participation of a prosecutor in hearing by the trial, appeal, cassation and supervisory review courts of the cases in the actions (applications) of a prosecutor.
...
4.8. To the prosecutors of the subjects of the Russian Federation, military and other specialized prosecutors, prosecutors of towns (districts) and their deputies to personally participate in judicial consideration of the civil cases, which have special significance for protection of rights and interests of citizens, an indefinite number of persons, the Russian Federation, subjects of the Russian Federation and municipal entities.
...
6. To ensure obligatory participation of a prosecutor in all judicial instances in the cases, in which such participation is foreseen by the provisions of the RF CCP and other federal laws, in particular: on eviction, reinstatement at work, compensation for harm caused to life or health ...”
32. The Prosecutor’s Office Act of 17 November 1992, as in force at the material time, provided:
Article 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 the [courts] and shall challenge any court decisions, sentences, orders and rulings which are contrary to the law.”
Article 27. Prosecutor’s powers
“1. ... In the exercise of the assigned functions the prosecutor shall:
...
take measures to prevent and suppress infringements of rights and freedoms of a person and citizen, bring to responsibility those in breach of law, and compensation for the inflicted damage;”
Article 35. Prosecutor’s participation in court hearings
“1. The prosecutor shall take part in court hearings where foreseen 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 join the case at any stage of the proceedings, if the protection of rights of citizens and lawful interests of society or the State so requires.
4. The powers of the prosecutor, participating in court hearings, are defined by the procedural legislation of the Russian Federation.”
33. Information letter of the Prosecutor-General’s office of the Russian Federation dated 27 January 2003 N 8‑15‑2003 “On some aspects of the participation of a prosecutor in civil proceedings, connected with adoption and entry into force of the RF CCP” reads as follows:
“For the prosecutors to exercise their powers it is suggested to mind the following:
1. The powers of participation in civil proceedings in the courts of general jurisdiction shall be exercised by a prosecutor in three forms:
...
(b) by joining the proceedings in order to give opinions in the cases on eviction, reinstatement at work, compensation for harm caused to life or health and in other cases ... for the purpose of exercise of the conferred powers;
...
If a prosecutor joins the proceedings to give an opinion in the case as set forth in section 3 of Article 45 of the RF CCP, the presiding judge upon examination of all the evidence calls on him to speak along with the representative of the State authority or municipal authority giving opinion in the case subject to Article 47 of [RF CCP].
In the judicial pleadings a prosecutor in the indicated category of cases pleads first (art. 190 of the RF CCP).
3. In the second judicial instance a prosecutor participates in appeal and cassation proceedings.
...
If a prosecutor did not for any reason actually participate in the first instance, although was supposed to participate subject to Article 45 of the RF CCP, he is pursuant to Articles 34 and 35 of the RF CCP a person participating in the case and shall be entitled to appeal against the court acts in these cases by appeal and cassation submissions.”
C. Relevant Council of Europe documents
34. 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 Office Act] of the Russian Federation. Its relevant provisions provide as follows:
“57 ... 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).
...
13. 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).
14. Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well-grounded reasons (principle of non‑discrimination).
...
74. 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.”
COMPLAINT
The applicants complain that participation of a prosecutor in the civil proceedings was contrary to Article 6 § 1 of the Convention, inter alia by undermining the principle of equality of arms.
QUESTIONS
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards involvement of a prosecutor in these proceedings?
2. Did the applicants exhaust available and effective domestic remedies in respect of the prosecutor’s participation in the relevant proceedings? If not, what were the remedies they had at their disposal?
3. What were the grounds in the domestic law and/or practice allowing for the prosecutor’s participation in the present sets of proceedings?
4. What were the reasons justifying the prosecutor’s participation in the proceedings?
5. Did the domestic courts duly review the above reasons having regard to individual situation of each party to the proceedings? Did they consider any impact it had on the equality of arms in the proceedings?
APPENDIX
No.
Application no.
Lodged on
Applicants’ name
date of birth
place of residence
Final judgment
27103/10
23/04/2010
Maksim Vyacheslavovich BYKOV
26/04/1978
St Petersburg
Military Court of
the Leningrad Command,
26 October 2009
24448/11
08/04/2011
Yuriy Mikhaylovich LITVIN
05/04/1971
Yekaterinburg
Court of the Yamalo-Nenets Autonomous District,
18 October 2010
69079/13
25/10/2013
Andrey Vladimirovich DEYNEKO
29/03/1971
Slavyanka,
Primorskiy Region
Supreme Court of the Russian Federation,
8 April 2014
21695/14
03/03/2014
Yevgeniy Viktorovich KULNEV
19/09/1976
Khokholskiy,
Voronezh Region
Supreme Court of the Russian Federation,
19 December 2013
Full & Egal Universal Law Academy